Lords Sitting of 23 July 1990

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Liverpool.

Docklands Light Railway
Lord Brougham and Vaux Lord Brougham and Vaux asked Her Majesty's Government:
How much money is being invested in the Docklands Light Railway.
Viscount Davidson: My Lords, when the extensions to Bank and Beckton are complete, over £550 million will have been spent on the Docklands Light Railway.
Lord Brougham and Vaux: My Lords, I thank my noble friend for that very interesting and encouraging reply. Can he say what impact this massive sum of money will have on the carrying capacity of the railway and how much Olympia and York are contributing to the scheme?
Viscount Davidson: My Lords, the light railway is currently being upgraded and extended to the Bank. That will increase its carrying capacity to three times the present level. In regard to my noble friend's second question, the developers of Canary Wharf, Olympia and York, are contributing £70 million to the City extension project in recognition of an improved service.
Lord Gainford: My Lords, can my noble friend tell the House whether he has any information as to when the railway will be completed?
Viscount Davidson: My Lords, as regards the extension to the Bank, the first tunnel will be completed by the end of this year and the second one by the end of next year. I understand that the extension to Beckton should be completed in about two years' time, if not sooner.
Lord Underhill: My Lords, is this not a case of a successful public project already achieving a total of 33,000 passengers daily after being in operation for only three years? Further, in addition to the grant from the private sector, to which the noble Viscount referred, can he say how much money has been contributed by LRT itself and how much money it has raised by loans, bearing in mind that the only financial help from the Government has been the extension of the EFL?
Viscount Davidson: My Lords, I shall have to write to the noble Lord regarding the second part of his question as I do not have the details at present. However, I should point out to him that the construction of the initial railway was something of an act of faith by the Government. The great success of the docklands regeneration was prompted in part by the DLR itself. It could not have been foreseen at the time. The original forecast of the number of passengers being carried every day was 22,000 but, as
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the noble Lord said, it is currently between 32,000 and 34,000. The railway is doing extremely well in the circumstances.

AIDS
2.38 p.m.
Baroness Dudley Baroness Dudley asked Her Majesty's Government:
How many AIDS patients there are in the United Kingdom; what medical care facilities are available to them; and what the results have been of the publicity programme to warn young people of the dangers of the disease.
The Parliamentary Under-Secretary of State, Department of Health (Baroness Hooper): My Lords, information available to the Communicable Disease Surveillance Centre suggests that there are 1,564 people with AIDS in the United Kingdom. Inherent delays in the reporting of new cases and deaths mean that this can only be an approximate figure. The full medical facilities of the National Health Service are available to patients with AIDS, plus support from social services departments and voluntary agencies. Research shows that the public education campaigns have resulted in a high level of awareness of the way in which HIV is spread but suggests that continuing efforts are necessary to secure and sustain behaviour changes.
Baroness Dudley: My Lords, I thank my noble friend for that Answer. However, can she say whether she is satisfied with what is being taught in schools as regards the danger of AIDS?
Baroness Hooper: My Lords, the Government are determined to do everything necessary to prevent the spread of HIV infection. In that regard, one important focus of our efforts must be the education of young people about the risks of infection. Education material has been produced by the Department of Education and Science and the Health Education Authority for use in secondary schools in the context of wider teaching about personal and social responsibility. Your Lordships will remember the efforts made in this House on the Education (No. 2) Act 1986 in this respect. In addition, we have asked health authorities to pay particular attention to the local needs of young people in devising programmes of HIV prevention.
Lord Ennals: My Lords, I welcome the assurances given by the Minister. However, can she explain why there are such large regional differences in the spread of AIDS in the statistics in her department's publication Regional Trends? Further, as regards the figure of 1,822 in the report regarding those who are HIV-positive, can she explain why only one-sixth of the UK total are drug users when in Scotland it is 50 per cent. and in Wales only 5 per cent? Does she understand that extraordinary difference in the published figures?
Baroness Hooper: My Lords, it may be helpful in answering the noble Lord's query if I tell him that we are placing in the Library copies of the AIDS-HIV Quarterly Surveillance Tables. These are produced by the Public Health Laboratory Service AIDS Centre

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and by the Communicable Diseases (Scotland) Unit and contain detailed data on HIV and AIDS which may be useful to many of your Lordships, especially the noble Lord, Lord Ennals.
There is always a problem as regards figures because of under-reporting, and there may sometimes be a time-lag in the published figures as there is bound to be an interval between diagnosing a case and reporting it to the surveillance centre. I think that the noble Lord was asking especially about the interrelation between AIDS and drugs. Therefore, the noble Lord may find it useful to refer to the report which I mentioned.
Lord Ennals: My Lords, I am most grateful to the Minister. However, there must be a very profound or precise reason why there seems to be 10 times the proportion of drug users with HIV in Scotland than in Wales. Is there any explanation which the noble Baroness can give the House?
Baroness Hooper: My Lords, there may indeed be a precise reason for this difference. However, I am not in a position at present to be able to respond to the noble Lord with that sort of precision.
Lord Leatherland: My Lords, how does one person catch the complaint from another person?
Baroness Hooper: My Lords, as always, the noble Lord, Lord Leatherland, asks a difficult question. We know of 993 people who have been infected with HIV through normal heterosexual intercourse. We also know of about 4,000 people who have been infected as a result of intravenous drug misuse, haemophiliacs and others who have been affected by infected blood products. That is as far as I can go at the moment.
Baroness Masham of Ilton: My Lords, is the Minister aware that there are some excellent care models in London for AIDS sufferers, many of whom are helped by volunteers; but that there is a lack of facilities outside London? Can she do something about it?
Baroness Hooper: My Lords, there are a number of important and useful local initiatives, some of which take place in London. The education programme to which I referred in response to the Question on the Order Paper is a national programme for schools. The Health Education Authority's programme is a national one. We are making every effort to ensure that when any local initiatives prove useful information about them will be disseminated so that they can be used in other areas.
The Earl of Onslow: My Lords, it is with considerable diffidence that I refer to the question asked by the noble Lord, Lord Leatherland. He asked how the disease was transmitted. My noble friend omitted to say anything about homosexuality. I am not casting a moral judgment, but should not the Government give the correct answers rather than, from understandable embarrassment, give incorrect answers?
Baroness Hooper: My Lords, my noble friend, is as usual, right.
Lord Stoddart of Swindon: My Lords, I was going to ask a supplementary question similar to that asked by the noble Earl, Lord Onslow. If figures for two causes of HIV are printed in Hansard, the figures for HIV caused by homosexual activities between males should be recorded in Hansard. Will the noble Baroness give us those figures or, if not, will she arrange for them to be printed in the Official Report?
Baroness Hooper: My Lords, yes, I realise that there is some difficulty in that the figures that I quoted in answer to the Question on the Order Paper relate to the number infected as of this moment, whereas the figures I quoted in answer to the noble Lord, Lord Leatherland, obviously have to be subtracted from the total figure. I shall try to arrange for the appropriately extracted figures to be made available to the noble Lord.

Long-Term Unemployed
2.47 p.m.
Lord Dormand of Easington Lord Dormand of Easington asked Her Majesty's Government:
What is the number of long-term unemployed.
The Parliamentary Under-Secretary of State for Employment (Lord Strathclyde): My Lords, in April 1990, the latest available date, there were 539,725 claimants in the United Kingdom who had been unemployed for at least a year.
Lord Dormand of Easington: My Lords, will the Minister explain why that huge number of men and women is unaware of the economic miracle which has taken place under this Government? As the Government have now been in power for 11 years, and as the measures related to long-term unemployment have failed, is it not time for a complete reappraisal of the measures used to deal with long-term unemployment, especially as unemployment is now increasing again and is likely to do so for a long time?
Lord Strathclyde: My Lords, I thought that the noble Lord, Lord Dormand of Easington, was rising to congratulate the Government on the fact that long-term unemployment is now at its lowest level for seven years. We continue to have a variety of programmes aimed specifically at the long-term unemployed, such as employment training, Restart courses and job clubs.
Lord Wade of Chorlton: My Lords, is my noble friend aware that over the past two years the number of people employed in this country has increased by 1.5 million and that now, with 27 million people employed, there are more people employed than ever before? Does my noble friend agree that the Government have an excellent record in developing employment opportunities?
Lord Strathclyde: My Lords, I commend my noble friend for his words. He is correct. We now have more people working in this country than has ever been the case.
Baroness Turner of Camden: My Lords, is the Minister aware that long-time unemployment is difficult for the older worker? Is he also aware that I

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recently received a letter from a 54-year old in Southampton who lists no fewer than 18 different courses that he has tried in order to obtain employment, all of which were fruitless? What will be done about people in that position? It is quite unacceptable.
Lord Strathclyde: My Lords, the noble Baroness is right. The effects of long-term unemployment on older people continue to concern the Government. However, I must point out that among the over 50s, unemployment is less than half what it was three years ago. We have recently introduced a new framework on Restart counselling which includes Back to Work plans, a new advisory system of interviews, a unified advisory service and more rigorous follow up of those who repeatedly turn down offers of help.
Lord Molloy: My Lords, are the figures available for the rather worrying feature of unemployment involving young folk who have served and completed their apprenticeships and then go on the dole? Can the Minister say whether the matter has been examined and the figures are available? If not, will it be examined?
Lord Strathclyde: My Lords, even for young people aged from 18 to 24 years the figures are down by over a quarter since 1989. The total figure is less than a third of what it was three years ago. That is essentially good news, but we still have the programmes involved with getting people back to work as quickly and effectively as possible.
Lord McCarthy: My Lords, will the Minister agree that on his figures, if we adjust for changes in the increases or reductions in the claimant count, the number of long-term unemployed on previous estimates would rise to over 700,000? Does he further agree that when we take into account the use of Restart, Back to Work and ET to reclassify the long-term and short-term unemployed, the figures must be even greater?
Lord Strathclyde: My Lords, I do not know what the noble Lord, Lord McCarthy, is talking about. I have given the figures. If he feels that there is a problem with them, no doubt he can ask me another Question.
Baroness Phillips: My Lords, is the Minister aware that I have been at a conference at which his right honourable friend the Deputy Prime Minister said that the Government were interested in finding employment for the over 50s? Perhaps the Minister can tell us what the Government are doing since they are interested in the issue.
Lord Strathclyde: My Lords, as I said, we have beefed up the Restart scheme to encourage older people to find employment. We continually encourage employers to look at the full scope of the available workforce.
Lord Mason of Barnsley: My Lords, is the Minister aware that the numbers employed in manufacturing industry fell by 18,000 in March? That is according to the latest figures I have available. It was the largest fall in manufacturing employment since the beginning of 1989 when the figure was 46,000 in one year. Is he
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further aware that rising unemployment in industry means that our manufacturing base is being seriously eroded? Does that not bode ill for 1992?
Lord Strathclyde: My Lords, we are talking about the long-term unemployed, not people who are employed in manufacturing industries.
Lord Campbell of Alloway: My Lords, can my noble friend the Minister say how long it is before one becomes unemployed? Is it 12 months? If that is the right period, how are the figures broken down? They stop at the age of 60. But how are the figures broken down from the teenager to 30, and 30 to 60, in age groups?
Lord Strathclyde: My Lords, I can confirm to my noble friend that the definition applies after 12 months. As for the individual figures, we have three definitions: 18 to 24 year-olds; over 25s; and over 50s. I shall have to write to the noble Lord regarding those figures.
Lord Dean of Beswick: My Lords, the Minister's reply to my noble friend Lord Mason of Barnsley was that we were not talking about the manufacturing industries, but the long-term unemployed. Can the Minister tell us what proportion of the long-term unemployed come from the manufacturing industries? Surely that is important.
Lord Strathclyde: My Lords, I do not think that that is within the scope of the Question. Perhaps I may direct the noble Lord to the remark of my noble friend Lord Wade. He said that there were more people in jobs today than ever before.
Lord Rochester: My Lords, in one of his replies the Minister referred to employment training. As he knows, the application of employment training has come in for much criticism recently. Are the Government satisfied with the present position in relation to ET?
Lord Strathclyde: My Lords, we continually review employment training to make it more effective and responsive to the needs of employers.
Lord Dormand of Easington: My Lords, may I remind the Minister and his noble friend who spoke about the increased number of people in employment that I was not referring to that. I referred to long-term unemployment which is the biggest blot on the Government's employment record. Does the Minister realise that with more intelligent policies, the half million long-term unemployed—which figure is absolutely disgraceful—could be self-financing, with a decrease in social security payments and benefits and an increase in tax revenues?
Lord Strathclyde: My Lords, we believe in providing people with real long-term jobs. That is what we have been doing successfully since 1979.
Lord Tordoff: My Lords, can the noble Lord tell us what the level of long-term unemployed was for 1979, since he has just referred to it?
Lord Strathclyde: My Lords, I referred to the creation of real jobs since 1979. It is not possible to make a meaningful comparison with the long-term unemployment figures for 1979. However, I can tell

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the noble Lord, Lord Tordoff, that since 1982 there has been a considerable reduction in the number of long-term unemployed.
Lord Tordoff: My Lords, will the noble Lord accept that that answer is somewhat wide of the question?
Lord McCarthy: My Lords, will the Minister accept that the actual answer was 250,000?
Lord Strathclyde: My Lords, I have already replied to the noble Lord, Lord McCarthy. I know that he has a long running battle with the statistics that the Department of Employment provides. I have to tell the House that our figures are correct.
Lord Ennals: My Lords, bearing in mind that there is a frequent comparison with 1979 from different Ministers on different Questions, why, under this Question, will the Minister not give the figures for 1979?
Lord Strathclyde: My Lords, precisely because the figures are unadjusted and so subject to changes in coverage. There is no consistent seasonally adjusted series of figures available for the long-term unemployed, as there are for total unemployment. Prior to October 1982, the count was based on those registering at Jobcentres rather than those claiming at unemployment benefit offices. I believe that that fully answers the question of the noble Lord.
Baroness Turner of Camden: My Lords, is it not a fact that the Government have changed the way in which the statistics are calculated so many times—about 20—that meaningful comparisons have become almost impossible?
Lord Strathclyde: My Lords, we have changed the system of claimant count twice.

Agricultural Protectionism and the Third World
2.57 p.m.
Lord Stoddart of Swindon Lord Stoddart of Swindon asked Her Majesty's Government:
Whether, in connection with the Uruguay round of the GATT, they have made any calculation of the effects on underdeveloped countries of the removal of agricultural protectionism by industrial countries.
The Minister of State, Ministry of Agriculture, Fisheries and Food (Baroness Trumpington): My Lords, reform of agricultural policies worldwide will reduce distortions to trade and lead to more stable trading conditions. Developing countries will benefit from this and from lower import barriers. It is also recognised that the special needs and conditions of developing countries will be taken into account in the negotiations. These have yet to determine the reductions in support that will be made. I cannot comment in detail about the round's likely impact on developing countries.
Lord Stoddart of Swindon: My Lords, I thank the Minister for that helpful Answer and for the obvious
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personal attention that she has given to the matter. Has she seen some recent work on agricultural protection which shows that less developed countries would benefit to the tune of about £26 billion per year? It would be possible to make a reduction in aid to underdeveloped countries without hurting them and they would be able to reduce their overseas debt by £2.4 billion per year. Under those circumstances, is it not worth the Government putting the utmost pressure particularly on the EC to get rid of the awful agricultural protectionism that operates through the CAP?
Baroness Trumpington: My Lords, I am grateful to the noble Lord for drawing this matter to my attention. Estimates of this kind depend very much on the assumptions that are made. I do not wish to comment on these figures. However, I do not dispute the general conclusion that liberalisation of agricultural policies brings substantial benefits. I should, however, emphasise that the Uruguay negotiations are now focused on reductions and not on complete elimination of support.
The Earl of Onslow: My Lords, is my noble friend aware that agricultural subsidies for the world as a whole for this year amount to something in the region of 240,000 million dollars? Is she further aware that the underdeveloped nations have over-valued currencies and that when cheap corn is dumped upon them their own agricultural systems are subsequently ruined? Russia imports something like 40 million dollars worth of grain a year, and yet only 60 years ago Odessa was the great grain exporting port of the world. Unless we take all these facts into account and do something about the position, there will be quite horrendous trade distortions leading to an impoverishment of world trade.
Baroness Trumpington: My Lords, most studies suggest that multilateral liberalisation would significantly lower market prices for many agricultural products in the European Community. However, many studies conclude that the reduction in the price of dairy products, including butter, could be relatively small.
Lord Jay: My Lords, as the EC, under pressure from the French, is even now trying to obstruct real progress towards freer trade, what are the British Government doing to ensure that these negotiations do not collapse?
Baroness Trumpington: My Lords, I believe that I answered that question in my initial reply to a recent Question from the noble Lord. However, for the benefit of noble Lords, I shall repeat that all parties to the GATT round negotiations have agreed a long-term objective which is to provide substantial progressive reductions in agricultural support and protection, sustained over an agreed period of time, which would result in correcting and preventing restrictions and distortions in world agricultural markets. The UK is working hard with our EC partners to develop the Community's aggregate measure approach.
Lord Gallacher: My Lords, will not the loss of agricultural protection in developed countries lead to a corresponding loss of preference for certain exports by African, Caribbean and Pacific countries into the European Community?
Baroness Trumpington: My Lords, the Houston declaration stated that agricultural negotiations should provide for commitments to be made in an equitable way. We shall seek to ensure that the outcome does not discriminate against British farming structures and that it will proceed in the manner agreed in Houston.
Lord Hylton: My Lords, do the Government agree that agricultural and horticultural producers are always weak sellers of perishable commodities? Is it not a duty of governments to protect them, whether through marketing boards or by other means, from exploitation by powerful purchasers?
Baroness Trumpington: No, my Lords.

Business
3.3 p.m.
Lord Denham: My Lords, it may be for the convenience of the House to know that the Report stage of the Employment Bill will be adjourned at about 7 p.m. for about one hour and that during this adjournment the Third Reading of the Landlord and Tenant (Licensed Premises) Bill and the Second Reading of the Landlord and Tenant (Licensed Premises) (No.2) Bill will be taken.

Deputy Chairmen of Committees
The Chairman of Committees (Lord Aberdare): My Lords, I beg to move the first Motion standing in my name on the Order Paper.
Moved, That the Lord Graham of Edmonton be appointed to the panel of Lords acting as Deputy Chairmen of Committees for this Session.—(The Chairman of Committees.)
On Question, Motion agreed to.

House of Lords Offices: Select Committee
The Chairman of Committees: My Lords, I beg to move the second Motion standing in my name on the Order Paper.
Moved, That the Marquess of Cholmondeley be appointed a member of the Select Committee.—(The Chairman of Committees.)
On Question, Motion agreed to.

British Nationality (Hong Kong) Bill
3.4 p.m.
Read a third time.
Clause 1 [Acquisition of British citizenship]:
Lord Mishcon Lord Mishcon moved Amendment No. 1:
Page 1, line 6, leave out ("shall") and insert ("may").
The noble Lord said: My Lords, the House will remember that in Committee I ventured to move this amendment which I based upon an important constitutional issue. At that time I had support from several quarters of your Lordships' House, on the basis that this was a matter which should be carefully considered by the Government. I do not wish to make a long speech repeating what I said in Committee. Perhaps therefore I may be allowed to summarise the argument as follows.
The Bill before us makes it mandatory upon the Secretary of State for Home Affairs to register as British subjects those whose names are sent to him by the Governor of Hong Kong. By this amendment I do not wish to upset the basic purpose of this Bill. I have already respectfully made my comments to the House as to where my noble friends and I stand on the Bill. However, the point I am making to the House is that the prerogative which gives to the Home Secretary a discretion to register or not to register, unless the matter is one which is set upon certain conditions which are laid down and which someone fulfils, is quite wrong. That principle is incorporated in the British Nationality Act. If any Member of the House cares to mention those provisions, I shall deal with the matter in my reply.
The situation is that a governor and a committee are to assess points which are to be given to various people in Hong Kong on the basis of which, subject only to a character check, the Home Secretary is bound to grant British nationality. The argument against the word "may" which maintains the discretion of the Home Secretary—I respectfully submit that that should be the case—is that this Bill is meant to create a strengthening of morale in Hong Kong, and if the word "may" were to remain in the Bill, it might be interpreted as meaning that the Home Secretary may not necessarily carry out what is deemed to be the purpose of the Bill. He may decide, if say 50,000 names of heads of households are given to him, only to register 40,000 of them. With respect, that argument is rather poor as regards this distinct constitutional issue.
I have asked myself this next question and I now ask it of your Lordships. Has British prestige sunk so low in Hong Kong that a Minister's word is not accepted when he repeats both in this House and in another place that it is his firm intention to carry out the object of this Bill and to ensure that 50,000 heads of families, as selected, shall be registered as British citizens although he still has ultimate discretion on this matter?
Am I to understand that your Lordships believe that the word of our Government would not be accepted? If that is so, we have come to a pretty poor pass. Why do I want the discretion to remain? Quite apart from the constitutional issue, what would be the position if, in the course of the examination of character carried out by the Home Secretary, he made some inquiries and found out that the committee had made a mistake? He may find out that the committee must have made a mistake because the person concerned has been valued on pointage in regard to an

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occupation, for example, that he has never had. If such a position came out in the course of an inquiry, am I to understand that in his review on character the Home Secretary would have no option but still to register the person concerned? I am talking about innocent mistakes. I do not want to think about mistakes made on purpose.
The gift of British nationality is one that all of us regard as a valuable exercise of a right of the Queen herself, through her Minister. That privilege is protected by the word "may"; it is not protected by the word "shall". I beg to move.
Lord Renton: My Lords, when the noble Lord, Lord Mishcon, moved the same amendment at the Committee stage, I thought that he had done a useful service and I said that the argument that he put forward then deserved careful consideration. I said that because I was anxious, as he is still, lest the Secretary of State's discretion to grant or refuse citizenship should seem to be taken away or impaired. Since the Committee stage the noble Lord and my noble friend Lord Ferrers have had time to consider the matter in the light of what was said in that debate. So have I.
I described the matter then as a technical point, but it is an important one. I have consulted the British Nationality Act 1981. One finds in half a dozen of the early sections of that Act that the word "shall" is used in circumstances not entirely different from those in which it is used in this Bill. Section 43 of that Act, which is quite different, is very relevant to this debate. The essential part of that section states:
"Subject to subsection (3), the Secretary of State may, in the case of any of his functions under this Act … make arrangements for that function to be exercised—in any of the Islands by the Lieutenant-Governor … in any dependent territory … by the Governor".
The matters referred to are registration and naturalisation, renunciation, resumption and deprivation of British citizenship or British dependent territories citizenship. In that case a circumstance was envisaged which is very similar to what we find here.
Section 43 goes even further because it delegates completely to a Governor what in this case is not delegated completely to the Governor, as I shall hope to show. It says that the Governor may make recommendations after certain procedural matters have been approved by Parliament; in other words, he may make recommendations to the Home Secretary. Therefore the matter comes back to the Home Secretary in any event.
What does the Bill say? It says that the Home Secretary has to consider the matter when it comes back to him. The noble Lord is right in saying that the Secretary of State "shall register" as British citizens people recommended to him by the Governor, but that provision is preceded by the words:
"subject to the provisions of this section".
When we turn to Clause 1(5) we find that:
"Neither the Secretary of State nor the Governor shall be required to give any reason for any decision made by him in
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the exercise of a discretion vested in him by or under this Act and no such decision shall be subject to appeal or liable to be questioned in any court".
Therefore, the word "shall", which admittedly appears in the Bill, is qualified within Clause 1 of the Bill. It is further qualified by the provisions of Clause 6(2) which provides that citizenship may be refused if the Secretary of State has reason to believe that the person is not of good character. I have been making inquiries and I understand that that expression "not of good character" is not used in the narrow sense in which it is used in our criminal courts, but is used in the broad sense in which it has always been used in the application of the nationality Acts. It may be a security reason; it may be a question of a notorious form of bad behaviour short of conviction in the criminal courts in this country; it may refer to convictions in courts of another country.
I was grateful to the noble Lord for raising the matter previously. I acknowledge his right to do so again. However, having considered the matter carefully, I do not consider that there is any infringement of precedent or any departure from what has been the practice laid down by Parliament regarding the exercise by the Secretary of State of his discretion. For those reasons, on this occasion I cannot support the noble Lord.
I hope that the purely drafting point is not one on which he would wish the House to vote, because although some Bills have more signposting in them than others every Bill has to be considered within its own four corners and read as a whole. The fact that there is not always a link between one clause and another is not regarded by the courts as impairing the meaning of the Bill or its effect.
3.15 p.m.
Lord Lloyd of Kilgerran: My Lords, I do not often have the privilege of being able to support what the noble Lord, Lord Renton, has said although his birthday is on the same date as mine. Let that not detract from what I shall say now.
I presume to support what he said so masterfully because for decades I have been involved professionally with Hong Kong matters. Therefore, having considered very carefully what the noble Lord, Lord Mishcon, said—and I presume to intervene only from a personal point of view—I can see no substance in the speech of the noble Lord, Lord Mishcon, for supporting the amendment.
Lord Howie of Troon: My Lords, it will be plain to those who were present during the Committee stage a week ago that I support the amendment on slightly different grounds from those of my noble friend on the Front Bench. I do not say that I disagree with his constitutional grounds, for I agree with them, although we were all impressed by the comments of the noble Lord, Lord Renton, who is unsurpassed as a textual critic of legislation in this House.
I want to ensure, and I believe that the amendment ensures, that the Secretary of State will have some flexibility in dealing with the proposals made by the Governor of Hong Kong in so far as he proposes certain persons for citizenship under the Bill. As those

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who heard the debate last Monday will recall, I am particularly interested in one specific group, namely, Hong Kong engineers, who I believe are woefully under-represented in the schedule which is in the Library and which we have discussed in passing during the passage of the Bill.
Last week we agreed that an emergency existed—I think that those were the words of the noble Lord, Lord Harmar-Nicholls. But, as I reminded the Chamber, this is an emergency not only for Hong Kong but for certain sections of the British economy; in particular, consulting engineers. The drift away from Hong Kong through emigration strikes hard at a very important part of our economy. I want the word "may" to give the Secretary of State sufficient flexibility not at this stage to increase total numbers (though I should like to see that happen, as we shall discuss later today) but to adjust the proportions of each classification within the schedule. I should also like him to do something else.
Clause 6 of the Bill allows the Secretary of State to delete people from the lists because of certain aspects—shortcomings, I take it—of their character. It strikes me that when people are deleted from the list vacancies will be left. If the Secretary of State excludes people from the list, I should like him to have the flexibility to include other people on it so as to fill up the total number. I asked the noble Earl, Lord Ferrers, a question last Monday and received the following reply:
"Those who are entitled to British citizenship are those referred to as suitable by the Governor of Hong Kong".— [Official Report, 16/7/90; col. 676.]
As one expects from the noble Earl, it was a precise, courteous and exact reply but I did not find it wholly satisfactory. I wonder whether he could go further today to answer my question. If the Secretary of State is able to exclude people, for whatever reason, can he include other people for appropriate good reason?
I support the amendment both on the constitutional grounds advanced by my noble friend Lord Mishcon and also on grounds that I put forward—merely to allow the Secretary of State a more substantial flexibility than he has now.
Lord Kadoorie: My Lords, today Hong Kong lives in a climate of uncertainty but in general optimists outnumber pessimists by about 35 per cent. Full employment ensures continual development. Unfortunately, a substantial portion of senior Chinese professionals are leaving Hong Kong with consequent deterioration of the management skills upon which government, business and industry rely.
They fear that after 1997 they will no longer be able to enjoy the same freedom of choice as they now enjoy in a British Hong Kong. They fear that the basic common sense upon which rests the prosperity of Hong Kong will give way to political aspirations and that they will no longer be able to count on an impart al administration. Last but not least, they fear the lack of a valid passport and all that that implies.
During this period of transition the ability of government to provide leadership is severely handicapped by unwarranted and unjust criticism.
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Now more than ever it is essential for the United Kingdom Government to support and show their full confidence in their duly appointed representatives.
Some are inclined to relegate the westerner to the status of a second-class citizen. It is now important for us foreigners to stress that we expect and are entitled to the same consideration and respect as the Chinese demand from the Western community. When giving face to others it is necessary to insist on reciprocal treatment. The West has contributed much to China's prosperity and the past must not be forgotten. The West also has much to contribute in the future to China's development in many fields.
With that in mind, to create a climate of mutual trust with the Chinese Government in Beijing must be a primary objective. Both Britain and Hong Kong have a vital role to play in achieving that aim. It is in the interests of both the United Kingdom and the Hong Kong Government to monitor stability, which can only be based on the confidence that this Bill is designed to achieve. Any commitment must be clear and without ambiguity. Delay creates distrust and must be avoided. Therefore I suggest that we defeat the amendment.
Lord MacLehose of Beoch: My Lords, it was very valuable to hear my old friend, the noble Lord, Lord Kadoorie, speak on this subject. No one has contributed more than he has to Hong Kong. It was very valuable to hear his broad appreciation of the situation.
The mover of the amendment, the noble Lord, Lord Mishcon, said that it was not his intention to upset the basis of the Bill and that it would have come to a pretty pass if anybody thought that that would be its effect. I cannot follow him into the constitutional aspect. I can speak only on what I believe would be the effect in Hong Kong if this amendment were carried.
I am afraid that the people in Hong Kong would not see the situation in the way that he presented it. I do not believe that they would see it like that at all. As the clause stands they can see certainty—certainty that the Government's intention to give British citizenship to 50,000 heads of family will be carried out quickly and in full. They will see considerable significance in the substitution of the word "may", whatever words accompany it. I fear that it will be argued that the amendment has introduced not only a new layer of possible delay and restriction of number but also a United Kingdom political dimension. It will be asked with some plausibility: on what grounds other than political grounds could the Home Secretary contest the Governor's recommendations of people of good character within the maximum laid down?
As the noble Lord, Lord Mishcon, said, the Bill arises for the sake of morale in Hong Kong and to encourage people to stay in Hong Kong. It is to gain time—time, it is hoped, for the relationship with China to settle down and time perhaps for some perception of the opportunity as well as the danger of the future.
A better climate depends on many factors, but this Bill is a contribution to it which we in the United

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Kingdom can make. It is a brave initiative taken by the Government. It has received a considerable welcome in Hong Kong. It would be most unfortunate to appear now to want to detract from its force and invite speculation or even cynicism about it. I fear that that might be the case if the amendment were carried. I ask your Lordships to reject it.
3.30 p.m.
The Minister of State, Home Office (Earl Ferrets): My Lords, the noble Lord, Lord Mishcon, has returned to a subject that we debated at Committee. He has moved an important amendment. It is often the small word that has the most dramatic effect. To change the word "shall" to "may" may seem small but it has a remarkable effect. The noble Lord was peculiarly isolated on this. My noble friend Lord Renton was against him. The noble Lord, Lord Lloyd of Kilgerran, was against him. The noble Lord, Lord MacLehose, was against him. Even the noble Lord, Lord Howie of Troon, was against him; he was for the amendment but, as I understood it, did not agree with the reasoning of the noble Lord. The noble Lord was isolated; but such a sad position does not worry him too much. It would worry me, I am bound to say.
I undertook to consider the arguments which had been advanced for the amendment last week. The noble Lord, Lord Mishcon, pressed me peculiarly hard that I should do so with an open mind. He will be glad to hear that I did so with what I thought was an extraordinarily open mind. However, as I predicted, I believe that my original position is correct.
Perhaps I may mention one point to which the noble Lord, Lord Renton, referred; namely, joining one part of the Bill to another. He referred to cross references. When references to other parts of the Bill are inserted in the Act they act only as signposts, as my noble friend said and indeed as the lawyers would say. They add nothing to the Bill and their absence takes nothing out of the Bill. As my noble friend Lord Renton said, the Bill has to be read as a whole. Clauses 1 and 6 have equal authority. Clause 6 is not very far distant from Clause I and it therefore should not be difficult to read the two as a whole.
The Government remain opposed to the amendment for two reasons. First, it would give the Home Secretary an unfettered discretion to reject any recommendation which may be made to him by the Governor. He would have to discharge that discretion correctly. But the amendment would compel him to review the applications which the Governor had selected and to form his own judgment about them. It would mean that each case had to be reviewed twice: first, by the Governor; and then by the Home Secretary. That would not improve the quality of the decision since the Home Secretary would have no independent view on which applicants were of greatest value to Hong Kong. What it would do is delay the issue of assurances. The delay could well be a substantial one, as the noble Lord, Lord Harris, agreed last week. That would be entirely contrary to the objectives of the Bill.
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The noble Lord, Lord Kadoorie, said that what is needed now is confidence. I entirely agree with him, as I believe do all noble Lords. The amendment would have the effect of removing that confidence. It is true that my right honourable friend would wish to consider before registering whether he has any reason to believe that a person is not of good character. But in the great majority of cases that is unlikely to be a very time-consuming task.
The noble Lord, Lord Howie, asked whether it would be possible to fill the vacancies. If people are removed from the list on character grounds, the vacancies created can be filled. The Governor would be able to recommend the next most qualified candidate from the relevant occupation group. But it would not be possible, in our view, or right, for my right honourable friend the Home Secretary to be able to switch places between sections of the schemes or between occupational groups without the approval of Parliament.
The amendment would give the Home Secretary an unqualified discretion to withhold registration. He would have to carry out his own assessment of the merits of each and every application recommended by the Governor. That is a much bigger task and would inevitably slow down the issue of assurances in a scheme in which speed will be of the essence.
I shall now refer to the second reason. It is the one which the noble Lord, Lord Mishcon, said is a poor argument. I refer to it not because I think that it is a poor argument but because I believe it is a good one. The amendment would enable the Home Secretary to decide to issue fewer than 50,000 assurances. He could decide to put a halt to registrations before the ceiling had been reached. Some of the Bill's opponents in another place have called for precisely such a mechanism. If that possibility were to come about by accepting the amendment—that the Government intended to create a lower limit of 40,000, 30,000 or even 10,000 which the amendment would permit—confidence in Hong Kong would vanish and all the good of the Bill would be destroyed.
The noble Lord, Lord Mishcon, is always meticulously careful concerning what is put into Bills. By his amendment he would be putting in words which would permit the Home Secretary to do exactly what the noble Lord does not wish him to do. He shakes his head, but if he considers the amendment I believe he will find that that is so. The noble Lord then said that, surely to goodness, even if one put that in the Bill, if the Minister said, "I intend to have 50,000 people," the Minister's guarantee is surely enough.
I come back to the point that the noble Lord, Lord Kadoorie, mentioned. People in Hong Kong know that there are those in this country who are strongly opposed to granting 50,000 places. The Bill is all about creating confidence in the territory. That is why in our view it is very important that the Bill should guarantee the scale of the package. The amendment would undo what is in fact a cast-iron guarantee.
The noble Lord, Lord Mishcon, also asked what we would do if the committee had made a mistake. There

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would be no need to register this because Clause 1(1) makes it clear that the duty to register arises only where the recommendation is made under the scheme. If, because there was a mistake, the person was not covered by the scheme, on the wording of the Bill there would be no duty to register.
Perhaps I may also refer to the Royal Prerogative to which the noble Lord, Lord Mishcon, also referred. I know that it was a matter for concern at Second Reading. There are no prerogative powers with regard to the grant of citizenship. It has for many years been governed exclusively by statute. The grant of passport is a different matter. It may be that which some noble Lords have in mind. Passports are, and will continue to be, granted to British citizens under prerogative powers. The Bill is not concerned with the grant of passports.
For all those reasons—which I believe are powerful—I hope that the noble Lord will not seek to press his amendment. However, if he were to do so, I should have to advise your Lordships not to accept it.
Lord Renton: My Lords, before my noble friend sits down, there is one point that we should clear up, if we may. The question of the grant of nationality, or citizenship, has been governed by statute for many years, I believe since before the First World War. But when it was granted by statute it was in affirmation originally of the Royal Prerogative. I agree that it is academic.
Earl Ferrers: My Lords, if I may have the leave of the House to speak again, perhaps I may say that I am glad that my noble friend says it is academic. My understanding of the position is that the Royal Prerogative has certain powers until they are overtaken by statute. When they are overtaken by statute I he Royal Prerogative lapses. That is the case with regard to citizenship or nationality, but not with regard to passports.
Lord Mishcon: My Lords, I am deeply grateful to all those who have spoken in this debate on what I still consider to be a very important amendment. The noble Earl said that I stood in isolation on this occasion. Of course, at the Committee stage I did not stand in isolation. It was the Minister who stood with great courage, although embattled, against the noble Lords, Lord Harmar-Nicholls and Lord Renton. At the time he was asked to think again because it was an important point. I admire the noble Earl for standing with such bravery in isolation on that occasion. I hope that he has a similar admiration for me now.
Without boring your Lordships with a long address I shall cover the two points that have been made. I shall then come to a conclusion about how I see the matter in the interests of the people of Hong Kong. First, I am met with an interesting point; it is that one does not need to add the words "subject to" when they refer to provisions later in the Bill because the Bill ought to be taken as a whole. Therefore, there is no point in adding the words "subject to Clause 6", which negates Clause 1. There is no amendment before the House which calls for deliberation on that matter.
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However, as a matter of interest I refer your Lordships to the first words of the Bill. They are:
"Subject to the provisions of this section, the Secretary of State shall register".
If there is no point in including the words "subject to the provisions of this section", why do so? If there is a point, why not clean up the whole matter and clarify it by stating, "subject to the provisions of this subsection and Clause 6"? However, I repeat that such an amendment is not before your Lordships but out of sheer self pride I wished to make the point, which I still believe to be sound.
The real point at issue is that covered by the amendment. Noble Lords will join with me in saying that when one hears the noble Lords, Lord Kadoorie and Lord MacLehose, speak with all their knowledge and experience of Hong Kong and realises all that they have given to it, one listens with deep respect. One hopes that one will not find oneself in a position where what they say is gainsaid. I shall revert to that matter after the conclusion of the argument.
I still believe that the point has not been answered, if it be a point of principle which it is important to ram home. With his usual courtesy the noble Lord, Lord Renton, warned me in advance that he would refer to the British Nationality Act 1981. Therefore, he was responsible for the fact that I reminded myself of its provisions. He will be the first to say that the wording of Clauses 7 to 11 has nothing to do with "the Minister shall". The wording of Clause 7 is:
"A person shall be entitled … for his registration as a British citizen".
The difference is obvious. Under the old law one was entitled to be registered as a British subject merely by the accident of birth within the United Kingdom. It was the entitlement of an individual who complied with certain conditions. This Bill does not talk about complying with conditions but makes a points system the basis on which those who qualify under it will be entitled to be registered by the Secretary to State.
The noble Lord, Lord Renton, then referred to Clause 43 of the British Nationality Act. In doing so there was no question of deception, because the noble Lord is incapable of any such thing. He talked in terms of the exercise of the functions of the Secretary of State by governors. He will know that the last subsection of the clause reads,
"Arrangements under subsection (1)"—
they are arrangements for delegation to the governor—
"may provide for any such function as is there mentioned to be exercisable only with the approval of the Secretary of State".
Lord Renton: But need not.
Lord Mishcon: My Lords, from a sedentary position the noble Lord makes as wise a remark as he does from an upright position. In answer I say only that Parliament saw fit to ensure that in appropriate cases even that delegation of formal powers, as well they may be, must in some cases be subject to the approval of the Secretary of State. But away with technical and academic arguments—
Lord Lloyd of Kilgerran: Hear, hear!
Lord Mishcon: My Lords, when the noble Lord, Lord Lloyd, says, "Hear, hear", I should remind him of his eloquent speech to the House. It was to disagree with my amendment and then to sit down. I thought that the House was listening anxiously to know the reasoning behind his decision. However, he did not give it.
Lord Lloyd of Kilgerran: My Lords, I am sorry to interrupt the noble Lord. I thought that I had made my argument clear, but apparently not clear enough for the noble Lord, Lord Mishcon. I supported the argument so comprehensively and lucidly put forward by the noble Lord, Lord Renton. It is unusual for me to agree with the noble Lord, so far distant from these Benches, but on this occasion I supported him without qualification.
Lord Mishcon: My Lords, and without explanation. Obviously we want to conclude the matter. During the course of my remarks I said that when the noble Lords, Lord Kadoorie and Lord MacLehose, speak on behalf of the people of Hong Kong one listens with deep respect. I know that they regard the word "may" as putting doubt into the minds of people in Hong Kong about whether this Parliament is sincere in trying to help them, whether or not one agrees with the method of the help. My noble friends and I would be the last people in the world to want to interfere with the restoration of morale, which we know has sunk very low. It is for that reason and for that reason only that I shall not press the amendment to a Division.
Lord Lloyd of Kilgerran: My Lords, before the noble Lord, Lord Mishcon, sits down, and in order to make quite clear my position, I must tell him that I agree entirely with what was said by the noble Lord, Lord MacLehose. I had the advantage of meeting him in Hong Kong when he was a successful governor. I intervene only because the noble Lord, Lord Mishcon, had not appreciated the full support of my speech.
Amendment, by leave, withdrawn.
3.45 p.m.
Lord Bonham-Carter Lord Bonham-Carter moved Amendment No. 2:
Page 1, line 24, at end insert:
("(6) The Secretary of State may by order amend subsection (1) above by substituting a higher figure for the figure for the time being specified there if the Governor recommends that it is necessary to do so in order to maintain the stability of Hong Kong or the safety of its residents.
(7) An order under subsection (6) above shall not be made by the Secretary of State unless a draft of it has been laid before, and approved by resolution of, each House of Parliament.").
The noble Lord said: My Lords, perhaps we may move on from that interesting, sometimes academic, sometimes legal argument in which some of our legal and academic friends made a meal out of two words. The basis and the heart of the Bill lies in its attempt to produce within Hong Kong a renewed confidence in its future. Unless the Bill achieves that it will not have succeeded. I draw your Lordships' attention to the fact that any order made under this amendment would require the approval of each House of Parliament.
I do not propose to rehearse, other than extremely briefly, the arguments discussed on Second Reading, in Committee and now today for this amendment. It stands in my name and that of the noble Lord, Lord Wyatt of Weeford, whose name for some reason does not appear on the Marshalled List.
The arguments are, first,
"that the current rates of emigration and the reduced confidence which for a variety of reasons at present exist pose a real threat to Hong Kong's stability in the period before 1997. Secondly, most of those who are emigrating are doing so reluctantly because it is the only means of acquiring the assurance of a foreign passport. Thirdly, most of them would remain if an assurance of a foreign passport were available without the need for them to leave Hong Kong".—[Official Report, 29/6/90; col. 1822.]
I am surprised that no noble Lord has accused me of reading, because that was precisely what I was doing. The words that I was reading, which are powerful in argument and powerfully expressed, were said, as one would expect by the noble Earl, Lord Ferrers, on Second Reading. There was not one element of those words with which I would dissent.
What about the figure of 50,000? In that same speech introducing the Bill the noble Earl went on to say that 50,000 is only about half the number of key personnel who might be expected to emigrate from Hong Kong by 1997 at the present rate of emigration. The noble Lord, Lord Brabazon of Tara, rejected the amendment which I moved in Committee because he said that he thought—and I now believe quite rightly—that any change should be subject to the approval of both Houses of Parliament. The amendment before your Lordships today deals with that approval and meets that objection.
The noble Lord went on to say at col. 713 of Hansard that he believed that the Government had the right figure; that is, that 50,000 was the right figure. I asked in Committee and I ask again today: how can the Government possibly believe that 50,000 is the right figure? Everyone knows how that figure emerged. After hard bargaining in Cabinet, in which the Foreign and Commonwealth Office wanted a much higher figure and the Home Office wanted a much lower figure, 50,000 was a perfectly reasonable compromise in a smoke-filled room. It was not right in terms of reassuring or rebuilding the confidence of Hong Kong. It was right because the Government thought correctly that that was the figure which they could get through the House of Commons and which they could sell to their own party.
In any case, what is right today may not be right tomorrow. There is no reason to suppose that there will be no changes in China, in the situation of Hong Kong or in the general configuration of the world between now and 1997, either for better or worse. The Government have not been given any special gifts of prophecy. They have no prescience as to what developments will occur between China and Hong Kong in those crucial years. Hence, this amendment merely suggests that a little flexibility in the legislation would be nothing less than prudent.
That is precisely the point that was made by the noble Earl, Lord Ferrers, in explaining the selection scheme on Second Reading. He said that the scheme had to be kept flexible:
"so that Parliament can, if necessary, be asked to approve changes later on in response to changing circumstances in Hong Kong". [Official Report, 29/6/90; col. 1824.]
That is all that we propose in this amendment. As happens so often, the noble Earl, Lord Ferrers, has expressed the case for it far better than I could. In my view, 50,000 should not be regarded as a magic figure. If the Governor so recommends in response to a changed situation or circumstances and if he were, under those circumstances, to recommend an increase in order to maintain stability in Hong Kong, the higher figure could be approved by Parliament. This amendment seems to be wholly constructive and I hope that the noble Earl and the Government will accept it.
Lord Shepherd: My Lords, in Committee I supported the amendment which had been moved by the noble Lord, Lord Bonham-Carter. I did so with some hesitation because I did not believe that it went far enough in providing for parliamentary control. I am very grateful that the noble Lord has added to that original amendment the words which would require the approval of both Houses of Parliament.
In Committee I spoke of the long time during which I have had connections with Hong Kong. I omitted to say that for three years I occupied the position of Minister of State in the Foreign and Commonwealth Office with responsibility for the affairs of Hong Kong. I add my affection and support for the noble Lords, Lord Kadoorie and Lord MacLehose, and pay tribute to the service which they have rendered to the colony and the people of Hong Kong.
I have consistently supported the Government in their approach as regards China and Hong Kong. Like the noble Lord, Lord Kadoorie, I still retain a high measure of confidence that the agreement between the British Government and the Government of the Republic of China will be fully honoured because! I cannot recall any occasion, in my time or at any other time, when the Republic of China has in any way reneged upon any agreement which it has made in regard to Hong Kong. Therefore, there is no reason to believe that the 50 years provided for in the agreement will not be fulfilled.
I remember giving advice to a very senior Chinese businessman in Hong Kong to that effect. His retort was, "It is all very well for you. You have a British passport and British nationality; I have not. I shall have nowhere to go". We must bear that very much in mind, although not so much as regards those of adult age in Hong Kong. Many of them share the same degree of confidence as I have expressed and which the noble Lord, Lord Kadoorie, has expressed. However, the basic anxiety of those people is that by not seeking a new citizenship or nationality, they will be limiting the future of their children. I believe that that is perhaps the greatest driving force of those in Hong
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Kong who today seek a new nationality in what has been described as the haemorrhage within Hong Kong.
I support this Bill because I believe, as I said in Committee, that it will give a measure of flexibility to the Governor and to those responsible for Hong Kong in order to retain throughout the seven years those who are most important to the economic well being and the political stability within the government of Hong Kong.
I believe that my anxiety as to whether 50,000 is the right figure is shared in every quarter of the House. The truth is that none of us can possibly say whether it is the right figure. It may be more; it may be less. However, if the purpose of the Bill is to provide for the Governor and those responsible to retain key personnel within Hong Kong, I wonder whether it is right to limit it, as the Bill now does, solely to 50,000. I know that some noble Lords in this House are opposed to the Bill because it permits a further entry to our shores of persons who were previously not British. Others believe that the doors should be opened wider.
I have to say to the noble Lord, Lord Bonham-Carter, that if this amendment were passed it would not in any way loosen the regime which the Governor will clearly have to impose in the selection of those who apply to come to Britain. I do not believe that the amendment provides an easy option.
As we heard earlier, there is to be no flexibility within the various groupings—the definitions by which application can be made. In other words, there may be a shortage or fewer numbers may apply from the business community. I am quite sure that the noble Lord, Lord Kadoorie, would agree that the business community has already been very active in allowing their staff to proceed to America and Canada; so much so that sabbatical leave has been given in order that residence may be established. Those people have returned to Hong Kong to resume their positions within their companies. I do not believe that the pressure will be very great. The pressure will be greater in other areas, perhaps within the Civil Service.
I support the amendment for one reason only. At the end of the day the Governor may find that, in order to achieve what the Bill set out to do, perhaps 300 more applications should be approved. Under present circumstances he will be unable to do that. The Government will be unable to do it unless they come to Parliament with new primary legislation.
If the amendment were passed and the Secretary of State was satisfied with what the Governor recommended in the interests of Hong Kong—using 50,000 as the benchmark and treating the figures for the various groupings also as benchmarks—he could come to the two Houses with an order that could be dealt with rapidly. Those 300 applications could then be approved. I ask the Government to take this opportunity of having some flexibility in this very important issue of stability within Hong Kong.
Some may say that if we pass the amendment we may run the risk of losing the Bill. If the amendment

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were passed there is no doubt that the House of Commons could consider it tomorrow or even the following day. This House does that on numerous occasions when messages come from another place. We take them with expedition. The passing of the amendment in no way prejudices the passing of the Bill. I agree wholeheartedly with the noble Lord, Lord MacLehose, that the Bill should be passed before the Summer Recess. The passing of the amendment does not prejudice that position. It gives the Government the flexibility to be able to act if, in their final judgment, it is necessary to act, and to act with expedition.
4 p.m.
Lord Geddes: My Lords, persuasive though the noble Lord, Lord Shepherd, is, I cannot go along with his argument. I did not speak to the amendment in the name of the noble Lord, Lord Bonham-Carter, at Committee stage. There appeared to be a large number of participants at that stage and I had already spoken twice on other amendments. However, I spoke effectively to the amendment at Second Reading.
At Second Reading I said that I welcomed the Bill although I should have liked it to cater for more people. In that respect I am totally at one with the noble Lords, Lord Shepherd and Lord Bonham-Carter. The difference is that I said I supported the Bill, but would have liked it to have gone further. I cannot support the present amendment.
I strongly believe—as the noble Lord, Lord MacLehose, said in his intervention on the first amendment which we discussed this afternoon—that the amendment would create doubts and, dare I say it, false expectations in the minds of the people in Hong Kong whom it might or might not affect. That is the last thing that the Bill is meant to achieve, as the noble Lord, Lord Marsh, said at Committee stage. While I did not agree with all that he said he made the very strong point that the sole object of the Bill is to create confidence within Hong Kong. If we pass an amendment as presently tabled in the name of the noble Lord, Lord Bonham-Carter, it will only create yet another question mark in the minds of the Hong Kong people whom it might affect—yet another set of false horizons.
The Bill as it stands has been accepted. The noble Lords, Lord MacLehose and Lord Kadoorie, tell us—and we should pay a great deal of attention to them—that the Bill is acceptable to Hong Kong. I have heard the same. The noble Lord, Lord Shepherd, said—I believe this was his drift—that if this amendment were not passed it would require primary legislation to increase numbers if that became necessary. However, that was the position two years ago before this Bill arose. Legislatively we were not thinking of a Bill of this type two years ago. Who knows what the political climate will be in, say, another two years. If that climate is such that further legislation is needed in order to keep up the morale and the overall position in Hong Kong, I have no doubt that the Government
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will bring in further primary legislation. This is not the right time to do that. I certainly cannot support the amendment.
Lord Wyatt of Weeford: My Lords, I support the amendment to which my name should have been attached but for some slip in the Public Bill Office. The amendment does not risk large numbers being added to the 50,000 already due to come to Britain. If the situation deteriorates, under this amendment the Government would decide the numbers. The decision would have to be approved by both Houses. The amendment is necessary because a nasty situation could blow up between now and 1997. There might be an emergency which did not leave enough time for some new Act of Parliament to be introduced.
If the amendment were accepted it would not damage relations between Peking and Hong Kong. The Chinese attitude towards Hong Kongers wanting British passports for exit as a last resort is much calmer. The noises have become less hostile. Peking is beginning to realise that a limited number of British passports is a force for stability, and will genuinely anchor many middle range people whose work is essential to the continued prosperity of Hong Kong.
That is important both to Peking and to Hong Kongers. If the amendment were carried it would encourage Peking to behave tolerantly toward Hong Kongers. I hope that by 1997 the atmosphere will so improve that few, if any, of the 50,000 will come and the provisions in the amendment will never be necessary. The chances of good sense prevailing in Peking appear to be growing stronger. There is another important reason for the amendment. If it is accepted, more countries would be willing to take Hong Kongers in an emergency situation in the knowledge that we were doing our best, despite the smallness of our islands.
We tend to flatter ourselves that many Hong Kongers long to come here—even those with the right to do so. However, enterprising Hong Kongers look at Britain as a socialist state, despite Mrs. Thatcher. Their top income tax is 15 per cent. They pay no capital gains tax. As shareholders, when they own a company, they are taxed only once on the company's profits, and not a second time on dividends received from their own company. Britain is not seen, except sporadically, as having an agreeably warm climate. Parts of Canada, the United States and Australia are much preferred.
Most Hong Kongers who came here with passports allowing them to do so, would look upon Britain as a staging post. If they could not go to their preferred countries, they might well go to the warmer Mediterranean countries within the Common Market such as Italy or Greece where, incidentally, taxation is not the problem that it is here.
From 1st January 1993 anybody with a valid passport, whether from Hong Kong or this country, will be able to do that by right. That is the moment when 200 million Europeans will also be entitled to settle in this country if they so wish. I hope that the Government will realise that this amendment is not a

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departure from their policy but an integral part of it. It should cause no alarm for those who are afraid of a large influx of immigrants. We should not go on dwelling on the points system by which the noble Lord, Lord Mishcon, sets so much store. It is an old-fashioned Socialist outlook of equal shares of misery for all. I thought that had been abandoned. Bus drivers, lorry drivers and production workers are not in any way vulnerable to a malevolent communist regime as are the people doing the real work of keeping the colony going.
The amendment would go a little way towards redressing our removal of the right for Hong Kong citizens to hold British passports, a right which they have had for 120 years or more. There is some bitterness in Hong Kong over Macao where all the Chinese can have passports to go freely to Portugal or, incidentally, to any other part of the Common Market, yet we have denied that right to our Hong Kong subjects.
Acceptance of the amendment would make our cruel treatment of the Hong Kongers—and it is cruel—a little less shabby. They never wanted independence from Britain, unlike the immigrants from the Commonwealth countries whom we have accepted by the million. All they want to do is to continue their relationship with us but now find themselves being handed over to a singularly hard line communist government. Understandably, they are uncertain of their fate. I hope that it will be a good one, but at least in honour we should do all we can to give the Hong Kongers some comfort in case it is not.
4.15 p.m.
Lord Harmar-Nicholls: My Lords, occasionally this House seems to approach matters in a very unreal way, in my judgment. There is no such thing as a correct figure on this issue because nobody knows what the situation will be. However, the figure we now have has been negotiated and it appears that it can be accepted, without trouble, on all sides.
When I intervened during the Committee stage, I said that it was right to think about the stability of Hong Kong. It is absolutely right that we should endeavour to move out from Hong Kong, and the controllers of it, in a way that will leave the minimum of disruption, if any. Many people in this country—including myself and other noble Lords if they think about it—are concerned about the stability of Britain. We should not underestimate the feeling existing in important parts of Britain on the question of extending immigration by any numbers, however small.
I live the Midlands. My business is there and my day to day knowledge is of that area where this is an acute problem. I know people of the highest decency, whose outlook is as good and as high as any in this House, who are truly disturbed about the position. They expect the government of whatever complexion to take their feelings into account. I do not know the number of elections with which the noble Lord, Lord Bonham-Carter, has been connected and where he has had intimate contact with the voters of this country. I
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have had experience of many elections and have had that contact. I live in the area where I sought election and I know that decent people are at the point of being disturbed. When it was first suggested that more people should be allowed in, the possibility of some form of disruption which would have affected the stability of England was not all that far away. However, they have accepted the result of the negotiations, as indeed have the people of Hong Kong. We have met the deputation from Hong Kong. The people have our sympathy and our support to the point where to go further will produce more damage.
It would be stupid to risk what has been achieved from the negotiations so far conducted. The noble Lord, Lord Shepherd, supported the amendment by saying that the amendment was only giving flexibility, and that it may not be used. He said that the proposals in the amendment are only anticipating circumstances that might arise and that he hopes they do not. Those are his arguments. However, the moment we give the impression that we are moving away from the figure that has been negotiated and accepted, we are risking real reactions from important parts of this country. I agree with my noble friend Lord Geddes. If we create false hopes in Hong Kong, we are merely opening up wounds that have now healed because the position has been accepted.
I accept that we must have stability in Hong Kong. Of course we must. We want the transition to be happy and sensible; but it is not our job to ignore the reactions in our own country. I am not anti-immigration. Indeed, I supported with joy the many steps that have been taken in the past and I have been only too sorry when we have made mistakes which have caused all sorts of disruptions and ill-feeling in various parts of the country. However, we must keep to the decision that has been made. Let us hope that there will be no need to amend it later, and that the transition will go through smoothly. If it does not, I agree with the noble Lord, Lord Shepherd, that if there is a catastrophe which cannot be anticipated now, and if it is seen that it is our duty as a nation to do so because of our past connection and our desire to be honourable neighbours, we could make any necessary amendment in a matter of hours. Those of us who have sat in both Houses know, when war is threatened or declared, how quickly such action can be taken where the circumstances warrant it. I strongly urge the House to be aware of the danger of moving away from the figure that has been negotiated.
Lord Howie of Troon: My Lords, the noble Lord, Lord Harmar-Nicholls, was right to remind us that those of us with experience in campaigning at elections are close to the people. The noble Lord has had considerable experience. I remember an election in which he campaigned vigorously for several weeks and eventually won by three votes. I take it that had he campaigned for another half an hour or so he would have lost and he would have been in this House much quicker to enjoy life here!
I support the amendment. I do so for a reason which has been questioned by the noble Lords, Lord Harmar-Nicholls and Lord Geddes. They thought

1211
that the amendment might create doubt. That is not an inconsiderable argument. In fact, I believe that it will increase confidence. In saying that, I mean that it will increase confidence among the specific middle-management and professional groups to which the noble Lord, Lord Wyatt of Weeford, referred. They were not concerned in these particular negotiations. The negotiations were at a higher level. I have no doubt that the final figure adopted was after consideration of the effect that it might have upon public opinion in Britain, to which the noble Lord, Lord Harmar-Nicholls, referred.
Therefore, I do not regard the negotiations as creating confidence in Hong Kong as opposed to creating confidence in Britain, which is what I think they were really and ultimately intended to do. We all agree that the figure of 50,000 is an imaginary one. We take it that somebody wet his finger, stuck it in the air, tested the wind and decided that 50,000 seemed a reasonable figure. Once some families and relatives were added on, it came to a total of 150,000 or 250,000, all of it unknowable. Because it is unknowable it should not be enshrined in the Bill in such firm and fixed terms. That is why the amendment is important and acceptable.
Those of us who support the amendment are not looking for a much greater number. As I said at Second Reading a week ago, we do not know how many more; it might be 75,000 or 100,000. Who can tell? It might even be as few as 50,000, plus everybody who is equal on points to the end of the 50,000, whatever that may turn out to be. We are suggesting that the number is too low to create confidence at the middle level of management among those with professional expertise upon whom we depend, as much as do the residents of Hong Kong.
I should like to appeal to the noble Lord, Lord Mishcon, on the Front Bench. During the Committee stage, when opposing a somewhat similar amendment to this one but without the parliamentary element in it, he said that the Opposition disliked the points system because it was unfair and that he could not support that amendment. That was a reasonable position to take. However, it is yet another example of the desire to achieve the best system, driving out the system which is merely good and which might be attainable. I should like to ask the noble Lord, Lord Mishcon, to think again in that respect. I certainly ask him to think again very carefully about the comment he made last week when he said:
"We could not support an amendment which meant that additional people from Hong Kong were selected under the points scheme".—[Official Report, 1 6/7/90; col. 718.]
While I thought that his first comment was reasonable I do not think that that one is. There can be no reason why he can accept, or not oppose, the number of 50,000 and yet refuse to accept, and oppose, a slightly higher number. I appeal to my noble friend Lord Mishcon to think again and to support this important amendment. It is marginal in terms of the number but, as the noble Lord, Lord Shepherd, pointed out, it is
1212
important in terms of parliamentary procedure. It gives the Government the capability and flexibility to change their mind rapidly and immediately.
For those reasons, and because I believe that this amendment would increase confidence among a key group of residents of Hong Kong, I support it and commend it to the House.
Lord Thurlow: My Lords, at the Second Reading I indicated my support for the Bill. I still support it and express the hope that your Lordships will not support the amendment.
I should like to make a point in relation to the drafting of the amendment. It says:
"if the Governor recommends that it is necessary to do so in order to maintain the stability of Hong Kong or the safety of its residents".
I have been responsible for internal security in a small dependency. I should not have liked legislation in this Parliament to include a provision of this kind, which amounts to an invitation to mischievous forces to stir up disorder and artificially to create instability. On those grounds alone I feel that the amendment should be rejected.
Lord Boyd-Carpenter: My Lords, there is a risk of some misundertanding. The noble Lord, Lord Howie, said that the amendment would be marginal in effect. In fact there is nothing to secure that it is marginal. It can be "a higher figure", whatever higher figure may be decided upon.
Lord Howie of Troon: My Lords, if I may interrupt the noble Lord, I accept the point he is making, but what I said earlier on was that no one in this House was thinking of a substantially higher figure.
Lord Boyd-Carpenter: My Lords, that may be, but whatever anybody in this House is thinking about, we are being asked to legislate in a way which would cover a substantially higher figure. Indeed, in moving the amendment some time ago the noble Lord, Lord Bonham-Carter, said that it would give a small degree of flexibility. Again, it would do a great deal more than that. If it were to give a small degree of flexibility only, there would obviously be much stronger argument for it, but it does not. It would provide complete freedom to the Secretary of State at a future date to fix whatever figure he liked provided he could get the approval of both Houses of Parliament.
Lord Bonham-Carter: My Lords, is that not a very important reservation: provided that he could get the approval of both Houses of Parliament? Both Houses of Parliament are not simply subject to the diktat of the Secretary of State. We are capable of making up our minds as to whether the number which he suggests is appropriate or inappropriate.
Lord Boyd-Carpenter: My Lords, that is quite true, but it does not enable the noble Lord to escape from the fact that he said it would give a small degree of flexibility. Does he attempt to justify that? Of course he does not. He is well aware that that is the point I was making. Therefore it is a highly damaging amendment to the whole concept of the Bill. We talk

1213
about 50,000, but in human terms it is 225,000 to 250,000 human beings, which is a very substantial figure.
It amounts to a measure of compromise between two conflicting points of view. There is the point of view of those who wish to maintain morale in Hong Kong and if necessary give refuge to a certain number of its people, and there is the point of view of a great many in this country—and I think a good many in this House—who are already disturbed at the level of immigration and regard the arrival of a quarter of a million more people as full of dangers: dangers of rousing ill feeling, dangers of rousing anti-foreigner feeling and stirring up the ethnic problem. Therefore, I think that the Government have been wise in trying to select a figure—admittedly an arbitrary one—which takes account of those two conflicting considerations.
If your Lordships were to adopt the amendment it would throw the whole matter open. Indeed, as the noble Lord has just said, it could stir up feeling in Hong Kong, with people agitating to have the figure increased. It could certainly produce a reaction in this country from people who have controlled the alarm they would otherwise feel at this possible substantial increase in immigration, and it would alter the whole atmosphere in which the Bill has been brought forward.
The Government are to be congratulated on bringing forward the Bill, despite the conflicting views of the country, with a very high degree of support. They have managed to get that support because they have produced something in the nature of a compromise. To accept the amendment would be to wreck the compromise and at this stage of the Session maybe wreck the Bill.
Earl Ferrers: My Lords, the noble Lord, Lord Howie, said that no one was trying to get many more people into this country under the amendment.
Lord Mishcon: My Lords, if the noble Earl closes the debate except for the mover of the amendment I shall be deprived of saying a few words. I did try to rise, but obviously I did not do so quickly enough.
Earl Ferrers: My Lords, I apologise. I obviously had my head in my lap. The last thing that I wish to do is to deprive the noble Lord, Lord Mishcon, of the opportunity of giving his views and noble Lords of the opportunity of listening to them.
4.30 p.m.
Lord Mishcon: My Lords, I shall give my views briefly in answer to my noble friend Lord Howie and in any event because I believe that the House is entitled to know the view of the official Opposition on the amendment.
I remember that, on the last occasion when we were in Committee, the noble Lord, Lord Marsh, said, and I noted that his comment was not challenged, that this Bill is not meant to be a fair or just Bill; it is a Bill that has its origin in expediency. That was a frank comment and I reiterate that no one denied that that was the situation. That is one of the reasons why the Opposition have opposed the Bill. We wanted an
1214
admixture of justice, fairness and expediency. We believe that the points system is not a system that enables us to achieve that.
Opinions on the matter on the other side of the House obviously differ and I respect that situation. For us to support the amendment would therefore mean that we supported the points system. I made the position clear in Committee. If you increase the figure appointed under that system, you are in effect saying that you approve of it. In those circumstances—as I said, I thought that the House was entitled to an explanation—I shall advise my noble friends to abstain if there is a Division on the amendment.
Lord Harris of Greenwich: My Lords, I propose to speak extremely briefly, but I thought that it would be right to comment on the speeches made by the noble Lords, Lord Harmar-Nicholls and Lord Boyd-Carpenter. They raised the issue of public attitudes towards immigration. That has been a sensitive issue in British politics for well over a quarter of a century. The noble Lord is right to look at the issue in terms of the speech made by the noble Lord, Lord Marsh, on the last occasion. He has been quoted on a number of occasions, but I agreed with him profoundly in that part of his last speech when he said that the whole approach will have been proved a failure if we experience the arrival of 50,000 heads of household and their dependants.
If things go well and the Chinese Government behave in the way that we hope they will, there is no question of 50,000 heads of households and their dependants coming to this country. As the noble Lord, Lord Wyatt, said, few of them would necessarily choose to come here. In most cases, to come here would lead to a substantial reduction in their standard of living. We all recognise that. That is the first part of the argument.
Let us look then at the situation if things go badly. I particularly relate these remarks to what the two noble Lords said a few moments ago. In winding up the debate on Second Reading, I drew the attention of the House to what Sir Geoffrey Howe had said to the Foreign Affairs Committee of the House of Commons; namely, that, if a grave situation arose in Hong Kong at about the time the Chinese Government were to take over responsibility for the colony's affairs, we might possibly be faced with a situation in which tens of thousands of people would want to leave Hong Kong. Sir Geoffrey Howe pointed out to the Foreign Affairs Committee that, given our responsibility for Hong Kong, we would then have to take substantial responsibility for that situation. If we did not, there would be little prospect of our colleagues in the European Community, the United States, Australia and so on agreeing to take large numbers of people from the colony.
That is the situation. All I would say to the two noble Lords and to the House generally is that there is no question of the Secretary of State simply being able to fix a totally unreasonable higher figure. First, he could act only if he wanted to act and, secondly, he would have to secure the approval of both Houses of

1215
Parliament. That is the answer to the two noble Lords opposite and it entirely justifies the amendment moved by my noble friend Lord Bonham-Carter.
Earl Ferrers: My Lords, to have denied your Lordships the benefit of the advice of the noble Lord, Lord Mishcon, would have been a deprivation that I would never have orchestrated, but to have denied the House the benefit of both the noble Lords, Lord Mishcon and Lord Harris of Greenwich, would have been a double disaster. I can only apologise for having been too precipitate. I can assure noble Lords that it was not eagerness to get on my feet that was the cause of it.
The noble Lord, Lord Howie of Troon, said that no one is trying to get many more people into the country as a result of the Bill, but that he did not like the inflexibility of having only one figure in the Bill. That sounded fairly persuasive. I listened carefully to the arguments of the noble Lords, Lord Bonham-Carter and Lord Shepherd.
With his usual ability to put his finger on the nail, my noble friend Lord Boyd-Carpenter said that the amendment would not just allow a few extra people in, but that the number might be very large. It was not just a question of small numbers. They might be large numbers, provided that the Secretary of State had the approval of your Lordships' House. My noble friend said that acceptance of the amendment would throw the whole matter open. He was right.
We discussed the matter at some length in Committee. Behind it all is the inference that, if the Government were confident regarding the efficacy of the assurances and of persuading recipients to stay in Hong Kong, they should not have too many worries about granting more of them the ability to come. That is an attraction, but it does not stand up to scrutiny.
All the discussion has been about numbers, but the Government have never offered a guarantee that the beneficiaries would not come here. There could be no such guarantees. It follows that it would be wrong to offer more assurances than the country could honour if, contrary to our expectations, most of the recipients came and settled here.
In order to meet a point made by my noble friend Lord Brabazon last week, the noble Lord, Lord Bonham-Carter, has ingeniously inserted the affirmative resolution procedure into his amendment as a safeguard in order, understandably, to try to persuade us of the reasonableness of his intentions. However, that does not meet the Government's main concern.
We have decided on 50,000 places because we believe that that figure will have a real impact on confidence in Hong Kong. However, the built-in ceiling on numbers has been and remains essential to public acceptance in this country of our proposals. The removal of that precise figure from the Bill would give cause for widespread concern. Attitudes towards the Bill and its aims would be likely to deteriorate both here and in Hong Kong and become speculative. That would not be helpful to the effectiveness of the Bill and the confidence that it seeks to create. As noble Lords
1216
know, the anxieties in this country about immigration are very real. That is a factor that the noble Lord, Lord Bonham-Carter, seemed conveniently to disregard.
The noble Lord, Lord Shepherd, said that it would be easy for another place to take this amendment tomorrow. Perhaps another place could take the amendment, but perhaps it would not do so. The noble Lord has wide experience of what happens to controversial Bills at the end of Sessions and knows that they may become a hazard to the parliamentary system.
In addition, as my noble friend Lord Geddes said, the amendment would inevitably arouse expectations in Hong Kong that simply could not be realised. He said that it would raise a question mark and false horizons. He is right. If the amendment were passed, there would be a continuing campaign for more places. I believe that no other noble Lord has pointed out that enormous pressure would be applied to the Governor to say to my right honourable friend, "Look, 50,000 places are simply not enough. We must have more". That would in turn resurrect all the anxieties which were initially expressed about the Bill in another place.
My noble friend Lord Harmar-Nicholls said that this figure has been negotiated. I agree with him; it is a negotiated figure. It was negotiated with a number of different parties representing a wide variety of interests. If you move away from the negotiated figure you risk a reaction from those various sections.
Lord Wyatt of Weeford: My Lords, I trust the noble Earl will forgive my intervention, but can he tell the House just who the figure was negotiated with? It was not negotiated with the people of Hong Kong.
Earl Ferrers: My Lords, it was negotiated. It was discussed in great detail, both in Hong Kong and back in the United Kingdom, as being a figure which would have a reasonable chance of meeting the needs of Hong Kong and, at the same time, a reasonable chance of being acceptable to the UK Parliament. If we change the figure of 50,000, it could well give rise to feelings of resentment and dissatisfaction on all sides. Such feelings would work against the Bill. They would undermine the improvement in morale and the confidence which constitute the very purpose of the Bill.
The noble Lord, Lord Bonham-Carter, is very ingenious. He takes little quotations and puts them into a different context. He said that what Hong Kong needs is flexibility and that that is what I had said. Of course, that is true; however, I was referring to the scheme and not to the numbers involved.
Lord Bonham-Carter: My Lords, we must clarify this point. I said that the noble Earl was referring to the scheme. There was nothing ingenious about what I said. I made the point quite clear.
Earl Ferrers: My Lords, that is fine. We obviously agree about that point. I agreed that there should be flexibility in the scheme; but I was not saying there should be flexibility as regards the numbers. Perhaps the noble Lord, Lord Bonham-Carter, will be careful

1217
when quoting me in future not to imply, or perhaps suggest to others who were perhaps not paying quite the attention they should have been to the discussion, that I was in some way agreeing with him that flexibility over numbers would not be a bad thing.
We must now make a judgment about the commitment. It can never be a scientific calculation. The noble Lord, Lord Shepherd, said that he wondered whether it was the right figure. There is no right or wrong figure; it is a figure which we, and the people of Hong Kong, believe to be reasonable and acceptable. We think that 50,000 assurances plus family followers is a substantial figure. It represents over half of the number of key personnel who could be expected to leave Hong Kong by 1997, if the current rate of emigration continues. If the figure of 50,000 should become greater, I believe that it would give rise to anxieties at home. However, if it were to become less, it would knock the stuffing out of the confidence of those in Hong Kong.
Both the Governor and the Government believe that the issue of 50,000 assurances to the core of Hong Kong's key personnel will have a substantial impact on curbing emigration and promoting stability. I hope that the noble Lord, Lord Bonham-Carter, will realise that this is the best figure. It is one which is likely to have the greatest success from the point of view of securing confidence in Hong Kong. Accordingly, I hope that he will not press his amendment to a Division.
4.45 p.m.
Lord Bonham-Carter: My Lords, I have listened with great care to what the noble Earl, Lord Ferrers, said. I feel that I must first read to him the exact quotation which I used about which he made some qualified objection. On Second Reading he said:
"It would not have been sensible to write details of the scheme into the Bill. They have to be kept flexible so that Parliament can, if necessary, be asked to approve changes later on in response to changing circumstances in Hong Kong". [Official Report, 29/6/90; col. 1824.]
I took that quotation from his speech only because the argument that lay behind my speech was that there may be changes in the circumstances in Hong Kong between the years 1990 to 1997 which we cannot altogether foresee. I felt that a prudent Government, just as they felt it necessary to keep flexibility in the administration of the scheme, should keep flexibility in the administration of the numbers which fall within the scheme. I honestly do not think that the use of that quotation was in any sense ingenious; it was highly relevant to the argument that I was putting forward.
Secondly, we must be clear about what lies behind the Bill. In my view, this was misunderstood on Second Reading by the noble Lord, Lord Renton, and again today by the noble Lord, Lord Harmar-Nicholls. Moreover, this was used in a kind of oblique way by the noble Earl, Lord Ferrers. The whole point of the Bill is that it is based on the premise that if you give people the assurance of a passport, to use the noble Earl's phrase, they will not in fact use it.
1218
Therefore, the threat of 50,000 heads of families or 250,000 invading this country is one which denies the whole purpose of the Bill.
If the noble Lords, Lord Harmar-Nicholls and Lord Renton, disagreed with the premise of the Bill, they and all those who agree with them should have voted against it on Second Reading. The whole premise of the Bill is that that invasion will not happen, despite the fact that the evidence regarding the 55,000 people a year who are leaving Hong Kong shows that they are not coming to this country. Indeed, they are going to Canada, Australia and America. Therefore, there is no threat.
I slightly resent the idea that I am totally ignorant of attitudes towards immigration in this country. It so happens that I spent 11 years of my life tackling some of the responses to immigration in this country. I am extremely aware that this is a sensitive and important matter. However, I do not think that that particular red flag should be waved in front of my nose.
I do not want to extend this debate, which has now gone on for 59 minutes. However, I should like to thank all those who have taken part. This is an extremely important issue. I believe that the response of the Government, which has been totally rigid, is inadequate. I am afraid that I cannot accept the position taken up by the noble Lord, Lord Mishcon, who objects to the selection scheme. His objection is perfectly reasonable; but it seems to me to be an extreme case when someone thinks that half a loaf is not worth having if you cannot have the whole loaf. and when people say that the best is the enemy of the good. As I said, this is an important issue and I think that the opinion of the House must be tested upon it.
4.47 p.m.
On Question, Whether the said amendment (No. 2) shall be agreed to?
Their Lordships divided: Contents, 27; Not-Contents, 138.

Division No. 1

CONTENTS

Addington, L.

McNair, L.

Bonham-Carter, L.

Mais, L.

Bottomley, L.

Mayhew, L.

Davies of Penrhys, L.

Ogmore, L.

Falkland, V.

Reilly, L.

Glenamara, L.

Rochester, L.

Grey, E.

Sainsbury, L.

Hampton, L.

Shepherd, L.

Harris of Greenwich, L.

Stedman, B.

Howie of Troon, L.

Tordoff, L. [Teller.]

Hunt, L.

Walston, L.

Jenkins of Hillhead, L.

Wigoder, L.

Kilmarnock, L.

Wyatt of Weeford, L. [Teller.]

Lloyd of Kilgerran, L.

NOT-CONTENTS

Allerton, L.

Birdwood, L.

Ampthill, L.

Blatch, B.

Arran, E.

Blyth, L.

Atholl, D.

Boardman, L.

Auckland, L.

Borthwick, L.

Balfour, E.

Boyd-Carpenter, L.

Belhaven and Stenton, L.

Brabazon of Tara, L.

Beloff, L.

Brigstocke, B.

Belstead, L.

Brightman, L.

Bessborough, E.

Brougham and Vaux, L.

1219

Buckinghamshire, E.

Mackay of Clashfern, L.

Butterworth, L.

MacLehose of Beoch, L.

Caithness, E.

Macleod of Borve, B.

Caldecote, V.

Mancroft, L.

Campbell of Alloway, L.

Manton, L.

Campbell of Croy, L.

Margadale, L.

Carnegy of Lour, B.

Marshall of Leeds, L.

Carnock, L.

Merrivale, L.

Cavendish of Furness, L.

Mersey, V.

Clanwilliam, E.

Monson, L.

Cottesloe, L.

Monteagle of Brandon, L.

Cox, B.

Mowbray and Stourton, L.

Craigavon, V.

Munster, E.

Crook, L.

Murton of Lindisfarne, L.

Cullen of Ashbourne, L.

Nelson, E.

Davidson, V. [Teller.]

Norfolk, D.

De L'Isle, V.

Nugent of Guildford, L.

Denham, L. [Teller.]

Orr-Ewing, L.

Derwent, L.

Oxfuird, V.

Eccles of Moulton, B.

Pearson of Rannoch, L.

Ellenborough, L.

Pender, L.

Elles, B.

Peyton of Yeovil, L.

Elliot of Harwood, B.

Plummer of St. Marylebone, L.

Elton, L.

Porritt, L.

Erroll of Hale, L.

Pym, L.

Faithfull, B.

Reay, L.

Ferrers, E.

Renton, L.

Flather, B.

Renwick, L.

Fraser of Kilmorack, L.

Rodney, L.

Geddes, L.

Romney, E.

Glenarthur, L.

St. Davids, V.

Gray of Contin, L.

Sanderson of Bowden, L.

Greenhill of Harrow, L.

Seebohm, L.

Greenway, L.

Selkirk, E.

Gridley, L.

Sharpies, B.

Harmar-Nicholls, L.

Shaughnessy, L.

Havers, L.

Sherfield, L.

Hayter, L.

Skelmersdale, L.

Henley, L.

Slim, V.

Hesketh, L.

Stodart of Leaston, L.

Hives, L.

Strange, B.

Hooper, B.

Strathcarron, L.

Howe, E.

Strathclyde, L.

Hylton-Foster, B.

Strathmore and Kinghorne, E.

Ilchester, E.

Strathspey, L.

Jenkin of Roding, L.

Swinton, E.

Johnston of Rockport, L.

Thomas of Gwydir, L.

Joseph, L.

Thorneycroft, L.

Kadoorie, L.

Thurlow, L.

Kimball, L.

Trumpington, B.

Kinloss, Ly.

Tryon, L.

Kinnaird, L.

Ullswater, V.

Kitchener, E.

Vaux of Harrowden, L.

Lauderdale, E.

Wade of Chorlton, L.

Layton, L.

Wedgwood, L.

Long, V.

Westbury, L.

Lothian, M.

Willoughby de Broke, L.

Lyell, L.

Wynford, L.

McColl of Dulwich, L.

Young, B.

Resolved in the negative, and amendment disagreed to accordingly.
4.56 p.m.
Earl Ferrers: My Lords, I beg to move, That the Bill do now pass. No one who has listened to the Bill's passage could be in any doubt that Hong Kong needs the Bill. Reactions in Hong Kong make it perfectly clear that that view is widely held within the territory itself, where the outcome of these proceedings is keenly awaited.
I am especially grateful to those who, notwithstanding their disagreement with the principle of the Bill, have nevertheless helped us to examine the proposals in a most constructive spirit. I recognise that some compelling arguments were advanced last week, and today, in favour of some of the
1220
amendments which we discussed. I am grateful to those of your Lordships who have contributed to the Bill's passage.
The Bill is, of course, an exceptional measure and a departure from normal nationality principles. We have, therefore, been concerned that it should be tightly drawn. The arrangements will lapse in 1997. That is a built-in deadline. The Bill will apply only to the 50,000 people and their immediate families. That has been a central feature of the Bill, and it is especially important. It means that, for those who are not covered by the Bill, the acquisition of British citizenship will continue to be governed by the normal operation of the British Nationality Act 1981. It is for that reason that the Government were unable to accept proposals to make provision in the Bill for spouses of existing British citizens in the territory.
We recognise, however, that in the special circumstances of Hong Kong it is natural for British citizens to be anxious about the position of their spouses. My right honourable friend the Home Secretary has given further thought to that matter in the light of the representations which he has received.
As I indicated last week, in responding to an amendment moved by the noble Baroness, Lady Ewart-Biggs, my right honourable friend has extended the assurance which he gave in April that widowed spouses of British citizens, who had died while resident in Hong Kong, would be allowed to settle here on the same terms as if the British partner were still alive. That assurance now applies whether or not the widowed spouse has citizenship of a third country, provided that he or she is still resident in Hong Kong and has not remarried.
Perhaps I could take this opportunity to bring to your Lordships' attention another step which my right honourable friend intends to take to assist British citizens in Hong Kong and their spouses. He understands the expatriates' concern that their spouses should be able to obtain some evidence of their status, and should be able to obtain an assurance that, if they decide to come to the United Kingdom, their entry clearance applications will be processed quickly.
I can now tell your Lordships that we are setting up an arrangement whereby the spouse of a British citizen can provide the Hong Kong immigration department with details of his or her marriage. The details will be entered in a register and the spouse will be given a letter, which will be issued on the Home Secretary's behalf, explaining that he or she is eligible to settle in the United Kingdom provided that the immigration rules requirements are met. The letter will also include an assurance that any future entry clearance application will be given priority.
Those new arrangements, together with the assurance on widows, will, I hope, remove any fears which the expatriate community may have had about whether their spouses or widows would be allowed to settle in the United Kingdom at any time in the future, without unnecessary delay, should they wish to do so.

1221
We made it clear at the outset that both we and the Governor of Hong Kong would listen to views on the selection scheme. Your Lordships have provided some very helpful advice. The structure of the scheme remains unchanged. We envisage that some 36,200 of the 50,000 places will be issued under the general allocation section on the basis of a points system, places being divided between different groups of people based on their occupations and according to a formula which will reflect the rates of emigration of those groups. Another 7,000 places will be allocated to the disciplined services, again on points. Smaller allocations will be available for the sensitive services and for key entrepreneurs.
If, as I hope, the Bill is granted Royal Assent, both we and the Hong Kong Government will want to think carefully about the various comments and suggestions which have been made before coming forward with our proposals in their final shape. However, I think it only fair to say that we have heard little to date to make us doubt that the scheme is along the right lines in its essentials. To benefit Hong Kong it must select applicants on the basis of their value to Hong Kong's economy and stability. Our proposals provide a means of achieving this with maximum fairness and objectivity and minimum scope for bias.
The scheme is not designed just to cater for a wealthy and influential elite. It will provide places for people from all kinds of different walks of life and levels of income. The occupations and services which are covered will range from nurses and teachers to businessmen and administrators. We all recognise that, in the long run, the future of Hong Kong will depend upon China. The Government believe that the Joint Declaration and the unusual but imaginative Chinese concept of two systems within one country provide the framework for Hong Kong's continued stability and prosperity.
However, our concern today is not so much with the distant future but with the transitional period which lies ahead—and in particular with the urgent need to stem the drift or outflow of skills and talents from the territory. That is the issue which this Bill seeks to address. Providing encouragement for key people to stay will, I hope, benefit not just them, but all the people of the territory. I am grateful to noble Lords for the kind and courteous way in which they have considered in detail all the matters regarding the Bill. I commend it to your Lordships. I beg to move.
Moved, That the Bill do now pass. - (Earl Ferrers.)
5.5 p.m.
Baroness Ewart-Biggs: My Lords, it has been a great privilege to take part in the debate which has included contributions from those who have played a vital role in the life of Hong Kong. This includes in particular the noble Lords, Lord Kadoorie and Lord MacLehose. What they have said during the passage of the Bill has been of great help to those of us who, in all honesty, have found it difficult to put forward firm and unequivocal views. The reason for that was given by the Minister: the question marks which hang
1222
over the future of Hong Kong about who China's leaders will be in 1997, as well as what they will do in the interim.
We are grateful for the clear presentation of the Bill right from the start by the noble Earl, Lord Ferrers, and for the way in which he has responded to the amendments put forward in good faith by all sides of the House. He gave the reasons he wanted the Bill and explained that he wished the Bill to take its place on the statute book with the minimum of delay. We from these Benches have accepted both the expediency factor that the Minister put forward as well as the urgency.
However, it must be said that although we have accepted the Bill, we have not accepted—indeed we have opposed—the points system. We feel that it includes neither justice nor fairness. It is not a system that we could ever applaud. That is why we have not opposed the Bill but have tried to put forward ideas which would create a better structure for the scheme and have removed certain anxieties and injustices. I am grateful to the Minister for confirming today his response to the points that we put about the widowed spouses of British citizens as well as the future of spouses of British citizens who will he registered in Hong Kong. This will make them eligible to settle in the United Kingdom.
We accept the urgency of the Bill. We said during its passage that it was a pity that the Government did not put forward a Bill much earlier. However, we understand that there were certain divisions within the Conservative Party as to the kind of Bill it should be. We can only regret that the Bill came so late and therefore had to be hurried through at great speed.
We hope that the Bill will fulfil the Government's aim of providing stability and confidence in the colony. By a strange and remarkable coincidence, in the newspaper the Guardian this morning there was a report on Hong Kong. I do not know whether the Minister saw it. The report threw a much more positive light on the future than the usual view. For instance, it made the point that last year—the year of the massacre of the pro democracy protesters in Tiananmen Square—deposits grew by 19 per cent. in Hong Kong. That can only mean that there is still confidence there. The report gave specific figures for those who were leaving, and also for those returning. It showed that one-fifth of emigrants have already returned but, on the other hand, those who were leaving were the people that Hong Kong needed. For that reason, the Minister has convinced us that some insurance policy is necessary to try to persuade those people to stay in Hong Kong. We see the Bill in that way, but not as a fair way of introducing a points system.
However, we sincerely wish the Hong Kong people the best future. Those of us who have visited Hong Kong will remember the great hospitality and courage of the people who live and work there. We would hate to think that their future was in any way overshadowed.
Lord Bonham-Carter: My Lords, I wish to add one or two words to the obsequies on the Bill, or whatever they are. I am convinced that there is a future for Hong Kong. I hope that the Bill will have made a contribution to reinforcing that future by providing an element of confidence. That is what is most required and on it, we, the noble Earl and the Government are at one.
It is sad that the Labour Party felt unable to contribute to reinforcing that confidence. That was because they found unacceptable the way in which it was being done. Sometimes we have to find ways round and means to achieve ends on which we are agreed. Unless we can stem the emigration from Hong Kong and preserve its prosperity, the bargaining position of people in Hong Kong and this country vis-à-vis China will be weak. Therefore it is in the interests of all of us that everything should be done to stem the flow and increase confidence as well as to provide a real basis for that confidence. I hope that the Bill will do exactly that.
Earl Ferrers: My Lords, I am grateful to both the noble Lord, Lord Bonham-Carter, and the noble Baroness, Lady Ewart-Biggs, for what they have said. The Bill was calculated to be a practical response to the problem of Hong Kong. I believe that it will send a signal of Britain's continuing commitment to the wellbeing of Hong Kong.
I am particularly grateful to those who have taken part in the proceedings. If I dare to single out one or two noble Lords especially, the noble Lord, Lord MacLehose, was a most distinguished Governor of Hong Kong. The enormous knowledge of the area of the noble Lord, Lord Kadoorie, has been a great help. I must mention also the noble Lord, Lord Sharp, my noble friend Lord Derwent and the noble Lord, Lord Geddes, who have a singular interest in and knowledge of the territory. I hope that this Bill will be a success for Hong Kong. As the noble Lord, Lord Bonham-Carter, said, we all wish Hong Kong well and we hope that the confidence which it requires will be added to by the Bill.
On Question, Bill passed.

Employment Bill
5.10 p.m.
Report received.
Baroness Turner Baroness Turner moved Amendment No. 1:
After Clause 1, insert the following new clause: ("Access to individual records
.—Where a person or an organisation provides information to an employer which relates to the activities or the past or prospective activities, of another person on behalf of an independent trade union within the meaning of section 23 of the Employment Protection (Consolidation) Act 1978 (in this section known as a "blacklist") that person or organisation must provide access to the individual records of such activities (whether manual or computerised) held on that person.
Should access be denied, the individual may make application to the Industrial Tribunal for an order enforcing the right of access.").
The noble Baroness said: My Lords, in Committee
1224
I moved an amendment which unfortunately did not commend itself to the Chamber. I sought to render illegal activities involved in preparing secret blacklists from which information is supplied to employers. Often the result is that people are debarred from employment for which they would otherwise be qualified, on the basis of secret information to which they have had no access. I now return with another and more modest amendment.
In Committee I referred to the activities of the Economic League which I described as a sinister organisation. I still hold to that view. We know the league keeps records of individuals. It admitted as much through its representatives when they met the Employment Select Committee in another place. In Committee I referred at col. 163 of Hansard of 10th July to the exchange which then took place. The records in question are manual and are therefore not covered by the Data Protection Act. Furthermore, it is clear from the information contained in the "World in Action" programme on the league that much of the information is inaccurate. Some of it comes from the tabloid press and some probably from informers.
The league has a network of informers. According to research into the league which was undertaken by the producers of the "World in Action" programme, such an informer existed for a number of years in my own union, ASTMS. He apparently told a number of organisations that he was a full-time official of my union. However, he was nothing of the kind, but he was elected as minute secretary to a divisional council—that is a lay office—and in that position he was able to make a record of all who attended meetings and what they had to say. He also had access to all correspondence read at the meetings. One wonders what kind of information he fed to the league.
The league has never denied that it infiltrates unions in this way, and indeed other organisations such as the anti-apartheid movement, as apparently hostility to apartheid constitutes enough of a reason to be included on the league's files. A former director of the league has said that the registers and lists are unreliable and inaccurate. According to that former director, a league list which was in use in the North-West contained over 6,000 names and entries that went back more than 40 years. It would appear that some people get listed simply for writing to a local newspaper. One personnel director who was interviewed and who had had dealings with the league said:
"The trouble is that individuals never know whether they are on a blacklist or not … once a person is on one of their lists it may be very difficult for him to get another job. My complaint is that they're often inefficient and inaccurate".
The league has of course argued that individuals can take appropriate action if it is felt that the information on them is inaccurate. However, the individual may not know that he is on such a record. Even if he does, the only remedy, if the information is libellous and inaccurate, is in the courts. That is an expensive remedy, and one which is beyond the reach of most working people.
I still believe that the activities of bodies such as the league should be rendered illegal. It is surely immoral

1225
to debar people from earning a living through the use of secret information which may well be inaccurate and malicious. It is commendable that a number of leading companies and organisations have decided that they want nothing further to do with the league. The league would appear to be losing support. The publi ity to which it has recently been exposed may well have had the effect of reducing the number of contributors. I sincerely hope that that is the case. However, there are still numbers of firms that are using the league and it is unlikely that they employ people who are regarded by the league as subversive, however inaccurate that opinion may be. If they took no notice of the information supplied, there would be little point in subscribing to the league.
As I said in Committee, neither the CBI nor the Institute of Personnel Management favour the league. It should however at least be possible for people who believe they are on the league's records to have access to that information. After all, we are becoming a much more open society. The Access to Health Records Bill has just appeared before the House where it won support from all sides. It might be possible to achieve what I propose by amending the Data Protection Act so that it included manual records. I believe, however, that what is proposed in this amendment is really the better way, as we are not concerned with manual records in general but simply with those that are kept on individuals for the purpose of supplying information to employers in job appointment situations. If there is access, individuals will have some means of putting things right. There has to be a means of enforcing access if it is denied. Hence the reference in the amendment to an industrial tribunal should enforcement become necessary. Finally, this matter has nothing to do with ordinary job references. That is not what we are concerned with here. I hope the wording of the amendment makes that absolutely clear. I beg to move.
5.15 p.m.
Lord Campbell of Alloway: My Lords, as the noble Baroness has said, the problem of blacklisting arose in Committee. I sought then to point out that a piecemeal approach in this Bill would hardly be appropriate. As the noble Baroness said, we may have to amend the Data Protection Act. I accept that we may well have to amend that Act. However, I respectfully suggest that we should not amend it by a piecemeal approach in this Bill.
There are also specific objections to the amendment. First, the proposed new clause would extend the Data Protection Act beyond computerised data, to indude manual data without any provision for the statutory regulatory structure which would be requited, and which would not be the same as the kind of structure which is required for computerised records.
Secondly, as the noble Baroness has said, access has been extended to manual records in certain types of case, such as medical records, school records and local authority housing records. However, those matters are not analogous. They are not concerned with blacklisting of the type with which this amendment
1226
purports to deal. This amendment purports to deal with records held by employers on their past, present, and as I understand it, prospective employees.
It is understood that the activities of the Economic League are under serious investigation at this moment by a House of Commons Select Committee. If that is correct, I suggest with respect that it would be premature to seek to deal with this matter in this Bill today for those reasons.
Lord Renton: My Lords, I must apologise to the noble Baroness as I missed her speech. However, I have a query on the way in which this amendment is drafted. It states in the penultimate line of its first paragraph:
"that person or organisation must provide access to the individual records of such activities".
It does not state that access must be provided to an individual. The question arises: to whom must access be provided? As the amendment reads at the moment, it could mean that access to individual records must be provided to anyone. I am sure that that is not the intention of the noble Baroness. I should have thought that the application of this amendment would in any event have to be restricted by writing something into it to show exactly to whom access was to be provided.
Lord Rochester: My Lords, as the noble Baroness said, the amendment aims to bring into the open the covert activities of the Economic League, an organisation for which, from earlier experience, I have precious little respect. Particularly suspect is the way in which the records of the organisation are compiled manually and thus escape the scrutiny to which, if they were computerised, they would be subject under the Data Protection Act.
The amendment seeks to expose only those individual records which relate to union activities and thus come within the scope of the Bill. It is clearly designed also to leave untouched confidential references which a prospective employer may receive from a past employer giving factual information of a more general kind about a potential recruit. In that respect it meets the criticism which the noble Lord, Lord Strathclyde, understandably directed at an earlier amendment on the same subject in Committee.
Independent researchers and former members of the staff of the Economic League alike have found its records of people categorised as political activists to be chaotic and inaccurate. The Employment Committee of another place considered that legislation might be needed to deal with the matter. The amendment provides a means of doing just that.
Perhaps there is room for improvement in the drafting of the amendment. It must be acknowledged, as the noble Lord, Lord Campbell of Alloway, pointed out, that it lacks a statutory regulatory structure. The noble Lord, Lord Renton, made a somewhat similar criticism. If those were the only defects I am sure that they are matters that could easily be put right at Third Reading of the Bill later this week. The underlying principle is clear enough and I support it.
Lord Strathclyde: My Lords, it is clear from the debate that this new clause represents another attempt by the Opposition to deal with what they refer to as the abuses of Economic League blacklists. I make no apology for repeating what I said in Committee. The Government believe that an employer should be free, if he chooses to do so, to use the services of organisations which compile information that may be helpful to him in selecting suitable persons for employment. I take no view either way on the Economic League when I say that. It is a simple, basic principle.
However, when such information is put to use, Clauses 1 to 3 of the present Bill ensure that an employer will in future be acting unlawfully if he refuses any person employment for reasons of union membership or non-membership. However, I must also repeat that, subject to those provisions, we believe that an employer should be entirely free to refuse to take on a job applicant whose previous activities, whether or not in a trade union context, he considers unacceptable.
I accept that the new clause is concerned with access to records and would not prevent an employer from obtaining information about a job applicant's activities. Nor would it prevent him from refusing to employ an individual who had undertaken activities of which he disapproved.
I do not wish to make too much of the drafting of the new clause, but I hope that the noble Baroness will accept that I had some difficulty deciding before this debate exactly what she intended. For example, as my noble friend Lord Renton pointed out it is not made clear what is meant by "access", and whether or not it is necessary that there should be a request for such access. Nor is it clear whether access to the individual records is to be provided to the employer, to the job applicant or to the public at large. Indeed, there is no suggestion that the new clause is concerned solely with job applicants.
Leaving aside any question of detailed wording, it is apparent that the noble Baroness is seeking to give individuals who have had information provided about their trade union activities by organisations such as the Economic League the right to see the records of such activities which those organisations hold on them. I am not here to defend the Economic League—indeed, at present I hold no view either way—but I understand that it has on numerous occasions stated that it is quite happy to provide individuals, on request, with copies of any information relating to their trade union membership or activities and to put right any inaccurate information which it may hold.
I am also aware of the concern shared by some on both sides of your Lordships' House, and in another place, about the secrecy of operation and the level of accuracy of information held and supplied by organisations such as the Economic League. Indeed, I am aware that, as my noble friend Lord Campbell of Alloway correctly pointed out, the Select Committee on Employment in another place is currently investigating and considering the activities of the Economic League. I can assure the noble Baroness
1228
that the Government will naturally look with interest at the committee's report in due course. However, I do not believe that a case has been made for the introduction of the wide-ranging right of access which the new clause contains.
As your Lordships will be aware, except for certain payroll and medical details, employers' records which are computerised are covered by the Data Protection Act 1984 in the same way as other computerised records. I am aware that some noble Lords believe that the Act should be generally extended to cover manual records, but that is not an issue which can arise on this Bill.
The debate today has once again indicated that the main concern of the Opposition is with the activities of the Economic League, but the new clause would have a far wider impact. It would apply to any person who provides information to an employer about an applicant's union activities. It would apply to any employer who gives a confidential reference to another employer which contains any factual statement about an act that may be a trade union activity covered by the clause. It would apply to individuals, businesses and organisations of any kind and would not be restricted to information which the employer had solicited. Nor must it have been given at any particular time, for example at or near the time of an interview.
In all those cases, whether or not the information provider knew—or even intended—that the employer should act on the information, the information provider is required to throw open all his records on the union activities of the individual concerned. The noble Baroness must know that the Government cannot possibly support such a proposal.
Baroness Turner of Camden: My Lords, I am a little disappointed but not surprised by the response from the Government. Much of it was not directed at the amendment but at different cases altogether. The amendment is concerned with a rather narrow point. It is not concerned with the activities of the Economic League which are currently under investigation in another place. The outcome of that, for all we know, may be legislative provisions far more sweeping than what the amendment suggests. All we propose in the amendment is that if secret records are kept on people those people should have access to them.
We are, as I said in moving the amendment, becoming a very much more open society. We have the Access to Health Records Bill. It is widely accepted now that there should be access to housing, and local government records and those covering a variety of spheres as a matter of civil liberty. There seems even more reason to have access to records when one's very livelihood can be at stake than to medical records, important though that is.
I do not accept that there is anything wrong with the proposal in principle. I believe that it is a highly commendable approach to say that people should have access to secret records that are kept on them. Records should cease to be secret in that sense: they should be accessible to the individual concerned.

1229
I note what the noble Lord, Lord Renton, had to say about the drafting of the amendment. I have tried to deal with that point by making clear that it is the individual who may make application to the industrial tribunal to enforce the right of access. Even if there are problems with the wording of the amendment—and I make no great claims for it—nevertheless I believe that the principle is of such importance that it ought to be considered and voted on by your Lordships' House. I therefore intend to ask your Lordships to do precisely that.
5.29 p.m.
On Question, Whether the said amendment (No. 1) shall be agreed to?
Their Lordships divided: Contents, 74; Not-Contents, 119.

Division No. 2

CONTENTS

Addington, L.

Kilbracken, L.

Birk, B

Leatherland, L.

Blackstone, B.

Listowel, E.

Bonha-Carter, L.

Llewelyn-Davies of Hastoe, B.

Boston of Faversham, L.

Lloyd of Kilgerran, L.

Bottomley, L.

Lockwood, B.

Bruce of Donington, L.

Longford, E.

Carmic ael of Kelvingrove, L.

Lovell-Davis, L.

Carter, L.

McCarthy, L.

Cledwyn of Penrhos, L.

McNair, L.

Cocks of Hartcliffe, L.

Mason of Barnsley, L.

David, B.

Milner of Leeds, L.

Davies of Penrhys, L.

Molloy, L.

Dean of Beswick, L.

Morris of Castle Morris, L.

Dormand of Easington, L.

Mulley, L.

Ennals, L.

Murray of Epping Forest, L.

Ewart-Biggs, B.

Nicol, B.

Falkland, V. [Teller.]

Ogmore, L.

Foot, L.

Oram, L.

Gallacher, L.

Peston, L.

Galpe, L.

Phillips, B.

Graham of Edmonton, L.

Pitt of Hampstead, L.

[Teller.]

Prys-Davies, L.

Grey, .

Rochester, L.

Grimond, L.

Serota, B.

Hampton, L.

Shackleton, L.

Harris of Greenwich, L.

Shepherd, L.

Hatch of Lusby, L.

Stedman, B.

Hirshfield, L.

Stoddart of Swindon, L.

Holliscf Heigham, B.

Strabolgi, L.

Houghton of Sowerby, L.

Taylor of Blackburn, L.

Howie of Troon, L.

Thomson of Monifieth, L.

Hughes L.

Tordoff, L.

Jay, L.

Turner of Camden, B.

Jeger, .

Underhill, L.

Jenkins of Hillhead, L.

Wedderburn of Charlton, L.

Jenkins of Putney, L.

Williams of Elvel, L.

John-Mackie, L.

NOT-CONTENTS

Allerton, L.

Brigstocke, B.

Ampthill, L.

Brougham and Vaux, L.

Arran, E.

Butterworth, L.

Atholl, D.

Caldecote, V.

Auckland, L.

Campbell of Alloway, L.

Balfour. E.

Campbell of Croy, L.

Belhaven and Stenton, L.

Carlisle of Bucklow, L.

Beloff, L..

Carnegy of Lour, B.

Belstead, L.

Carnock, L.

Bessborough, E.

Cavendish of Furness, L.

Blatch, B.

Clanwilliam, E.

Blyth, L.

Colwyn, L.

Boardman, L.

Cox, B.

Borthwick, L.

Cullen of Ashbourne, L.

Boyd-Carpenter, L.

Davidson, V. [Teller.]

Brabazon of Tara, L.

Denham, L. [Teller.]

1230

Derwent, L.

Napier and Ettrick, L.

Eccles of Moulton, B.

Nelson, E.

Elles, B.

Norfolk, D.

Elliot of Harwood, B.

Nugent of Guildford, L.

Faithfull, B.

O'Hagan, L.

Ferrers, E.

Onslow, E.

Flather, B.

Orkney, E.

Fraser of Kilmorack, L.

Orr-Ewing, L.

Geddes, L.

Oxfuird, V.

Glenarthur, L.

Pearson of Rannoch, L.

Granville of Eye, L.

Pender, L.

Gray of Contin, L.

Peyton of Yeovil, L.

Greenway, L.

Plummer of St. Marylebone, L.

Gridley, L.

Reay, L.

Halsbury, E.

Redesdale, L.

Harmar-Nicholls, L.

Renton, L.

Henley, L.

Rippon of Hexham, L.

Hesketh, L.

Robertson of Oakridge, L.

Hives, L.

Rodney, L.

Holderness, L.

Romney, E.

Hooper, B.

St. Davids, V.

Howe, E.

Sanderson of Bowden, L.

Hylton-Foster, B.

Seebohm, L.

Johnston of Rockport, L.

Shannon, E.

Joseph, L.

Sharpies, B.

Kimball, L.

Skelmersdale, L.

Kinnoull, E.

Slim, V.

Kitchener, E.

Stodart of Leaston, L.

Layton, L.

Strange, B.

Long, V.

Strathcarron, L.

Lyell, L.

Strathclyde, L.

McColl of Dulwich, L.

Strathmore and Kinghorne, E.

Mackay of Clashfern, L.

Swinton, E.

Macleod of Borve, B.

Thomas of Gwydir, L.

Mancroft, L.

Trumpington, B.

Manton, L.

Tryon, L.

Margadale, L.

Ullswater, V.

Masham of Ilton, B.

Vaux of Harrowden, L.

Merrivale, L.

Wade of Chorlton, L.

Mersey, V.

Wedgwood, L.

Monteagle of Brandon, L.

Willoughby de Broke, L.

Mottistone, L.

Wynford, L.

Munster, E.

Young, B.

Murton of Lindisfarne, L.

Resolved in the negative, and amendment disagreed to accordingly.
5.36 p.m.
Clause 4 [Secondary action]:
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 2:
Page 5, leave out lines 9 to 14 and insert:
("(5) Primary action in relation to a trade dispute shall not be relied on as secondary action in relation to another dispute. Primary action means an act done in contemplation or furtherance of a trade dispute.").
The noble Lord said: My Lords, there are some points of importance which emerge often only late in the progress of a Bill. I believe that this is one such point. The Minister may have to suspend disbelief but I assure him that this amendment is a genuine attempt to deal with what we believe is a problem. It is not in any way an attack upon the clause, as our previous amendments have been. We dislike Clause 4 but it will be enacted and must work.
The new feature on employment law in Clause 4 is that not only is secondary action defined but for the first time in our legislation primary action is defined. We thought—as I said in one of our more critical amendments—that that might well be helpful. However, it can only be helpful, simply in terms of clarity, provided that the definition of primary action is right.
Looking again at the matter, after discussion with a number of people in the trade of labour law and employment law, as it were, we now believe that there may be some problems with the definition. If that belief is right, nothing can be more important than to put the matter right because the definition of primary action will be absolutely central to the operation of labour law.
There are three main defects in the definition and description of primary action in subsection (5). First, it states:
"An act in contemplation or furtherance of a trade dispute which is primary action in relation to that dispute".
I pause there because those words clearly allow for the meaning—perhaps must mean—that there may be an act done in contemplation or furtherance of a trade dispute which is not primary action in relation to the dispute. Purely as a matter of grammar there would otherwise be no point in expressing the subsection in that way. That there should be some unstated factor which makes an act done in contemplation or furtherance of a trade dispute a primary action is not something, I believe, that the Government intend. The Minister's speeches were not clear on that point. However, I take it that the Government do not mean to upset the interpretation of the phrase "in contemplation or furtherance" which your Lordships decided in 1982 in Express Newspapers Ltd. v. McShane was clearly stated to require only an honest belief by the defendant that he was acting in furtherance of a trade dispute. If the Government intend no change to that fundamental test, then I believe that they should reconsider the beginning of the definition. We believe that what they are really saying, as the amendment suggests, is that primary action means an act done in contemplation or furtherance of a trade dispute. If there is some other factor, then it should be clearly stated. It would be worrying if that were so. The difference may seem small to non-lawyers. However, it is on such points that cases are won and lost and Acts come to be interpreted in ways which were not intended.
The second defect is in the proposition in subsection (5) that primary action in contemplation or furtherance of a trade dispute,
"may not be relied on as secondary action in relation to another trade dispute".
That protects the primary action from being dubbed secondary and therefore under Clause 4 unlawful without exception. But the provision in subsection (5) is only in relation to a trade dispute; that is, a dispute which satisfies all the requirements of Section 29 of the 1974 Act. An act done in furtherance of its own trade dispute should not be capable of being relied upon as secondary action in relation to any other industrial dispute, whether or not that other dispute is technically a trade dispute within Section 29. I believe that that interpretation may well be the Government's intention. If it is not, then they need to explain why, in relation to a dispute which is not a trade dispute in law, the primary action would somehow lose its quality.
The third defect inheres in the second sentence of subsection (5) which defines primary action by reference to paragraphs (a) or (b) of subsection (2). Subsection (2) (a) and (b) defines secondary action in relation to two types of liability. The definition of primary action is made analogous except that the employer will now be a party to the dispute. The difficulty is that paragraphs (a) and (b) describe the dominant and ordinary liabilities arising in the law of tort from industrial action. For brevity I call them (a) inducing breach of contract; and (b) intimidation by threats to break a contract. If the definition of primary action is confined to those liabilities, as secondary action is, then primary action is confined in a way that is too narrow. There have been cases of primary action where the employment contracts were not broken, where, for example, the organisers were liable for civil conspiracy. That civil conspiracy, as a tort, is protected in a trade dispute by Section 13(4) of the 1974 Act if the act is done in contemplation or furtherance of a trade dispute.
Yet under this definition it would not be primary action because it would not have the content of either paragraph (a) or (b) of subsection (2). It may be a rare case but there is no ground for excluding it. It is not the only type of liability. There may be liability for economic duress under the case law developed since the Universe-Tankships case in 1983 in your Lordships' Judicial Committee. That too is not covered by paragraphs (a) or (b), but I hope that the Government wish it to be primary action.
The point may be put this way. While it works to define secondary action by reference to two out of the many possible liabilities, the same is not true for primary action. If it is an act done in contemplation or furtherance of a trade dispute, it should surely remain primary action no matter what tortious liability it encounters.
I believe that it is an important matter. There are three points of interpretation. In response to the last amendment, the Minister showed how keen he is to look carefully at the drafting. He is right to do so. I strongly urge him to say that he will at least look at the matter before Third Reading. I beg to move.
5.45 p.m.
Lord Campbell of Alloway: My Lords, first, I accept that the amendment is devised to meet problems of construction as seen by the noble Lord, Lord Wedderburn. However, with the greatest respect to him, there is no time, and this is not the occasion, to go into detailed analysis. In my respectful submission those problems of analysis simply do not arise.
Secondly, the noble Lord referred to problems that arise from the case of McShane. As I understand it, that case presents no difficulties. The noble Lord draws a distinction between trade disputes and other disputes. On a fair construction of the Bill as it stands, the distinction does not cause any hint of confusion.
Thirdly, the noble Lord says that primary action is too narrowly defined. So be it. In my respectful view the definition is totally satisfactory.

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I fear that the amendment is totally unacceptable for three short reasons. First, it undermines, and is intended to undermine, the plain effect of Section 15 of the 1982 Act as modified. Secondly, it is incompatible with the policy of excluding immunity for secondary action and tends to obfuscate, not to clarify, the distinction between primary and secondary action in an ell ptical and most confusing manner. Thirdly, the definition of primary action as proposed in the amendment is but declaratory and, with respect to the noble Lord, otiose.
Lord Strathclyde: My Lords, we return to the subject of secondary action, most particularly to the definition of primary action in Clause 4(5).
Your Lordships' discussion of subsection (5) in Committee focused on the first limb of Clause 4(5). Those provisions ensure that where workers take primary action in contemplation or furtherance of a trade dispute with their own employer, that cannot be held to be secondary action simply because, looked at from the point of view of another employer, who happens to be in dispute with his own workers it has secondary effects.
Clause 4(5) is relevant to the situation in which there is more than one trade dispute. It protects genuine primary action in one dispute which may happen to have an effect on another dispute. As I said in Committee at col. 195, it will be for the courts to determine from the facts of the case where relevant proceedings are brought before them whether any particular call to take industrial action is primary or secondary. But Clause 4(5) ensures that genuine primary action will not fall foul of the provisions intended to prevent secondary action.
The first sentence of the amendment taken on its own is technically defective because it assumes, incorrectly, that the same action can be both primary and secondary at the same time. I do not know what the first sentence is intended to achieve beyond what is achieved by the first part of the existing Clause 4(5). But it is clear that it is inconsistent with the way in which the clause as a whole is structured.
Lord Wedderburn of Charlton: My Lords, will the Minister allow me to intervene? The amendment does not repeat what is in the Bill. Clause 4(4) states that each dispute is a separate dispute.
Lord Strathclyde: My Lords, perhaps I may come back to that point in a moment. The real intention of the amendment, so far as I can see, is revealed by the second sentence which addresses the definition of primary action for the purposes of the clause.
When we discussed this point in Committee, the noble Lord, Lord Wedderburn, seemed positively to welcome the introduction of definitions of primary and secondary actions as terms of art. His appreciation of the difference was masterly in its simplicity. He said:
"The basic distinction is that in primary action the employer is party to a dispute with his own employees". [Official Report, 10/7/90; col. 194.]
The definition proposed by the amendment would mean that action which would fall to be treated as
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secondary action under the present law would in future fall to be treated as primary action and hence not be deprived of immunity. The only further test would be whether a relevant act was done in contemplation or furtherance of a trade dispute. That would mean any trade dispute, whether or not with the workers' own employer, thereby greatly extending the potential immunity for organising industrial action.
Lord Wedderburn of Charlton: My Lords, has the Minister forgotten that the 1982 Act redefined "trade dispute" as meaning a dispute with one's own employer? Therefore, a trade dispute cannot be a dispute with anyone else.
Lord Strathclyde: My Lords, that was the way in which I read the meaning of the noble Lord's amendment. The second limb of the proposed Clause 4(5) provides what is, in effect, the only appropriate interpretation of primary action for the purposes of the clause; that is to say, action where the employer under any contract which would be affected by the relevant call for, or threat of, industrial action is the employer party to the dispute.
It is a fundamental principle of the rationale for Clause 4 that there is no reason why employers who are not party to a dispute should be at risk of having industrial action organised against them. But the amendment is designed to allow precisely that; it is no less than a charter for secondary action.
When we debated this clause in Committee the noble Lord, Lord Wedderburn, claimed that he never intended to subvert. In the light of this amendment, however, I wonder whether he may have changed his position slightly. The amendment, if accepted, would certainly subvert not only Clause 4 but also the benefits which the 1980 Act has secured over the past 10 years.
No doubt the noble Lord, Lord Wedderburn, will consider that I have not responded articulately enough to the points made in his amendment. However, the point is that, taken as a whole, it seeks to create a new provision for legal secondary action. I believe that to be unacceptable and I hope that the noble Lord will withdraw his amendment.
Lord Wedderburn of Charlton: My Lords, at this stage of the summer there is no alternative. However, the Minister must allow me to say a few words, even if only out of professional integrity. He should not have read his Committee brief after I had told him that I was not making the same points as in Committee. I told him that we believed that there was a problem and that it was in everyone's interest to clear it up.
With great respect, if the noble Lord, Lord Campbell of Alloway, took a little more time and avoided some of the epithets, he would get more out of it. There are problems none of which has been answered except by a reply giving the pre-1982 definition of a trade dispute. It is the first time that that has been done in this House.
There are three problems which I shall relate to the Minister again. Our amendment states:

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"Primary action means an act done in contemplation or furtherance of a trade dispute".
It cannot possibly be secondary action if it is done in contemplation of a trade dispute because that now means your own employer—
Lord Strathclyde: My Lords, as regards that specific point, the 1982 Act did not have that effect. A trade dispute is a dispute in contemplation or furtherance of a dispute between workers and their own employer. But action by workers at plant A could relate to disputes at plant B.
Lord Wedderburn of Charlton: My Lords, now we are winkling out something. If it is the Government's intention to deprive a primary action of its immunity and protection if it relates to another dispute at plant B, they have not achieved it. The subsection is so obscure that they will not get that out of it. However, if that was what the Minister wished, he took another large step in this legislation. Every time we receive a further reply and supply of information there appears another hole into which, unhappily, the Minister is bound to fall, and I sympathise.
I shall put the points to the Minister and he can then discuss them with his advisers. It would be much better to sit down at a later date and discuss the three points. First, if the act in contemplation is said to be primary action only if it relates to the two types of liability, what happens if it relates to some other type of liability? I shall not repeat the point or give way because the Minister and I know that it is better to deal with the matter round the table.
Secondly, if it is said to be primary action in relation to another trade dispute, what happens if the other dispute is not technically a trade dispute? The noble Lord, Lord Campbell of Alloway, misunderstood that point and he should think on it again. Thirdly, if the act done in contemplation or furtherance of a trade dispute has to have something else added or, as the Minister now says, it loses its quality if it is an act in relation to another trade dispute, in what circumstances does it lose that quality?
I shall withdraw the amendment on the basis that if the Minister looks at those three points he will see that from the Government's point of view the drafting is inept. I beg to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 5 [Minor amendments relating to ballots]:
Lord McCarthy Lord McCarthy moved Amendment No. 3:
Page 6, line 9, at end insert ("and for the purpose of this section, and section 15 of the 1988 Act, where an appointed scrutineer is unable to act, his appointed deputy may act in his place.").
The noble Lord said: My Lords, the amendment deals with an old friend from the 1988 Act; the scrutineer. As a result of the provisions of Section 15 of the Act, the scrutineer appears in elections and political ballots and he has a range of functions. He must produce and distribute the ballot papers; he must receive and supervise the counting of those ballot papers; he must make a report of the result and
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conduct of the election; he must keep those ballot papers in a secure place; and, above all, he must act competently and independently as specified in the Act and by any orders of the Secretary of State.
The scrutineer therefore is an important person. As I read the 1988 Act, the ballot cannot go forward without the presence of the scrutineer. Clause 5 of this Bill adds a series of provisions. Under the provisions of the clause the unions must now publish the name of the scrutineer. He or she is not an unnamed person but an individual and the name must be told to members before the ballot takes place. The new subsection (bb) to Section 15(2) of the Employment Act 1988 states that the union must
"send a notice stating the name of the scrutineer to every member of the union to whom it is reasonably practicable to send such a notice, or … take all such other steps … as it is the practice of the union to take when matters of general interest to all its members need to be brought to their attention".
We do not know what that provision means or what a court might say it means. It might be safer for the union to send a notice stating the name of the scrutineer, but there it is. We now have the necessity to specify this important person crucial to the holding of legal election or political ballots. The members must be told who the person is in advance of the ballot.
I readily admit that in the other place and in this Chamber in Committee we on this side of the House focused on other aspects of the clause. Frankly, we did not fully appreciate the problems involved in the specification of the name of the scrutineer and his additional responsibilities. The simplest way to specify the problems is to suppose that after the name has appeared, the members have been told, the ballot is about to take place or has begun, the union has spent a considerable sum of money and for some reason the scrutineer is indisposed. He could die; he could be struck down; he could fail to turn up (people do fail to turn up); he could resign from the union; or he could act in ways which give the union or someone reason to believe that he is no longer independent. Madam CROTUM might have an application in one of her daily telephone calls saying that there is reason to believe that the scrutineer is no longer independent. What is the union to do? For example, must the AEU stop electing the whole of its national executive and start again? Must the TGWU say that it does not have a general secretary because the old secretary has gone and there must be a re-ballot? Must the result be declared invalid? Should the union rush around with a new name, amend the ballot papers and try to make the best of the situation? There is nothing in the Bill to help on that. The amendment seeks to assist.
The Minister may say—and I shall accept it if he does—that this amendment does not achieve that end and that we should go away and think of an alternative. This amendment suggests that there should be the appointment of a deputy. He should be independent, his name should be put on the ballot paper and if for some reason—and it must be a good and sufficient reason or a complaint could be made to CROTUM—the original scrutineer is indisposed, then the union has a second string. It has a deputy

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scrutineer. This is a very simple and modest amendment which I hope will find favour with the Government. I beg to move.
6 p.m.
Lord Campbell of Alloway: My Lords, I have considerable sympathy for this amendment. On the face of it, it is a reasonable provision and serves as a lubricant for the balloting machinery. It involves no derogation of principle.
However, there is a problem as regards the name of the scrutineer. The noble Lord, Lord McCarthy, referred to "he" or "she". I shall be corrected if I am wrong but I believe that under the regulations a partnership can be appointed as scrutineers. Therefore, I suggest that the amendment should state, "where a scrutineer is appointed other than a partnership". A partnership can be appointed. However, if a partnership is not appointed—and there is no reason why it should be—and the individual appointed scrutineer dies, collapses or is indisposed, it seems to me reasonable that the union should be spared the aggravation and expense.
Lord Strathclyde: My Lords, I have no desire to come back to this point on Third Reading so I shall try to clarify the matter now.
The amendment provides that in circumstances where the scrutineer appointed by the union is for some reason unable to continue his duties, an appointed deputy could act in his place. In practice, it is likely that the individual scrutineer appointed would employ assistants to help him supervise the ballot. In such circumstances, a temporary incapacity on the part of the scrutineer may not render him unable to complete his duties and produce the necessary report.
Of course the Government do not wish unions to be in the unfortunate position of having to re-run a ballot, with all the expense and inconvenience which that would involve; for example, if an appointed scrutineer were taken seriously ill and was unable to complete his duties. However, the solution is in the union's own hands. As my noble friend Lord Campbell of Alloway pointed out—and he is correct the relevant statutory order allows a partnership to be appointed as the scrutineer provided that every member of the partnership is potentially qualified as an individual to be a scrutineer.
Unions wishing to avoid the possibility of such problems would therefore be well advised to appoint a partnership or one of the existing specified bodies as scrutineer rather than an individual. After all, that is what a company would do if it was worried that an individual accountant might not be able to complete the audit of its accounts.
Therefore, I appreciate the motives behind this amendment. However, this proposed solution to problems which should arise only in rare circumstances would not be satisfactory. In short, I believe that the amendment is unnecessary and could have unsatisfactory results. I hope that the noble Lord will withdraw his amendment.
Lord McCarthy: My Lords, I am pleased that the noble Lord, Lord Campbell of Alloway, points out
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that a partnership can be appointed. I am sure that that is right. I would ask—and I believe that the noble Lord, Lord Campbell of Alloway, agrees with me—why unions should have to appoint partnerships. They may wish to appoint scrutineers who are known to them, who have worked for them in the past and with whom they have had associations. They might wish to appoint as scrutineer an individual and not a limited company. In those circumstances the noble Lord, Lord Campbell of Alloway, says—and I shall be happy to table an amendment at a later stage which takes this on board—that our amendment should be changed so that it includes the words "other than a partnership". That is a perfectly reasonable modification. I only wish that the Government could have seen their way to look in the direction of our amendment or the modification as suggested by the noble Lord, Lord Campbell of Alloway.
The Minister said that assistants may be used to carry out the job. However, that could be so only if the scrutineer does not drop dead. If the scrutineer had passed away, then that is not the case. I do not believe that that is a satisfactory response to what is a very real problem. It is not enough to say that it is a matter for the unions.
Lord Campbell of Alloway: My Lords, can an assistant act if he is not qualified?
Lord McCarthy: My Lords, no. The noble Lord is right. I do not believe that the Minister was saying that an unqualified assistant could so act. It may be that where there is a qualified assistant there will also be a partnership or a limited company. Therefore, the problem arises when a union does not act in that way.
The Minister said that that is a matter for the union, like so much else in this Bill. The Minister has not given a satisfactory response but I suppose that in some ways we should expect that at this stage of the Bill. Nothing is done to assist small trade unions who may not wish to appoint partnerships or limited companies. The Minister could easily have accepted our amendment or the modification suggested by the noble Lord, Lord Campbell of Alloway.
The Minister tells me that the amendment is not necessary and goes on to say that it may have certain disadvantageous consequences but does not explain what they are. However, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 6 [Responsibility of trade union for acts of officials, etc]:
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 4:
Page 6, leave out lines 31 to 33 and insert ("who included members of the union the purpose or principal purpose of which was organising or co-ordinating industrial action and of which he was at any material time a member for that purpose. In this paragraph, organising or co-ordinating industrial action does not include bringing or seeking to bring industrial action to an end.").
The noble Lord said: My Lords, I shall try to overcome the resistance to trying to help the

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Government in case I receive answers to amendments other than those which I am moving or information from 1981.
Perhaps I may take the Minister's description of the position to which Clause 6 applies from Hansard in Committee. He introduced the notion of Clause 6 by saying that it involved:
"first, widening the potential liability of unions, so that this applied in respect of relevant acts done by any of its officials or committees, including shop stewards; and, secondly, ensuring that, where any union official or committee called for industrial action and that act came to the knowledge of the union's executive, president or general secretary, they would have to make it clear to all concerned if the union repudiated what the official or committee had done".—[Official Report, 10/7/90; col. 2201
That is clearly the Government's aim. Their aim is to extend the range of acts for which the union is responsible in law as regards industrial action even further than the 1982 legislation.
The Government are determined to make unions liable for acts done by each and every official, even officials of a branch—for example, the lay branch treasurer and so on—no matter what their authority or what the rules say and to impose after that procedures which make it at the very least extremely difficult for the union to be sure that it has repudiated what has been done.
This amendment—and I shall say this twice for the Minister—does not challenge, does not challenge any of that. This amendment challenges the far greater extension of union liability in Clause 6. The new subsection (3A) (b) makes the union liable for acts done or authorised not by its committees but by any group of persons or members of a group of persons who may not be members of the union—a group of strangers. The conditions for that wholly extraordinary imposition of liability vicariously on a body for the act of a stranger are twofold. First, the group must have purposes which include the organising or co-ordinating of industrial action. That need not be the principal purpose. It need not be any more than an incidental or fleeting purpose. As the Bill stands, a situation in which a group of workers are discussing matters for a few hours, and for a few minutes in the course of that time they discuss industrial action to the degree that they are co-ordinating it—whatever that means—will satisfy the clause. Secondly, there must be some contact with the union, however curious. That occurs when any union official has at the material time been a member of the group.
Out of interest I ask the Minister what is the "material time"? It does not seem to be the time of co-ordinating the action; that is the purpose of the group. Is it any time that the group exists? It would be useful to have the explanation on record. It appears to be all or most of the time that the group exists. A local full-time official, for example, may have called in for a brief discussion regarding a dispute with the people taking part. One person may be a member of his union and the rest may not. The official may have called in contrary to the instructions of his union. Suppose the general secretary telephones and says, "Don't go near
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that unofficial dispute. We do not want anything to do with it". If the official then comes in and joins in with the group as a member at some material time and the group has obviously had functions of co-ordinating industrial action or taken some part in organising it, that is enough to make the union liable.
That is a quite extraordinary type of liability. It is said that the Transport and General Workers' Union, with something like 1¼ million members, is now to be liable to the full extent of its assets by reason of an act done by a non-member who was part of a group of persons which had as a minor purpose the co-ordination of unofficial industrial action by reason that at a material time—whatever that may be—a shop steward, contrary to his authority and contrary to instructions from headquarters, had taken part in one of the meetings. The Government claim that the clause is necessary to combat unofficial action. In that scenario it is difficult to see how the combating of unofficial action would be effected. As the noble Lord, Lord Rochester, said in Committee at col. 226 of Hansard, this surely is a provision which goes "over the top".
The amendment leaves the paragraph—and I hope the Minister will accept this—wider than we would wish. However, the paragraph would be consistent with the Minister's general description of the nature of the clause and in touch at least with ordinary rules of law which restrict vicarious liability to notions of authority or course of employment. That is to say, it would require that the group were members of the union, that the purpose was a principal purpose and that the official had not attended merely for the purpose of trying to bring industrial action to an end.
In practice if this clause and this paragraph were put into effect, shop stewards who, to use the phrase of my noble friend which was taken up by the Donovan Commission in 1968, are in industry more of a lubricant than an irritant would cease to be able to fulfil that role much to the annoyance of a large number of managers, quite apart from the question of trade union organisation.
Some softening of the paragraph is surely needed if managers and union officials are to play useful parts in ending disputes, quite apart from the question of co-ordination. I beg to move.
6.15 p.m.
Lord Rochester: My Lords, as the noble Lord, Lord Wedderburn, said, in Committee we had some discussion on an amendment which sought to delete subsection (3A) (b) of Clause 6. I supported that amendment on the grounds that it was unreasonable for a union, unless it went through an elaborate procedure of repudiation, to be held liable for the actions of a single member of a group which perhaps unbeknown to the local union official had decided to take industrial action.
The noble Lord, Lord Wedderburn, quoted from the reply of the noble Lord, Lord Strathclyde, to that debate at col. 226. I particularly noted the words of the Minister at col. 227, where he said:

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"The provisions of Section 15(3A) (b) proposed by Clause 6 will not prevent union officials using their influence to avoid or end industrial action organised by others".
The last sentence of the amendment takes the Minister at his word and simply seeks to incorporate that assurance into the Bill. That makes sense to me and I therefore support the amendment.
Lord Strathclyde: My Lords, this amendment seeks to undermine the intended effects of Section 15 of the 1982 Act as it would be modified by the clause by enabling union officials to avoid proper responsibility for what members will see as "acts of the union" by getting others with whom they are associated to do the relevant act "on their behalf".
Clause 6 recognises that when union members are called upon to take industrial action by a group of which their shop steward is a member, as far as the members are concerned that will be a call by "the union". That reality will be reflected in the provisions of the modified Section 15. But it is vital to appreciate that we are not going as far as saying that a union cannot avoid liability for relevant acts of its officials or committees. Other provisions mean that such liability can be avoided where a union finds it necessary and appropriate to do so by following the procedure for "effective repudiation". That too is reasonable and right.
Bearing these points in mind, let me address this particular amendment. The amendment would modify the provisions of section 15(3A)(b) as they would stand amended by Clause 6(3). The new Section 15(3A)(b) is needed to ensure that a union will be potentially liable if a relevant act is done by a group of persons of which an official is a member. If this was not done, it would be impossible to know whether a union was liable for a relevant act done by such a group unless it could be established that the official had personally done the act in question. However, it seeks to make the provisions much more restricted. Liability would only apply if the official was a member of the group "for the purpose" of organising or co-ordinating industrial action. That would allow a shop steward, for example, to give his "authority" to the activities of a group which might then call for industrial action, but there would be no liability if the shop steward could show that he personally had not been a member of the group for that purpose.
I would add that the idea of an official being a member of a group for some purposes of the group but not for others is strange in itself. Surely a person who chooses to be a member of a group would usually be a member for all its purposes? In addition, by its reference to "purpose or principal purpose", Amendment No. 4 would allow wide scope for union officials to organise industrial action through groups which had "organising or co-ordinating industrial action" as a secondary or subsidiary purpose. The amendment would certainly undermine the intended effects of these provisions.
The provisions in the final sentence of the amendment are completely unnecessary. There is simply no question of any court holding that an act which has the genuine purpose of,
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"bringing or seeking to bring industrial action to an end",
is an act for the purpose of "organising or co-ordinating industrial action". On the other hand, just because a relevant group of which a union official is a member has both purposes should not enable a union to avoid its proper liability for the acts of that group or its members in so far as they involve calling for industrial action.
Furthermore, stating that, for the purposes of these particular provisions:
"organising or co-ordinating industrial action"
was not to include:
"bringing or seeking to bring industrial action to an end",
could actually call into question whether there might not be just that implication in respect of other provisions of the law. It simply cannot be right to raise any such doubts or unnecessarily to complicate these provisions in the way proposed by the amendment.
The noble Lord, Lord Wedderburn, asked a specific question. He wanted to know what the Government meant by "material time". I can tell the noble Lord that "material time" is when the act for which the union is potentially liable was done. The noble Lord—essentially supported, as I understood him, by the noble Lord, Lord Rochester—went on to cite an example of what would happen when a union official goes to see what is the problem which has given rise to unofficial action, and suggested that the official's involvement might amount to becoming a member of the group such as to make the union potentially liable. I see no reason whatever to worry about such an eventuality. I do not believe that unions or their officials should worry about it either. What constitutes membership of a group falls to be decided as a matter of fact and according to common sense principles. In the case described the union official would not be a member of any relevant group.
The provisions of Clause 6 will not prevent union officials using their influence to avoid or end industrial action organised by others. Nor will they allow a group which calls for unofficial action to have the authority which might be imparted to it by a shop steward being among its members unless the shop steward is willing to risk making his union potentially liable for what the group, or any of its members, does by way of organising industrial action.
Essentially, this amendment is all about blatant avoidance of liability falling upon the union. I hope that in the light of those remarks the noble Lord will withdraw his amendment.
Lord Murray of Epping Forest: My Lords, the noble Lord appealed to our common sense. I do not pretend to understand the legal complexities of this clause but I thought, when exercising my common sense in reading it—perhaps the noble Lord will explain why I am wrong—that an official becomes a member by attending a meeting: the mere fact that he goes to a meeting makes him a member of that meeting.
As I understand it, if an official goes to a meeting with the express purpose of saying, "Do not be crazy. This is absolutely daft. Do not do it", by being there he becomes a representative of the union and a

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member of the group for that purpose. I am sure that I am wrong, but will the Minister explain to me how, if the official attends the meeting for that purpose, it does not have the effect that he described?
Lord Strathclyde: My Lords, if, for example, a shop steward goes to a union meeting to, say, stop the group from indulging in unofficial action, there would be no problem. However, if the shop steward plays a full part in that meeting and perhaps even encourages unofficial action, it is fair and basic common sense that the union should therefore be liable.
Just because an official goes to a meeting of a group, that does not, in itself, make him a member. That is the point that the noble Lord, Lord Murray, sought to make, and that is the key to it. There is no desire to catch out union officials. We are trying to create a system whereby unions cannot deny liability when a union official has blatantly played a part in organising unofficial action.
Lord Murray of Epping Forest: My Lords, I find that reply very helpful. Perhaps the noble Lord can help me a little further. Will he explain to me, as I do not fully understand, where the words appear in the clause which state that if the official goes to a meeting for the purpose of not endorsing the action he is therefore not a member of that group? Where do I look in the Bill for that explanation?
Lord McCarthy: My Lords, before the Minister answers that question, will he take on board my related point? Will he accept an amendment which makes it absolutely clear, since it does not appear to be on the face of the Bill, that if a shop steward or a full-time official of the union attends a meeting and plays a full part, but with the object of persuading members not to undertake the unlawful act, the union will not be liable because the official will not be regarded as being a member of the meeting?
Lord Strathclyde: My Lords, I am sorry that I have not made myself clear. I said earlier that what constitutes membership of a group falls to be decided as simply a matter of fact. You are either a member of a group or you are not. It is that which comes under clear common sense principles. There is no need to go further. If noble Lords opposite cannot understand that, I am sorry.
Lord McCarthy: My Lords, the noble Lord is saying that if you are at a meeting that is a fact and you are liable. He is completely contradicting what he said two minutes ago; that you can be there, that it can be a fact you are there, but if you support the law and try to get people not to strike you are not a member and not liable.
Lord Renton: My Lords, may I be so bold as to remind your Lordships that this is not a Committee stage?
Lord Strathclyde: My Lords, with the leave of the House and for clarification perhaps I can deal with that final point. This is not about whether or not someone is at a meeting. It is about whether someone is a member of a group. That is the issue at stake. That
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is the matter of fact, not the geographical position of the person being present at a meeting. I believe that I have made the position clear.
Lord Wedderburn of Charlton: My Lords, this amendment has probed a number of matters which should have been probed before. The further the Minister went, the more extraordinary the Bill appeared. We should remember that we are discussing liability in law for a body of persons whose funds are held in trust, jointly, for all the members and whether that body will be made liable in the courts for an act done by a stranger. The noble Lord has not in any way denied, nor can he, that the actual act done—say, the calling out of a shop on unofficial strike—may be the act of a stranger. The link is back through the group to the official.
Before we do that, the Minister's reply on material time in that connection is remarkable. As I understood it the Minister said—he will correct me if I am wrong—that "material time" is the time when the act is done for which the union is responsible in law. The act done in the example—it is a perfectly normal example—is the act of calling out workers in the shop. By that time the group has gone home. The official is not a member of anything by that time; the group met the night before. Therefore, if he is a member at the material time the paragraph is an absurdity. The whole point is that it is dealing with unofficial groups who are likely to have dispersed before the act is done.
In regard to membership, if the official has to be a member at the material time, presumably all the official has to do—I would not like to draft a clause so easily evaded—is to become a member before the act is done and make sure that he is not a member at the time the act is done. I cannot believe that the courts would read the Bill to mean that. Of course they would not. They would read the Bill to be much more draconian, as it is meant to be.
My noble friend Lord Murray and the noble Lord, Lord Rochester, aimed their shots at the question: when are you a member? The Minister now tells us that you are not a member merely by being present. On the other hand, he said earlier that you cannot pick and choose. If you are in a group you must share all the purposes. Therefore, what kind of test does the evidence have to come up to? What does the affidavit of the official who has gone in and tried to solve the dispute have to say?
I stick by the average case. When something blows up that nobody knew about of course the first telephones to ring will be those of the works manager, or other manager, and the local official of the union. If the union official tries to do his best to help, or at any rate participates to any degree, he will be regarded by the courts as being a member of the group. The paragraph is absolutely plain. The Minister is not giving the interpretation that a court would place on it. It is a totally unreasonable paragraph and we shall divide the House against it.
6.30 p.m.
On Question, Whether the said amendment (No. 4) shall be agreed to?
Their Lordships divided: Contents, 66; Not-Contents, 105.

Division No. 3

CONTENTS

Addington, L.

Kirkhill, L.

Airedale, L.

Listowel, E.

Attlee, L.

Llewelyn-Davies of Hastoe, B.

Barnett, L.

Lloyd of Kilgerran, L.

Birk, B.

Lockwood, B.

Blackstone, B.

Lovell-Davis, L.

Bonham-Carter, L.

McCarthy, L.

Boston of Faversham, L.

McIntosh of Haringey, L.

Bottomley, L.

Mason of Barnsley, L.

Brooks of Tremorfa, L.

Milner of Leeds, L.

Carter, L.

Morris of Castle Morris, L.

Cocks of Hartcliffe, L.

Murray of Epping Forest, L.

David, B.

Nicol, B.

Davies of Penrhys, L.

Ogmore, L.

Dean of Beswick, L. [Teller.]

Oram, L.

Dormand of Easington, L.

Peston, L.

Ewart-Biggs, B.

Phillips, B.

Falkland, V. [Teller.]

Prys-Davies, L.

Foot, L.

Rea, L.

Gallacher, L.

Rochester, L.

Galpern, L.

Serota, B.

Glenamar, L.

Shackleton, L.

Graham of Edmonton, L.

Shepherd, L.

Grey, L.

Stoddart of Swindon, L.

Hampton, L.

Strabolgi, L.

Harris of Greenwich, L.

Taylor of Blackburn, L.

Hatch of Lusby, L.

Thomson of Monifieth, L.

Hollis of Heigham, B.

Tordoff, L.

Hughes, L.

Turner of Camden, B.

Jay, L.

Underhill, L.

Jeger, B.

Walston, L.

Jenkins of Hillhead, L.

Wedderburn of Charlton, L.

John-Mackie, L.

Williams of Elvel, L.

NOT-CONTENTS

Aldington L.

Fraser of Carmyllie, L.

Arran, E.

Gardner of Parkes, B.

Atholl, D.

Glenarthur, L.

Auckland, L.

Gray of Contin, L.

Balfour, E.

Greenway, L.

Beloff, L.

Gridley, L.

Belstead, L.

Halsbury, E.

Blatch, B.

Harmar-Nicholls, L.

Blyth, L.

Henley, L.

Boardman, L.

Hesketh, L.

Borthwick L.

Hives, L.

Boyd-Carpenter, L.

Holderness, L.

Brabazon of Tara, L.

Hooper, B.

Broadbridge, L.

Howe, E.

Butterworth, L.

Johnston of Rockport, L.

Caithness, E.

Joseph, L.

Caldecote, V.

Kimball, L.

Campbell of Alloway, L.

Kinloss, Ly.

Campbell of Croy, L.

Kinnoull, E.

Carnegy of Lour, B.

Kitchener, E.

Carnock, L.

Lauderdale, E.

Carr of Hadley, L.

Lawrence, L.

Cavendish of Furness, L.

Long, V.

Clanwilia, E.

McColl of Dulwich, L.

Colwyn, L

Mackay of Clashfern, L.

Cox, B.

Macleod of Borve, B.

Craigavon, V.

Mancroft, L.

Darcy (de Knayth), B.

Margadale, L.

Davidson, V. [Teller.]

Merrivale, L.

Denham, L. [Teller.]

Mersey, V.

Elles, B.

Monteagle of Brandon, L.

Elliot of Harwood, B.

Mottistone, L.

Erroll, E.

Munster, E.

Ferrers, E.

Murton of Lindisfarne, L.

Flather, B.

Napier and Ettrick, L.

1246

Nelson, E.

Skelmersdale, L.

Norfolk, D.

Slim, V.

Nugent of Guildford, L.

Stodart of Leaston, L.

Orkney, E.

Strange, B.

Orr-Ewing, L.

Strathcarron, L.

Oxfuird, V.

Strathclyde, L.

Pearson of Rannoch, L.

Strathmore and Kinghorne, E.

Pender, L.

Swinfen, L.

Reay, L.

Swinton, E.

Redesdale, L.

Thomas of Gwydir, L.

Rees, L.

Trumpington, B.

Renton, L.

Tryon, L.

Rippon of Hexham, L.

Vaux of Harrowden, L.

Romney, E.

Wade of Chorlton, L.

St. John of Fawsley, L.

Willoughby de Broke, L.

Sanderson of Bowden, L.

Wynford, L.

Seebohm, L.

Young, B.

Sharpies, B.

Resolved in the negative, and amendment disagreed to accordingly.
6.37 p.m.
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 5:
Page 6, line 35, after ("union") insert ("save for the purpose of determining whether the principal executive committee has caused a person to cease to be an official.").
The noble Lord said: My Lords, this amendment has been tabled partly because at Committee stage on 10th July the Minister said that he would look at the matter again though he promised nothing. I hope that he has looked at it again. I do not know quite how to deal with the amendment in view of the response that I received to the second amendment on the Marshalled List. This amendment is another attempt to avoid what one might reasonably call a near absurdity in the Bill. At any rate, it is a difficulty which could give rise to quite unnecessary litigation. That is The point that arose before.
I hope that the Minister will have some positive response to make. The clause deals with making unions liable for their officials. But who is an official? The Bill drops the old special definition of an official that was relevant. That is quite understandable because it will not be relevant to the new law. Therefore, the definition rests on that given in the 1974 Act with which we have no quarrel. There an official is described as,
"a person elected or appointed in accordance with the rules of the union to be a representative of its members or some of them".
The question that arises is this: how do we know whether an official has been properly appointed, properly dismissed or his appointment terminated? A difficulty arises because the new subsection (3) (B) added to Section 15, tells us that we must approach that issue in the relevant context of the clause,
"notwithstanding anything in the rules … or in any contract or rule of law".
In Committee we put it to the Government that in their zeal to exclude the rules of the union on the one hand and to make the union liable for all officials on The other they had run on to a legal sandbank. The union is not to escape liability merely because the rules have been broken in the appointment of an official. Although one has difficulty, one can see that a de facto appointment might be enough for a court to recognize the proper appointment of an official. But the position

1247
with dismissal or termination—or, in trade union terms, withdrawal of credentials—of a shop steward or other similar official will not be so simple. If the union withdraws the credentials of a shop steward, although the rules may give, say, the national executive committee authority to do so, we cannot look at the rules. Therefore, if the shop steward said, "My credentials have not been properly withdrawn. I argue that it is within the competence of the divisional committee, or some other body or group in the union", how would that dispute be resolved in court? If the court cannot look at the rules what does it decide?
In Committee I suggested the absurd conclusion might be drawn of "once an official always an official" if that person did not agree to be dismissed or have his credentials withdrawn. Knowing the Government's fierce objections in another context to tenure of posts even when it is necessary, I cannot think that it is their intention to back tenure here.
I accepted the Minister's objections to another point in our previous amendment, which allowed for automatic termination—for example, a rule which said that as soon as an official did wrong that official's tenure came to an end. I accepted that that would not be in accordance with the Government's clause, so we have not repeated it in this amendment.
In this amendment we have a provision which says that the principal executive committee has to act to cause a person to cease to be an official, and that that at least should be determinative in the court. That may seem a small point, but I hope the Minister will address the problem and will tell us that he has a better answer to it than ours. If it is not addressed it will give rise to unnecessary litigation and uncertainty on both sides of industry, which cannot be the intention of the Bill. I beg to move.
Lord Campbell of Alloway: My Lords, let us accept that in the past, fortunately, on few occasions, we have seen some unacceptable manoeuvring by principal executive committees. Let us not indulge in the names of unions or officers, or any personalities concerned. However, any government has to take that sort of factor into account in order to make its legislation work and stick.
A union could resort to this amendment to escape potential liability for acts of its officials under Section 15 of the 1982 Act, as proposed to be amended by Clause 6. The amendment is incompatible with Clause 6. Therefore, I hope that my noble friend the Minister will not accept the amendment.
6.45 p.m.
Lord Strathclyde: My Lords, the Green Paper Unofficial Action and the Law explained the case for changing the present law on union liability for certain acts done by its officials and committees. If I had to summarise the nature of its particular proposals, I would say that they involved widening the potential liability of unions, so that this applied in respect of relevant acts done by any of its officials or committees, including shop stewards, and ensuring that where any
1248
union official or committee called for industrial action, and that act came to the knowledge of the union's executive, president or general secretary, they would have to make it clear to all concerned if the union did, in fact, repudiate what the official or committee had done.
That is what clause 6 is all about. It builds upon the present law concerning union liability for relevant acts—that is to say, Section 15 of the 1982 Employment Act—so as to update that law. On the other hand, this amendment seeks to undermine the intended effects of Section 15 of the 1982 Act by providing scope for unions or their officials to evade liability by adopting rule book devices.
As the noble Lord, Lord Wedderburn, said I promised to give further consideration to the issues that he highlighted in Committee. I am delighted to tell the noble Lord that there is a simple answer to his problem. The provisions of Section 15, as proposed, would mean that a union is only liable for acts of relevant officials at the time when they are such officials. In his example, if the shop steward was no longer a union official, any call he made to take industrial action would not render his union potentially liable. But that does not mean that unions can escape potential liability by some sort of rule which attempted to provide that any official ceased to be an official at the moment of calling for industrial action. The provisions of the proposed Section 15(3B) are designed to cut out exactly that sort of avoidance device.
It may be helpful if I express the position in generalised terms. What will matter under the provisions of the amended Section 15 will be an individual's status at the time of the relevant Act. If a person is a union official, a relevant act such as a call to take industrial action will render his union potentially liable. However, if the union, following repudiation of what its official has done, takes steps which mean that the person is no longer elected or appointed in accordance with the rules of the union, a similar act thereafter by the same person would not be an act for which the union would be potentially liable. Accordingly, the problem which the noble Lord thought he had identified simply does not exist.
The amendment enables a union to avoid potential liability for any relevant act of its officials or committees by having a rule which provided that in relevant circumstances an official who did a certain act was no longer to be regarded as an official. What would happen if any such option was to be open to unions? It must be reasonable to assume that unions would proceed forthwith to make such rules as were necessary to restore the status quo. Certainly, the union's rules might then deny shop stewards the authority to call for industrial action on behalf of the union. But would members appreciate that sort of technical difference? I venture to suggest that they would not.
I believe the amendment to be unnecessary; I hope that the noble Lord will withdraw it.
Lord Wedderburn of Charlton: My Lords, there is a difference with this Employment Bill. In my experience there has never been an Employment Bill where at Report stage there have begun to emerge so many fundamental points of greater difficulty than at Committee stage.
The noble Lord looks puzzled. Let me put it simply, and in so doing reply also to the noble Lord, Lord Campbell of Alloway who said that the amendment would mean that a trade union could escape liability for its officials. Let us suppose that on Sunday the noble Lord, Lord Campbell of Alloway, is appointed a shop steward wholly in accordance with all the procedures; on Monday the noble Lord calls for unofficial action, and his union is liable; and on Tuesday, no doubt at the instigation of the Minister, who is general secretary, the union withdraws his credentials. Under the amendment—for we say that one needs the amendment to enable him to do that—there is no retroactive effect. The union is not escaping liability for something he has done. It is operating an organisation by saying that, according to its procedures, on the Tuesday this particular person no longer holds that particular post. It may need a vote of a committee, but that is how it works. There is nothing retroactive about that.
At one stage of his reply—this is an important matter—the Minister said that if that kind of thing happened—I hope I have him right; he will tell me because he has the information there to look at—the official, no longer being elected or appointed in accordance with the rules, is no longer an official. However, if he said that to the court, counsel against him would say, "Have you not overlooked subsection (3B)?", which states that the provisions of the relevant paragraphs,
"apply not withstanding anything in the rules of the union".
If the noble Lord wants his Bill to mean what he said then, he must put in an amendment. I am perfectly prepared to accept that ours is not perfectly worded. I could suggest some slightly better words now that we have debated it, but something along those lines is necessary.
That is not the only thing that the noble Lord said. That is where the distinction comes in. At the heart of his reply he said the exact opposite; namely, that if you allowed the kind of thing in our amendment, it would allow unions to undermine the purposes of the clause. The amendment allows unions according to a procedure that involves the principal executive committee—if the noble Lord does not like that, I am willing to put in anything he wants—to bring to an end the tenure of an official. He says that that will subvert the purposes of the clause. There are those who believe that that is the right answer and that the purpose of the clause is to make trade unions liable for any arid every official, even for one who has ceased under the rules to be an official according to the union's practices, because that is what the Bill says.
Finally, the noble Lord said, "Of course it's all very easy". We shall come back to the matter on later amendments. He said that, no matter what the right answer here of liability and what he called potential
1250
liability, about which I shall have to read in Hansard, the union can always repudiate. That is where we come to the truth of the matter. It appears that the Government intend to make a trade union—a body of persons with funds on trust—liable for the wholly unauthorised person.
The noble Lord looks surprised. If he belonged to a club, would he like the subscription that he had made over the years to go out in legal proceedings and liabilities because a stranger or an official had acted covertly and secretly and had bound the club? He would be outraged. I see that he is outraged, but he is not outraged when it involves a trade union because a trade union is a special body and must therefore repudiate everything.
When we consider the realities of repudiation, it is that part of the clause that we must keep in mind because repudiation in many cases is a false trail. Perhaps I may stay with it. In the type of case that I put, the shop steward, who the union says has come to the end of his tenure but who disputes that and then goes off and does something for which the Minister makes the union liable, is much more likely to do it secretly than openly. Therefore, to say that the union can repudiate is to say that it always knows what all the people for whom it is made liable are doing when, by hypothesis under the clause, they are people of whom the union will not have much knowledge in a dispute.
It is extraordinary that what I thought was a relatively simple suggestion to the Government that might have met with some positive contribution from them in terms of administering the Bill has provoked such a response. They do not want to administer industrial relations. They do not believe in industrial relations. They believe in union liability. That is the Minister's favourite phrase. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McCarthy Lord McCarthy moved Amendment No. 6:
Page 7, line 15, at end insert:
("(5C) The Secretary of State shall within three months of the passing of this Act introduce a scheme by order made by statutory instrument providing for payments by the Certification Officer on the application of a trade union towards expenditure incurred by it in satisfying paragraph (i) of subsection (5) (b) above, where it has in the preceding six months been required by reason of that paragraph to write individually to more than 1,000 members.").
The noble Lord said: My Lords, we turn now to an issue which we raised in Committee but which we have tried to bring back in a different way in the hope that the Government might listen to it in a slightly more sympathetic way.
In Committee we argued that the Government should agree to extend Section 1 of the 1980 Act, allowing payments towards the cost of statutory ballots, to cover what one might reasonably term statutory repudiations because, with statutory repudiations as with ballots, the union has no choice. The idea that there should be repudiation and that repudiation should be the only way out for a union in a whole range of circumstances, as my noble friend

1251
Lord Wedderburn has spelt out, is in the Bill. It is as compulsory as the necessity to have political and election ballots. We suggested it because it is all square with the statutory procedure on election and political ballots and because we believe that the cost to the union of the process might be equally as severe as that of political or election ballots.
The Minister replied in a number of ways. It is because we are not satisfied with the ways in which he replied and because we believe that they varied according to where we were in the debate that we have come back to the argument this evening.
The Minister replied first of all by arguing that it was not normal to subsidise the carrying out of public duties and that statutory repudiation was a public duty. He said:
"It is exceptional for the costs of carrying out statutory duties to be subsidised from public funds".
The Minister says, "Hear, hear". He went on to say:
"The position in respect of trade unions is no different and there is no good reason why the public should bear any of the costs which properly fall upon trade unions".
We replied, "But you did it for ballots. If you have done it for ballots and it is provided for a statutory duty or a ballot, why not provide it for revocation notices, which are equally statutory and inescapable and might be equally costly?" The Minister replied that it did not start as a statutory duty; it started as an incentive to voluntary practice. That was a different explanation. He said:
"the ballot funding scheme was established to encourage the voluntary extension of balloting before industrial action. The law was subsequently changed to require unions to ballot their members as a condition of securing immunity from legal proceedings but the Government have not as yet seen fit to terminate the scheme".
The Minister then made a remarkable suggestion. It was the first time that it had been made. At least the Government appeared to be making concessions at that point, if not concessions that we could conceivably pick up. He said:
"If the Opposition is concerned about an alleged inconsistency, that can soon be removed by abolition of the ballot funding scheme, although I must add that at present there is no plan to do so".
We replied, "Why not remove that inconsistency in an alternative way which will be more generous and acceptable to the union by applying Section 1 of the 1980 Act to both types of expense?" The Minister replied that he could not do that. My noble friend Lord Wedderburn said:
"There is no difference whatever. Both are matters of civil liability and both are conditions imposed by statute framing the civil liability or exculpation".
The noble Lord, Lord Strathclyde, replied:
"The noble Lord is right".—[Official Report, 10/7/90; cols. 243–44.]
By this time, the Minister had come full circle, so we are trying another tack.
A reasonable case might have been made against the terms of our amendment. You might say that our amendment was not required in small-scale examples. After all, the certification officer spent £1.3 million last
1252
year on 67 unions, an average of £20,000 a union. You might say that sums of that kind will not be needed in many repudiation cases. That would be a reasonable argument. A reasonable reply would be the terms of the amendment to limit the opportunity for repudiation funds, as it were, to those situations in which the union has a significant number of members. That is what we suggest in the amendment and that is why we put it to the House. I beg to move.
7 p.m.
Lord Campbell of Alloway: My Lords, I oppose the amendment in principle. Why on earth should the taxpayer fund the trade unions? There is no true analogy, as is sought to be made, between reimbursement of postal costs on ballots under the Employment Act 1980 and expenditure incurred in giving notice to avoid liability for acts of officials. There is no analogy whatever. The industrial relations situation in 1980—that is, the early days of the Thatcher Administration—was very different. Every reasonable inducement was offered to ensure that ballots should be held in the interests of protecting the rank and file membership.
However, in the changed situation of today there is a totally different industrial climate. One supposes that that is wholly acceptable to the Labour Party. Nevertheless, if I remember correctly, the balloting proposals were opposed 10 years ago. At all events, the proposed refund for expenditure,
"is not limited to postal costs and includes all manner and kind of expenditure".
Therefore, the amendment is also open to objection on that ground, if none other.
Lord Rochester: My Lords, I rise to express my support for this amendment. If unions are to be obliged by law to go through the whole complicated process of repudiation, then they will be burdened with administrative and logistical problems. They may also have to incur quite heavy expenditure. I believe that there are good reasons for asking the Government to fund some of the expenditure involved. Indeed, that is what the amendment seeks to achieve. It is significant that in its briefing memorandum on the Bill, the British Institute of Management also thought so.
In my opinion, Clause 1 of the Employment Act 1980 affords a reasonable precedent. The response of the Government to the amendment could be precisely that advocated by the noble Lord, Lord Campbell of Alloway; namely, that if in future people are so foolish as to engage in unofficial action for which the union would be legally liable unless it repudiates the action, it is just too bad, the union will have to accept the financial consequences, along with all the other attendant problems. I hope that that will not be the Government's response, although I am not very sanguine about the matter. I suggest that this is one area in which they could gain a little credit by showing some magnanimity. I trust that they will do so.
Lord Campbell of Alloway: My Lords, before the noble Lord sits down I should like to ask him a

1253
question. Does he understand expenditure as including what it appears to say—that is, all expenditure—or is it merely limited to postal costs?
Lord Rochester: My Lords, I am not very strong on expenditure of any kind. However, a virtue of the matter seemed to me to be that, in moving the amendment, the noble Lord, Lord McCarthy, was not seeking to cover all expenditure; he was seeking to cover only the expenditure which applied where more than 1,000 people were involved.
Lord Boyd-Carpenter: My Lords, I see no reason that this expenditure should be put upon the taxpayer. The taxpayer has had nothing whatever to do, ex hypothesi, with the circumstances under which this liability has arisen. It has arisen solely because the union has got itself into a bit of a mess. Therefore, if it has got itself into a bit of a mess, it should pay for it.
Lord Strathclyde: My Lords, there is no reason why the public should be expected to bear any of the costs that properly fall upon trade unions which find it necessary to go through the process of effective repudiation.
If union officials, and groups or members of groups with which they are involved, do not make unlawful calls for industrial action, they will not render their union potentially liable. That is the best way for a union to avoid having to go through the repudiation process. But where such calls are made, the Government believe that it is entirely right that a union should, where appropriate, have to make it clear to all concerned that it has in fact repudiated any such call. The provision of individual written notice is simply a means to this end.
Therefore, when the Opposition tell us that they are worried about the "burdens" that these arrangements may cause, they are really telling us that they expect union officials and others with whom such officials are associated, to act—or even to go on acting—in the same irresponsible way.
I was disappointed by the remarks made by the noble Lord, Lord Rochester. He said that he was not very good at expenditure. However, I hope he realises that we have considerably better things upon which to spend our money. Therefore, perhaps I may conclude by saying that it would be quite unacceptable for public funds to be used to compensate unions for costs that may arise where their officials make unlawful calls for industrial action which the union is subsequently obliged to repudiate. The Government cannot justify applying, public money for such a purpose. I hope that noble Lords will appreciate the absolute logic of the position. I also hope that the noble Lord will feel able to withdraw the amendment.
Lord McCarthy: My Lords, I am glad to see that we have managed to get another reason out of the Minister. He is very fecund as regards the reasons given. Indeed, we never receive the same answer twice, but I shall return to that matter later. The noble Lord, Lord Campbell of Alloway, said that there is no possible connection and no similarity between the two aspects of the matter. Of course, in a way, that is what
1254
the Minister now says. However, it is not what he said to my noble friend in Committee when he said that they were square and at one. On that occasion he said that my noble friend was right. That is not what the Government used to say, but it may well be—if my understanding tonight is correct—that they are saying so because they cannot think of anything else to say.
The noble Lord, Lord Campbell of Alloway, then said that the existing scheme includes all manner of expenditure. Of course it does not. The studies which have been carried out on the benefits of the scheme suggest that—
Lord Campbell of Alloway: My Lords, I trust that the noble Lord will forgive my intervention. I must point out to him that I did not say that. However, if I did, I did not mean it. I intended to say that the existing balloting scheme covered only postal expenses.
Lord McCarthy: My Lords, I take the noble Lord's point. However, I shall have to read the report in Hansard tomorrow. I thought that he said the reverse: that it covered all manner of expenses. We now agree that it covers about 50 per cent. and that it does not in fact cover all expenses. That brings me to the third point about what he said. We never said that what we are suggesting in our amendment would cover every aspect of expenditure. If one reads the amendment carefully, one will see that in the third or fourth line when referring to payments it says:
"on the application of a trade union towards expenditure".
I emphasise the word "towards". We are not referring to all expenditure. Indeed the Secretary of State and the certification officer could specify in the scheme introduced what could or could not be paid for. In any event, under the provisions of the amendment nothing would happen until a union had 1,000 members. Therefore, we are not suggesting paying out largesse to all kinds of people.
The noble Lord, Lord Boyd-Carpenter, said that trade unions had got themselves into this mess, that it was their mess and therefore why should the taxpayer pay for it. That is a familiar argument, especially from the noble Lord. We have sat here while one industrial relations Employment Bill after another has been introduced. It seems that everything is the fault of the unions. If you impose all kinds of liabilities on unions which cost them all sorts of money and which create all kinds of discomfort, it is all their fault. Everything is done by the Government and everything which goes wrong is the fault of the trade unions. As I said, that is a very familiar argument. I see that the noble Lord, Lord Boyd-Carpenter, wishes to intervene and I am perfectly happy for him to do so.
Lord Boyd-Carpenter: My Lords, we are not dealing with the generalisations which the noble Lord is making; we are dealing with a very simple case where something has gone wrong. For example, some of the members of the union have done things which the union cannot support and the union is therefore baling itself out in the most sensible and economical

1255
way. It is not a generalised question such as he put; it is precisely whether, when the union has got itself into this particular mess, the taxpayer should pay for it.
Lord McCarthy: My Lords, the point at issue is whether this is in fact a mess. I have no doubt that, in similar circumstances, someone who thought like the noble Lord could be sitting underneath the tumbrels in the French Revolution saying that as they had all got themselves into that mess, they must get themselves out of it. Our position is that the Government have got the trade unions into this mess. Noble Lords opposite may well laugh at that, but that is what we have been saying.
We have been saying—and we shall continue to do so—that this particular clause is a mess. It is impossible for trade unions to remain in this mess. They will be liable—we shall continue to argue this point—to all kinds of legal liabilities as a result of the mess of the Bill. That is why I generalise. We have said it before and the answer is always the same, "It is not our mess; it is your mess".
I come to what the Minister says. He says that he is worried about placing on the taxpayer the burden of unions acting in that irresponsible way. It is more or less the same argument as the one we had from the noble Lord, Lord Boyd-Carpenter. We expect the Minister to say that. It is not an argument at all, but at this stage and at this time of night, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Viscount Long: My Lords, I beg to move that further consideration upon Report be adjourned until 8.10 p.m.
Moved accordingly, and, on Question, Motion agreed to.

Landlord and Tenant (Licensed Premises) Bill
7.10 p.m.
The Lord Privy Seal (Lord Belstead): My Lords, I have it in command from Her Majesty the Queen and His Royal Highness the Prince of Wales to acquaint the House that they, having been informed of the purport of the Landlord and Tenant (Licensed Premises) Bill have consented to place their prerogatives and interests, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
Viscount Ullswater: My Lords, I beg to move that this Bill be now read a third time.
Moved, That the Bill be read a third time.—(Viscount Ullswater.)
Lord Williams of Elvel: My Lords, since there are no amendments it is perhaps appropriate that we say farewell to the Bill in the appropriate manner. It is a somewhat sad little Bill. It has had an eventful passage in another place and in your Lordships' House. It has a narrow purpose, a purpose which could have been expanded in another place and might well have been
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extended in the House had it been possible. It is designed entirely to repeal a provision in the Landlord and Tenant Act 1954. As far as it goes—I place some emphasis on those words—we welcome it. It gives the extra protection to the tenants of licensed premises that the MMC argued in its report should be given. We shall see what happens when the Bill, as amended, returns to another place.
Viscount Ullswater: My Lords, the Bill and the purpose behind it have been debated extensively in your Lordships' House and in another place. It seeks to place tenants of licensed premises on the same footing as other business tenants, as the noble Lord, Lord Williams of Elvel, has said. I am aware that some noble Lords on the Benches opposite wanted to go further in a number of respects and provide for a special class of protection for public house tenants. We have explained our view that that would not be in the long-term interest of the tenancy system. Distortions and the balance of rights of landlords and tenants would undermine the commercial viability of tenancies for landlords. If it were no longer worth while to maintain tenancies, landlords would increasingly look to alternative uses for property.
The matter of compensation has caused some difficulty but we are shortly to consider a further Bill to be introduced by the noble Lord, Lord Williams of Elvel. In the circumstances, I commend the Bill.
On Question, Bill read a third time.
Viscount Ullswater: My Lords, I beg to move that the Bill do now pass.
Moved, That the Bill do now pass.—(Viscount Ullswater.)
On Question, Bill passed, and returned to the Commons with an amendment.

Landlord and Tenant (Licensed Premises) (No. 2) Bill [H.L.]
7.14 p.m.
Lord Williams of Elvel: My Lords, I beg to move that the Bill be now read a second time.
This is a small Bill designed to meet the undertaking that the Government gave on Second Reading of the Bill your Lordships have just passed. It is concerned with the compensation of tenants during the transitional period contained in the Landlord and Tenant (Licensed Premises) Bill.
Clause 1 defines the type of tenant entitled to compensation and is an amendment to Section 37 of the 1954 Act. Clause 2 defines the method of deciding compensation which should be done in negotiation between tenant and landlord and to be decided by a court in default of agreement between the landlord and the tenant. Clause 2(2) defines the transitional period in the same way as the Landlord and Tenant (Licensed Premises) Bill. Clause 3 excludes Scotland and Northern Ireland, and gives a short title and commencement to the Bill.
Moved, That the Bill be now read a second time.—(Lord Williams of Elvel.)
Lord Kimball: My Lords, I do not wish to delay the House at this late hour or at this late stage in the Session. Had the Bill any chance of making progress, there are several relevant arguments that I would wish to deploy. There is no valid argument why the level of compensation for public house tenants should be any greater than that for any other business tenant; that is, six times the rateable value of the tenancy. That is the minimum value only. In practice, most brewery companies have paid more.
What is the value, from the point of view of compensation, of an exceptional tenant who may well enjoy exceptional trade and profits thereby? He can hardly expect to be paid for that good will at a time when he is leaving and taking his skills with him. I should wish to develop those and many other arguments at greater length had the Bill any chance of making any parliamentary progress.
Much more serious is the problem before us tonight. I am certain that the noble Lord, Lord Williams, did not in any way intend to mislead the trade, which is interested in the Bill, and other people who are interested in it by pretending that the Bill could make any progress. Perhaps we may look at the precedents for a moment. The time for Private Members' Bills has expired. After all, that is all the Bill is—it is a Private Member's Bill. There is no more time. There is no precedent for time to be given to a Private Member's Bill after Private Members' time has expired.
There was a case, and the noble Lord may well have looked it up, on 16th February 1956 when, as a result of a pledge given by the late Lord Avon as Prime Minister in the 1955 general election another place was given a four-day debate in government time to come to a conclusion on the late Mr Sidney Silverman's Death Penalty (Abolition) Bill. In 1979 it was suggested that Private Members' time might be extended beyond 4 p.m., as it then was, on a Friday in another place to allow the House to reach a decision on Private Members' Bills. That was one of the factors that cost the Leader of the House his job.
The noble Lord may well have looked up in Hansard the question of Lords amendments to Private Members' Bills. I accept that since 1950 there have been 19 cases where government time in another place, after the Standing Order time has expired, has been given to Lords amendments to Private Members' Bills which have passed all their stages, but that figure is inflated by the deal that is always made by the Government at the time of the dissolution.
For instance, on llth May 1983 it was agreed by all concerned that no fewer than three Private Members' measures, which had already passed their first stages in both Houses, should be allowed to proceed. Those are the only precedents that I can find. They are listed in col. 360 of Hansard of another place of 25th June 1984. There are no precedents for government time to be given to Private Members' Bills and there is no precedent that the noble Lord can quote as to why his Bill should receive any time. He may well say, "When we were in power, government time was given". But look at the muddle the late Mr. Crossman got into
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then. Having started in 1966 to allow time for Private Members' Bills, he rapidly had to give up that concession. This Bill cannot and will not proceed because there is no time for it. I am certain that the noble Lord does not intend to mislead the trade by pretending that the Bill will ever reach the statute book in this Session, because it will not.
7.20 p.m.
Viscount Ullswater: My Lords, I wish to say at the outset that the Government will not oppose the Second Reading of the Bill. We have debated on a number of recent occasions the difficulties experienced by my noble friend Lord Trefgarne in seeking to provide for a transitional period of greater compensation for certain tenants of licensed premises.
With regard to the detail of this Bill, I wish to make two observations. First, the Bill provides that any such additional compensation should be related to the goodwill in the business. When putting forward the Government's view on this point on 22nd March, my noble friend made it clear that we had considered but rejected the idea that goodwill was a suitable basis for determining compensation. It is not a well defined concept, and in the precursor to the Landlord and Tenant Act 1954, had been found to give rise to much dispute and difficulty of interpretation in the courts.
The second issue I wish to draw to your Lordships' attention is that by setting a transitional period which ends in July 1992 we believe that the class of tenants affected by the measure will be so small as to be practically non-existent. I shall try to explain this. Clause 2(1) of the No. 2 Bill limits the entitlement to additional compensation to those whose tenancies are brought within the 1954 Act by virtue of the Landlord and Tenant (Licensed Premises) Bill. With your Lordships' leave, I shall refer to the latter as the No. 1 Bill. Clauses 2(2) of the No. 2 Bill then goes on to say that this compensation will be payable in respect of tenancies that end between the coming into force of the No. 1 Bill and 11th July 1992.
Under Clause 1(1) of the No. 1 Bill, the 1954 Act will only apply during this period to tenancies entered into after 10th July 1989. Earlier tenancy agreements are not affected unless, by Clause 1(2), they are still in existence on 11th July 1992. Thus, for a tenant to benefit from the additional compensation provisions in the No. 2 Bill, his tenancy must both commence and terminate between 10th July 1989 and 11th July 1992. Since the great majority of brewery tenancies are for three or more years we believe that this Bill will have little practical effect. However, these are Committee points. They are not grounds on which the Government would wish to oppose the Second Reading of the Bill.
Lord Williams of Elvel: My Lords, I am grateful to the noble Lord, Lord Kimball, and the noble Viscount, Lord Ullswater, for their comments on my Bill. I forgot to do so, but at the outset I should have congratulated the noble Viscount on his new appointment. He will be leaving these sad little matters of compensation for pub tenants and moving on to higher spheres—no doubt after the dinner break.

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The argument of the noble Lord, Lord Kimball, is familiar, it comes from a familiar source. We need not worry too much about what the Brewers' Society thinks of the question of compensation. The noble Lord, Lord Kimball, was perfectly honest and frank in Committee on the No. 1 Bill. Perhaps I may refer to it in the same way as the noble Viscount. The Brewers' Society does not like this Bill; there is a difference of opinion between it and ourselves. There was also a difference between the Brewers' Society and the Government at one point and it appears that the Brewers' Society has won.
The noble Lord, Lord Kimball, treated us to a discursus on procedure in another place; he is a much greater expert than I on such procedure. I have no comments to make; it would be improper for me to comment on procedures in the other place. I repeat what I said the other day, that for our part—that is on behalf of my noble friends, and having consulted my right honourable and honourable friends—if the Government were to decide to make time for this Bill—and I accept the "if—amended in whatever fashion suits the Government so long as we can agree on the basic form, we will make sure that in another place the Bill has an absolutely fair wind. I can say no fairer than that.
On advice, I have agreed that today we should deal only with the Second Reading of the Bill. It will allow your Lordships to consider over the Summer Recess what points your Lordships might wish to make in Committee. Through the usual channels, it has been agreed that the progress of the Bill in your Lordships' House will be such as to allow it to reach another place by the time the other place reassembles after the Recess. That is a good procedure; it will allow the Government and the noble Lord, Lord Kimball, to study our proposals. They may then come up with any amendments they feel might be appropriate, in the event of the Government deciding to adopt the Bill and make it their own. On that basis I wish to move the Second Reading.
The noble Viscount, Lord Ullswater, said that goodwill was not a well defined concept. I find that proposition difficult to accept. Over 25 years of practice in business I have dealt with goodwill both on an accountancy basis and on other bases. Goodwill is perfectly well understood. Landlords and tenants of these businesses understand very well what we are talking about. There should be no difficulty with the calculation I have in mind.
I disagree with the noble Lord, Lord Kimball, and the noble Viscount; it is not the case that the number of tenants affected will be small. I am advised that the number of tenants will be rather large because this happens at the moment. Tenancies are being revised by landlords in licensed premises and there is a fairly serious problem. The Government would do well to study it.
We cannot go much further than this on Second Reading. I believe the Bill meets the Government's own undertaking. It recognises the problem that both the Government and the Opposition recognised and
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attempts to deal with it. I realise that the drafting may be unsatisfactory. I merely ask the Government to adopt the Bill themselves. If they do not, we will take it through the remaining stages in this House and see whether the Government will adopt it in another place. That is what my party wants to do. I believe I speak for the Benches on my right. That is what we all wish to do and that is what we propose. I commend the Bill to the House.
On Question, Bill read a second time, and committed to a Committee of the whole House.
Viscount Long: My Lords, I beg to move that the House do now adjourn during pleasure until ten minutes past eight.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 7.28 to 8.10 p.m.]

Employment Bill
Consideration of amendments on Report resumed on Clause 6.
Lord McCarthy Lord McCarthy moved Amendment No. 7:
Page 7, line 20, leave out ("six") and insert ("three").
The noble Lord said: My Lords, in moving this amendment I wish to speak also to Amendment No. 8 as I feel these two amendments are essentially complementary. We come now to the problem of a letter which a union receives within a period of six months which alleges that the union is interfering with the performance of a commercial contract. A notice of repudiation is demanded from the union. When this aspect of the Bill was discussed in Committee we moved a number of amendments to limit its impact.
I remind the House of what the clause in its unamended form proposes. As a result of the provisions of the clause, there is a possibility that an action will lie against a union because it has not in some way disavowed an act of its members. However, a union may be imperfectly aware of such an act. The clause proposes that if a union is not able to provide the appropriate notice in the appropriate period of time, it will be at risk. Presumably it is proposed or suggested or assumed that there must be some reason why the employer whose commercial contract has allegedly been interfered with is acting in this way, for example, threatening the union with some form of legal action or trying to persuade the original employer to take action against the works concerned. It is not at all clear to us why this part of the Bill exists, apart from the Government's intention to root out every possible form of liability.
In Committee we tried to limit the impact of this measure on a union. We asked that some evidence should be provided in these cases to show that a union or its members intended to interfere with performance in some way. We said the measure should be limited to circumstances where the union or its members could have foreseen that they were acting in a potentially unlawful way. However, we were told that there was no reason to limit the measure.
We asked whether a union needed to write to all potential employers or other suppliers who might consider that their commercial contract had been interfered with. However, we did not receive a reply to that question. We put down amendments in connection with the phrase "forthwith". We said that phrase was inappropriate and that the union concerned should be given some time to consider the circumstances involved. However, the Minister said at col. 241 of Hansard on 10th July,
"It will then be a very simple matter to confirm that the inducement has been repudiated where that is the position".
We asked what union, if it was certain that it had repudiated the primary action, would need to know whether that had had an effect upon the commercial contracts of the letter writer. Surely a union should be able to inquire into this before it immediately sent out the necessary notice. We were told that such action was not necessary. At col. 242 of Hansard of 10th July the Minister said:
"All the union has to do is confirm "Yes, we repudiate it". By all means, why does the union not confirm that it repudiated action which had nothing to do with it? It does not seem to make much difference so long as the union provides the confirmation".
The noble Lord, Lord Wedderburn, then said,
"Suppose that the union does not believe the letter it receives. Suppose that it thinks that the company is trying it on again Suppose that it thinks "He is a confirmation or repudiation collector … The Minister must take the matter seriously".
I am afraid that the Minister did not take the matter seriously. The Government assume that this letter from outer space will immediately come within a union's knowledge and that it will know what it is about. The Government assume that a union, with all its problems of management and workers' attitudes, can be asked to discover instantly whether repudiation has taken place.
As have failed in various attempts to get the Government to mitigate the consequences of this clause, we have brought forward another suggestion. Our amendment asks for the limit on the period in question to be reduced to three months from six months. At least a union may be able to recall what happened three months ago. We believe that three months is a sufficient period. We ask once again that the word "forthwith" should be left out and that a union should be given two weeks to reply. We consider that in all the circumstances that is not an unreasonable request. I beg to move.
Lord Strathclyde: My Lords, I too wish to speak to Amendments Nos. 7 and 8 to which the noble Lord, Lord McCarthy, has referred. The new Section 15(6A) recognises that there are others besides relevant union members and the employer or employers of any such member who have a legitimate interest in knowing whether a relevant act has been repudiated by a union. This arrangement therefore enables any customers and suppliers who have a commercial contract with an employer to ascertain whether a union has repudiated the inducement of workers of that employer which has resulted in interference with that commercial contract.
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However, new Section 15(6A) also recognises that the interest of any such party is not to be taken as automatic in the same way as, for example, the interest of the employer of members who are the target of the relevant act of inducement to take industrial action. That is why new Section 15(6A) only requires a union to "confirm" its repudiation "on request" from a party to a relevant commercial contract and "within six months".
Amendment No. 7 deals with the question of whether the period should or should not be six months. The noble Lord, Lord McCarthy, has suggested that we should replace the six-month period with a three-month period. It appears that he has accepted the principle behind this clause. I very much welcome that. I have carefully considered his request that we should change the period from six months to three months. I feel that I should not resist this amendment, and therefore I agree to accept it.
Amendment No. 8 is an old friend. We covered this ground quite extensively in Committee when discussing Amendment No. 33. I do not have an awful lot to add to what was said on that occasion. A union is only being asked to confirm something that has already happened. A union is entitled to expect the request to be made in appropriate terms which enable the union to identify the inducement which the customer wishes to know about. Therefore it should be a simple matter to confirm that the inducement has been repudiated where this is the position.
On that matter the noble Lord has failed to produce any convincing argument as to why it would be preferable to fix a standard period of two weeks during which a union could ignore a request provided that it had responded on the final day in place of forthwith. I hope that the noble Lord will therefore agree to withdraw Amendment No. 8.
Lord McCarthy: My Lords, I am extraordinarily pleased. We have made a dent. Far be it from me to disturb the equanimity with which the noble Lord has met our point. He is quite right; three months is perfectly reasonable. I wish that he had said that forthwith was unreasonable and that we could have had two weeks. However, I am prepared to accept what he has said, and I shall not move the amendment.
On Question, amendment agreed to.
[Amendment No. 8 not moved].
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 9.
Leave out Clause 6.
The noble Lord said: My Lords, albeit that there has been a small flash of light in the gloom and darkness of this clause, we still believe that it should not form part of the Bill. Of all the clauses this is the one which removes from organisations of working people the normal rules of law. It is therefore only right that the Government should be given some opportunity further to justify it, although, on previous experience this evening, no doubt on grounds that are internally self-contradictory.
The way in which the Government have justified the clause—and the Minister has followed the same

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path as was followed in another place—has been unsatisfactory. For example, it has frequently been repeated that such a clause is necessary because trade unions are special bodies. As the Minister put it in Committee, unions are appropriate for special treatment.
The noble Lord says, "Hear, hear". It is obvious. Most contractual associations in society are governed by special laws. That applies to partnerships, public companies, private companies, friendly societies, co-operative societies, banks and many others. However, merely to say that they are special does not justify the introduction of a new principle, especially where the new principle departs from what is normally thought to be the core of rules of law which apply to all contractual associations.
It is generally accepted that one begins with the principle that a body of persons should normally be liable in law vicariously in tort to third parties for acts either of employees acting within the course of their employment or of agents acting within their actual or ostensible authority. Some attempt was made to justify the new principles introduced in the 1982 Act on those grounds. The legal immunities on which the Minister and others have tried to justify this clause are quite irrelevant. They have been introduced into our law because British trade unions and organisations of workers do not have positive rights—rights to organise, rights to bargain and rights to strike. None of those is found on the British statute book, as they can be found from France to Sweden and from Italy to Germany. It is juridical illiteracy to believe that British trade unions have ever had any meaningful, major privileges in our law. They have operated since their birth on the margins of legality, dependent upon exceptions from a common law which still sees them unlawful.
We have made clear in these debates that for our part we believe that the time has come for profound review. However, it must be acknowledged that the law worked in that way for six decades. It worked largely because governments—even the predecessors of the party in power opposite—had more comprehension than they have of the nations's need of responsible trade unions. On the matter before us in Clause 6, the Government, in the Industrial Relations Act 1971, which many of us opposed vigorously, did not enlarge and distort the basic rules of vicarious liability which were applied to trade unions in the famous case of Heatons Transport in your Lordship's Judicial Committee in 1973.
In 1982 this Government set out on the path of jettisoning the normal rules and making unions liable for officials who would not be regarded ordinarily as agents, within the compass of their ostensible authority. At that time, as a matter of interest, the Government did not justify the extension of liability by any great reference to unofficial action. Looking again at the debates of 1982 we find very little discussion of unofficial action. On such information as the Government have given us from their internal records—which is all we have since figures stopped in
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1981—it does not appear that the amount of unofficial action is greater today than it was in 1982. Indeed, there are grounds for thinking the opposite may be true.
Mr. Tebbit, the Secretary of State, said at Second Reading on 8th February 1982 at col. 746 of Commons Hansard that the new code on vicarious liability of unions was being introduced,
"not only to help the courts but also so that trade unions and employers would know where they stand".
That is a useful benchmark from which to look back across the debates of earlier amendments tonight. Do we know where we stand with this law? Do we know what "material time" is? Do we know what being a "member" of "a group" is? Of course we do not. It is vague and one is forced to conclude from previous debates that the clause is deliberately vague in order to extend the range of liability for trade unions in a civil liability as wide as can possibly be imagined.
The Government have widened massively, first, the liability in terms of the persons for whom the union may be liable. It includes not merely all of its officials. I suppose that one could make some argument for that, although I am always disposed to argue that it is unfair to extend liability of the whole union to branch officials. However, it goes much further. Under this Bill the union is at risk from the act of an unknown person, some mysterious stranger acting unilaterally after the gathering of an unknown, shadowy group to which the official, at a material time, at some point, entered and became, for a few moments, a member.
In addition, the procedure for repudiation, which was not easy under the 1982 provisions, has been turned into a maze of byzantine complexity with the obvious intention of creating maximum risk—now, one must say, as a footnote, with the exception of the reduction of six months to three months.
A union must now be told that if it thinks that an official has done something—and it may not know, it is more likely to be a hypothesis—"you must write to the employer; you must write to each individual member; you must make sure that you use the precise statutory words which the Government have written for your pen; you must make sure that no senior officer behaves in a manner inconsistent with the repudiation; and then you must wait for three months to see whether any unknown employer writes to complain about the performance of his commercial contracts". I wonder whether the noble Lord has ever been in a trade union office and considered what operating that type of machinery really means.
What other justification is there, apart from the noble Lord's zeal behind all of the clauses? There is the argument that he advanced in Committee that it is necessary to combat unofficial action and trade union acquiescence in it. The second point has not been properly answered by us. My answer is that it is quite incorrect under the law as it stands today that trade union acquiescence cannot make the union liable for acts of shop stewards of which it has knowledge. There are a number of cases which show that any nod or wink or acquiescence in which an implied authority or agreement can be built can make the union liable.
Where are the figures to show that there is a new flood of unofficial action which requires a departure from rules of ordinary law to the degree that this Bill vouchsafes? The containment of unofficial action in sensible industrial relations policies means better grievance procedures and not unfair union liabilities.
There is a final point which was not made in Committee. Now that we look at the clause as a whole we must understand that it is so. The Government are introducing a measure which is not only an unfair extension of vicarious liability but an extension which is arbitrary in a further respect.
The new code of liability for trade unions has never covered liability in every tort. Like the 1982 Act it applies only to torts covered by Section 13 of the 1974 Act or, to put it positively, by the economic torts of inducing breach of contract and intimidation by threat to break a contract. Noble Lords may ask, "Can there be any other civil liability or torts relevant in industrial relations?" Yes, there can. For example, in a number of recent cases the liability of a union for pickets, which was established in some instances and not in others, has been resolved by way of ordinary common law liability in the tort of nuisance. But for that liability for nuisance the ordinary common law rules of agency and vicarious liability apply because since 1982 the statutory provisions have never been extended that far.
So there is a massive and arbitrary extension of something that is built upon a rather arbitrary distinction. The Minister need not reply by saying that I want the extension to cover the law of nuisance. Of course I do not. Nevertheless it is quite clear that this is a special extension to cover a special liability for trade unions simply because the Government say that they are special.
The layman will not put it in that way. He will see the matter a little more clearly than the lawyers see it. Once he is used to it, he will argue that what they are doing is to say, "If you can't bleed the unions by damages and sequestrations, then bleed them by new rules on liability and repudiation". He will be right. It is ridiculous to believe that these new liabilities in what is a new combination Act are designed for anything except the purpose of rendering trade unions liable in civil law, as often as possible for as much as possible and for as many people as possible.
That is the principle. If the Minister does not understand his Bill to mean that, we can only suggest that he reads it again carefully before Third Reading. The only principle, if it can be dignified with the title of a principle, on which Clause 6 rests is that one. That is the reason that it should be deleted from the Bill. I beg to move.
8.30 p.m.
Lord Boyd-Carpenter: My Lords, we have just been treated to a superb display of beautifully phrased and largely irrelevant rhetoric. I should like to bring noble Lords back to Clause 6, which seems to me to be necessary in order to make quite sure that trade unions carry responsibility for the acts of their officials.
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The noble Lord, Lord Wedderburn, brushed aside the privileged position of trade unions—the provision of immunity in respect of industrial action, which no other organisation in this country enjoys—and therefore appeared to fail to understand that in return for that privilege there must be certain obligations. Those obligations are clearly set out in the clause.
I shall not seek to emulate the noble Lord's eloquence or the length of his observations. It seems to me that this clause has been very fairly produced to prevent abuses and weaknesses in the law which have been demonstrable in recent years and to enable the position of the unions to be kept fair and sensible. They will still be able to enjoy their immunities where they act within the provisions of the law; but where they indulge in various devices (as some have done in recent years) it is to be hoped that Clause 6 will catch them. Therefore I hope that Clause 6 will stand part of the Bill.
Lord Rochester: My Lords, at risk of repetition I must reaffirm briefly that in our view Clause 6 will do nothing positively to improve this country's industrial relations and performance. On the contrary, I fear that it will create more difficulties for management by prolonging procedures established for the purpose of resolving disputes without recourse to industrial action. In turn that may provoke employees to take more unofficial action rather than less.
The Government's aim in introducing this clause is clearly to curb action of that kind. My fear is that it may have the reverse effect in that unofficial action will escalate into major official disputes legitimised by a ballot. In short, unlike the noble Lord, Lord Boyd-Carpenter, we believe that relations between management and employees, despite the concession made by the Minister on Amendment No. 7, would be better without this clause.
Lord Strathclyde: My Lords, I too will follow the example of my noble friend Lord Boyd-Carpenter and stick to Clause 6. The essential purpose of this clause is to require unions to be responsible for certain acts of their officials and thereby curb the free rein which some officials currently have to call for unofficial action.
Making unions themselves liable for relevant civil proceedings was the main thrust and purpose of Section 15 of the 1982 Act. But Section 15 required us to address another aspect of the law. Once, like any other person or organisation, unions could be sued for any tortious act for which there was no statutory immunity. The problem arose of just when and in what circumstances a union was to be held responsible for the acts of its officers and officials.
There were and are sound reasons for not deciding that by relying on common law principles of vicarious liability. First, the law has long recognised that special measures may be needed to regulate union affairs in recognition of the unique purposes of unions, which are quite unlike those of, for example, companies, sporting clubs or even political parties.
Secondly, experience during the 1970s—and in particular the court cases of Heatons Transport v.

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TGWU and General Aviation Services v. TGWU—showed that reliance on imprecise concepts such as "implied authority" and "custom and practice" created enormous scope for uncertainty and confusion for all concerned.
Section 15 of the 1982 Act therefore laid down in specific detail the circumstances in which a union was to be held liable for acts of its members and officials in relation to the industrial torts for which statutory immunity was and is potentially available. It made unions liable for relevant acts of authorisation or endorsement by employed officials of the union down to the level of the local paid official or by any committee to which an employed official regularly reported except where the union's rules clearly prevented those officials or committees doing any of the acts in question.
This clause will ensure that, where industrial action which was called by an official of the union (including a shop steward or any other lay official) comes or is brought to the knowledge of the union's executive, president or general secretary, the union will be able to dissociate itself from that inducement by repudiating it as the clause provides. This will ensure that the union's members, whom it is reasonable for the union to identify as those who have been called to take industrial action, will know where the union stands and whether it supports industrial action or not. It is surely right that members should know that.
It is also right, as the clause provides, that a union can avoid liability, by repudiation, for what certain officials have done. It is absolutely right that a union should be responsible when any of its officials calls or threatens to call for industrial action which would interfere with contracts. The time is now right to amend the present provisions of Section 15 of the 1982 Act which are relevant to union liability for such acts.
It is completely spurious to argue that a union's liability for such acts ought not to be subject to statutory provisions. First, the basic immunity for such acts is itself a statutory creation. Secondly, unions are bodies which the law has long recognised as appropriate for special treatment. Thirdly, there is no valid analogy with other kinds of body or association since their purposes are quite different from those of trade unions.
The noble Lord, Lord Rochester, said that this clause would not improve industrial relations. I cannot answer that assertion. We shall have to see exactly how it works out in practice. However, I am convinced that the unions will not allow their officials to drag members into unofficial action in the way in which they may have done before because it will cost them. Unofficial action is a problem that cannot be ignored.
The noble Lord, Lord Wedderburn, made an interesting point. He asked: "Where is all this unofficial action? What is the problem?" If there is no unofficial action then there will be no need to repudiate, and the provisions of this clause will not come into force. Noble Lords opposite say that
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unofficial action does not happen. If it does not happen what on earth are they worrying about? Clause 6 is designed to make unions properly responsible for acts of their lay officials. That is why it is both appropriate and necessary. I commend the clause to the House. I hope that the House will reject the amendment.
Lord Wedderburn of Charlton: My Lords, I thank the Minister for that reply. He may be surprised that I say that. I thank him especially for his last remark. It always seems to me the last refuge of certain lines of argument to say that if a certain state of affairs exists one needs this; and if a certain state of affairs does not exist one still needs it because one would not have to worry about that. That is what he said about the Bill. If there is unofficial action, all right; if there is no unofficial action, do not worry. It is up to the Minister when such enormous deviations from normal principles are involved to prove his case and to show us the problem that requires this extraordinary deviation from a basic, civilised principle. It is a civilised principle to which one is not normally liable under these circumstances. The Minister would not be happy to be civilly liable for someone about whom he knew nothing and had never heard of simply because he attended a meeting when he did not realise the consequences.
The Minister made an important point. If I missed it at Committee, I apologise, but I do not think it has been made in quite this way before. He says that the real reason that one cannot use common law concepts is illustrated by the Heatons case of 1973 and the General Aviation Services which was not reported until some years later but occurred a year or so after. In the one case the Transport and General Workers Union was liable for the acts of its shop stewards on the basis of implied authority. In the second case it was not liable on very similar facts but in a different industrial situation at London Airport, because it was held that the shop stewards in that case did not have implied authority.
I know that such facts relate to the Industrial Relations Act 1971. It is the mark of a reasonable system of law that one judges liability on something like normal principles—it may be with adaptation. One case goes one way, and another goes the other way. But that situation is not enough for this Government because that is uncertainty. What the Minister means by "uncertainty" is a union escaping liability. That is why these clauses are being introduced. The provision goes with Clause 9 which is even worse and should not be part of the Bill.
On Question, amendment negatived.
8.45 p.m.
Clause 7 [Calling of industrial action with support of ballot]:
Baroness Turner of Camden Baroness Turner of Camden moved Amendment No. 10:
Page 8, line 16, at end insert:
("(48) Where a ballot satisfies the requirements of this section and of section 7(2) of the Employment Act 1990 as being in support of industrial action, it shall not cease to do so by reason only that the union induces employees to take

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part in the industrial action who have entered the employment of the employer party to the dispute at a time subsequent to the date of the ballot if those employees have a factor in common, within the meaning of subsection (1B) (b) of this section, with some or all of the workers who were entitled to vote in the ballot.").
The noble Baroness said: My Lords, the amendment seeks to come to terms with what happens in practice rather than in theory in industrial relations. The Government seem to want things nice and tidy in their employment legislation. However, life is not like that, and neither are the situations encountered in industrial and commercial life.
The amendment seeks to provide immunity for a union in a situation in which a ballot has taken place entirely in accordance with the provisions of legislation and the vote has been in favour of dispute action. However, there may well have been a shifting, changing workforce. Other employees may have been taken on after the ballot has occurred and before the strike decision is implemented. As we know, under the present legislation unions have 28 days in which to implement a decision—not counting the amendment agreed in Committee which we call the Campbell amendment.
Such new employees may possess a factor in common with those who have been balloted and who are also about to start dispute action. The individuals concerned may well wish to join the dispute. In fact their terms and conditions may well be affected by the outcome since they share the common factor to which I have already referred with those already balloted. It would be absurd for the unions to have to ballot the entire workforce again to include one or two individuals, or perhaps a slightly larger group.
Nor is a supplementary ballot a practical or a legal possibility. In fact by taking on groups of people after a ballot, an employer could effectively interfere with a dispute and undermine the right to withdraw labour. At the same time the individuals concerned would probably have little alternative but to join the dispute, if for no other reason than that the rest of the workforce might not be there anyway. In their absence there might not be anything to do. If it was then held that the union had induced them to strike without their having been in the ballot, the union could well risk losing its immunity.
I do not believe that that was the original intention when the legislation was introduced. I hope therefore that the Government will be disposed to look favourably upon the proposition contained within the amendment. I beg to move.
Lord Strathclyde: My Lords, we discussed this at Committee stage. The amendment contains a new element which seeks to limit in a particular way those who can lawfully be called upon to take part in action which was balloted before they started to work for the relevant employer.
However, it follows from the assurance that there is in fact no problem which needs to be addressed by any such amendment, that there is no need for any such limitation either. If there were, I have to say that there
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appears to be significant technical difficulties in attempting to draw the distinction that the amendment proposes.
The new variation included in this amendment does not therefore make it any more or less acceptable in the Government's view. This amendment is simply unnecessary.
I am aware that the amendment has been prompted by the words of the noble and learned Lord, Lord Donaldson, in his judgment in the case of Post Office v. Union of Communication Workers in which he said:
"The union clearly cannot identify and ballot those of its members who are not employees of the employer at the time of the ballot, but who will, in the event, join the workforce at a later date".
The Government agree that it would not be "reasonable" for a union to be expected to ballot members who had not been employed by the relevant employer at the time of the ballot when it had no way of knowing it would later call them to take the action to which this ballot relates.
Section 11(1) of the Trade Union Act 1984 requires the union to accord entitlement to vote:
"To all those members of the trade union who it is reasonable at the time of the ballot for the union to believe will be induced to take part…in the strike or other industrial action."
The significant words are "at the time of the ballot". They limit the relevant test, and remove the potential problem which appears to have generated this amendment.
The noble and learned Lord, Lord Donaldson, said that this point "would repay consideration". That was considered in the light of the noble and learned Lord's remarks. It has been considered further in the light of amendments tabled by noble Lords opposite. Our conclusion is firm. There is no problem here. I hope that the noble Baroness will withdraw the amendment.
Lord Wedderburn of Charlton: My Lords, before the noble Lord sits down, will he accept that of course we understand that there is no problem about balloting persons who are not employees at the time of the ballot. That was one part of the judgment that he quoted. The problem arises from the other argument. The noble and learned Lord the Master of the Rolls adverted to it in a rather longer passage but it is in this context: that if the union then calls out on strike those who were not employees at the time of the ballot it will be calling out employees who have not voted in the ballot. It is that argument which can be used to invalidate an otherwise perfectly satisfactory ballot. That is why the noble and learned Lord the Master of the Rolls said that if it were just a matter of de minimis—that is, if one had called just one worker out—perhaps the court would overlook it (although with great respect to the noble and learned Lord I am not sure he is strictly entitled to do so). The problem may arise with more than de minimis, with half a dozen workers who were not employees at the time but were called out.
Does the noble Lord tell us that the Government do not care that such a ballot and stoppage might become illegal merely because a group of workers were called

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out who were not employees at the time but were bona fide members of the union and joined in the stoppage? Is that the Minister's posture?
Lord Strathclyde: As I understand it, so long as the industrial action is the same as that which was voted on at the time of the ballot, there is no problem. We have maintained throughout the debates on the amendment, and the amendment that we had at Committee, that we do not see that there is a problem. We regard these amendments as being unnecessary.
Baroness Turner of Camden: My Lords, I cannot add much to what was said by my noble friend Lord Wedderburn. After consideration of what was said by the noble and learned Lord, Lord Donaldson, in the case in question, and the way in which I put the amendment in terms in which it was likely to occur in genuine industrial situations, I am surprised that the Government do not feel that they can do anything about the amendment. They have not even said that they will consider it again and think about the matter between now and Third Reading.
There is little point in pressing the matter to a Division at this stage of the proceedings and at this hour of the night. I shall withdraw the amendment but I am disappointed that the Government have acted in such an unconstructive way in response to the submissions made from this side of the House. I shall read what has been said in Hansard tomorrow but I am disappointed with the response. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 11:
Page 8, line 22, leave out ("call") and insert ("instruction or inducement").
The noble Lord said: My Lords, Clause 7 rewrites the conditions on which a strike ballot is effective. Two of those conditions are the same as are provided under the 1988 Act which amended the 1984 Act. They are that there must not be any authorisation or endorsement by the union of the industrial action before the ballot. However, a new element is introduced in subsection (3) (a). It states that:
"there must have been no call by the trade union to take part or continue to take part in industrial action to which the ballot relates … before the date of the ballot".
In Committee on 12th July suggestions were made that the third provision, the call, was contained in the previous law. Noble Lords who made that suggestion have now had time to see that none of the provisions of the 1984 or 1988 Acts contains the ban on a call. The previous call was limited to a ban on authorising or endorsing industrial action. The Minister was rather more careful when he said that the new provisions:
"do no more than restate requirements in the present law to take account of the substantive new requirements proposed by subsections (1) and (2) of the clause".—[Official Report, 12/7/90; col. 449.]
The importance of the addition lies in the fact that the courts must give some meaning to the third word. It is a basic principle of statutory interpretation that if
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there are two words and a third word is added by the legislature it must mean something different from the other two. Therefore, a call is not an authorisation or an endorsement. Obviously it is something less than an authorisation, otherwise there would be no need for the word.
The first question is: as the Government already have a ban on authorisations before the ballot, what is the separate ban on calls? That is to say, it must be a call which is not an authorisation otherwise the word is not needed. What kind of statement do the Government have in mind? Can they give an example? Looking at the debate in Committee I could not find one. The Minister insisted that there was a difference between a call and a recommendation to vote in the ballot. In theory that is correct. However, when one thinks a little further about what happens in real life one sees that an argument from the union urging its members to vote yes because industrial action is desirable can easily be understood by the courts to be a call for the action.
I looked at the Concise Oxford Dictionary and found that a call, which is normally a shout or a cry, is also defined as being a summons, an invitation or a bidding. I appreciate that that does not settle the issue but an invitation, or a strong invitation, might readily be risked by a union in its communications to its members as regards the argument which goes on in real life. The union may say, "We have a dispute with a company which has acted in a preposterous way and if there is a majority in the ballot we mean to have industrial action".
That introduces a new point that I should like the Minister to answer. I am genuinely anxious about the issue and the Minister may think of my point as a possible amendment. The union may say, "If there is a majority in the ballot we mean to have industrial action". The Bill does not provide for an "unconditional call" but for a "call". One might say, "If a union says, 'If you vote yes and we get a majority we are not going to think about it again, we shall have industrial action', is that a call?". It is arguable that it is.
A strike ballot is not organised until a dispute comes into existence or is on the horizon. It is not an academic exercise but is often organised in the midst of hot feelings on both sides of the dispute. Statements are made from which the courts could easily imply some kind of call or conditional call just as they could easily imply a threat in statements which, on their face, do not expressly threaten, as was said by the noble and learned Lord, Lord Devlin, in the case of Rookes v. Barnard in 1964. As regards the union, we have recently debated Clause 6 and we must remember that it is any statement made by any shop steward, official or a range of other persons for which the union will be liable.
Let us remember a final point. We must test such sections by the test of interlocutory proceedings. There the court will grant an interlocutory injunction if the plaintiff, normally the employer, can show not that he has a clear case but that he has an arguable

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case. As Lord Diplock put it in 1975 in the authority to which everyone must now turn, he must show that his:
"claim is not frivolous or vexatious; in other words that there is a serious question to be tried".
If one puts all that together and thinks of real life statements the idea that the union can never fall foul of some kind of implied call in the literature before the ballot, appears to be stretching it a bit. One must muster unaccustomed intellectual reserves to believe that the Government can possibly believe such a thing. At the lowest it could be argued that in many cases a union's statements to its members to support a policy of industrial action and vote yes in the ballot could easily be interpreted to contain impliedly or expressly a call to take part in the action, perhaps even conditionally.
If any part of that argument is right surely some amendment should be made to the Bill. As a matter of fact, our amendment goes further than we should normally wish. We say that there must be no instruction. That is right but I am not sure that it would not always imply authorisation. Secondly, we say that there must be no inducement. That goes a long way but not so far as any call.
I hope that the Government will look at the amendment and, with great respect to the Minister, not say what they have said all along: "We are right and you are wrong and that's an end of it". If they want to take that position they may, but surely they can see that there is a point which in practical terms is most important. I beg to move.
Lord Strathclyde: My Lords, as I said in Committee, the Government have absolute confidence that the courts have not in the past confused the two activities of holding a ballot and calling for industrial action. We have equal confidence that the courts will not fall into any such error in the future. It follows that there is no question of a court holding that a recommendation by a union that its members should vote yes in response to a question or questions in an industrial action ballot amounts to a call by the union to take part or continue to take part in industrial action.
I should add to the remarks that I made in Committee and respond in particular to what was said by the noble Lord, Lord Wedderburn, at col. 450 of Hansard about the possible virtues of some kind of avoidance of doubt provision on this matter.
It is in general a bad principle to encumber legislation with unnecessary provisions. Moreover, in this specific case adoption of the amendment would imply that in circumstances other than those to which the provisions of Clause 7 and related legislation are relevant a simple recommendation to vote yes in an industrial action ballot was to be regarded as equivalent to a call to take industrial action. This could clearly give rise to confusion. The amendment is, of course, not couched in terms of avoidance of doubt. In fact it proposes a substantive change to the way in which the provisions of Clause 7, as proposed, would operate.
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It is clear enough—as a matter of common English usage—what is to be taken as "a call". However the amendment proposes to replace the word "call" in Clause 7(3)(a) by two words; namely, "instruction" or "inducement". Clearly, "calling" for industrial action would include "inducing" industrial action. However, in contrast to the formulation proposed by the amendment the term "call" would quite properly, also cover other activities, such as "endorsing" industrial action; and might, or might not, involve "an instruction".
Indeed, noble Lords opposite have made the point on more than one occasion that unions often recommend taking industrial action rather than giving instructions to take such action. I am conscious of the fact that the noble Lord, Lord McCarthy, I believe, accused the Government of believing that unions exercised some sort of puppetmaster-like control over their members' actions.
The modification proposed by the amendment could actually limit the natural interpretation that would otherwise be placed on the meaning of the word "call" for the purposes of Clause 7. It would therefore undermine the intended effects of the clause.
If a union says, "We will call industrial action if', then, whatever it decides, that is an announcement of intent. It is not a call. An invitation or a bidding to vote yes in a ballot is one thing. It is not a call to take industrial action. A union call to take industrial action can only lawfully be made in support of a proper secret ballot.
Lord McCarthy: My Lords, I thought that the noble Lord said that an invitation was not a call. That is not what the Concise Oxford Dictionary states. One definition of "call" is "invitation". According to the dictionary an "invitation" is the same as a "call".
Lord Strathclyde: My Lords, I am not aware that the courts always take the line of the Concise Oxford Dictionary. It will be up to the courts to decide. This is our interpretation and we stand by it. As I said in Committee, I appreciate anxieties that a union should not be prevented from making a recommendation to its members as to how to vote in a properly conducted ballot on industrial action.
However, I assure the noble Lord that his fears as regards the provision in Clause 7 are groundless. His amendment would not be compatible with the intended effects of the clause because it places unnecessary limitations on the interpretation of the word "call" for those purposes. I express my hope, in the light of that assurance, which is a very genuine assurance from the Government, that the noble Lord will withdraw his amendment.
9 p.m.
Lord Wedderburn of Charlton: My Lords, that is very disappointing. We shall have to withdraw the amendment, but it is a very serious matter. First, the noble Lord says that a conditional call is not included within the phrase because it is an announcement of intent. That is not necessarily a reasoning which would convince a court. I do not know where that leaves us. A conditional call is quite uncertain.

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Secondly, the noble Lord tells us that "call" includes many other definitions. He says that it includes an inducement; that is correct. He says that it includes an endorsement; that is correct. He says that it includes what might be an instruction; that is correct. I take it that he believes it to include an authorisation; that is correct. Therefore, if there is included an inducement, an endorsement, an instruction and an authorisation, which would be the case if our amendment is accepted, why is there need also to include the word "call"? That needs to be included because it is something else and the Government are trying to upset the validity of strike ballots. The longer this Report stage goes on, the more one realises that the Government's argument does not support their conclusion. That can lead only to one conclusion; namely, that they want to subvert so far as they can the operation of effective trade unions and, in this case, strike ballots. It is just like the last amendment on which the noble Lord answered something which was not put to him.
A new word has been introduced for which no argument has been provided. When that is challenged, we are given no clear reason for its inclusion. I hope that the Minister will consider again this matter on Third Reading. The Government should not put laws before the country for which no argument has been made. However, at present I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 9 [Dismissal of those taking part in unofficial industrial action]:
Baroness Turner of Camden Baroness Turner of Camden moved Amendment No. 12:
Page 9, line 42, at end insert ("and if the employer had done what was reasonably practicable to inform him that he might be so dismissed at a time which gave him a reasonable opportunity to cease taking part in the unofficial strike or other unofficial industrial action.").
The noble Baroness said: My Lords, we now come to Clause 9. I recall describing it in Committee—when, in fact, it was Clause 8—as the most unfair clause in what I regarded as a thoroughly unfair and nasty little Bill. The clause removes from individuals designated as unofficial strikers, or participants in other unofficial industrial action short of a strike, the right to go to an industrial tribunal with a plea of unfair dismissal if they are dismissed.
It is quite wrong that anyone should be dismissed without the right of appeal. I believe that in Committee a number of noble Lords opposite misunderstood what we were trying to do when we moved a similar amendment. There was much talk of the inability of employers to dismiss for industrial misconduct should our amendment be accepted. However, that is not the issue. The issue is that for no other offence except that of being regarded as an unofficial striker or a participant in unofficial action it will be possible for anyone to be dismissed without the right of appeal to an industrial tribunal. Even someone dismissed for alleged misconduct would still have the right of access to a tribunal provided that he
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or she had been in employment long enough. However, the unofficial striker will not have that right. Moreover, for the first time the employer will be able to sort out from the workforce those whom he regards as culpable and get rid of them. There is a very real difference between the right to dismiss all or none and the right to sort out people. The latter is a clear invitation to victimisation.
The amendment states that before that can happen, the employer should at least warn the individuals concerned. We supported an amendment in Committee which obviously was regarded as too broad and sweeping although we did not believe that it was. We have now tabled a rather more precise amendment. We are saying that the employer must do what is reasonably practicable to inform the individual that he might be so dismissed and to give the individual an opportunity to cease taking part in the unofficial action. Surely that is in accordance with natural justice. I do not believe that there can be any objection to the amendment. I await with interest the Government's response. I beg to move.
Lord Boyd-Carpenter: My Lords, I hope that my noble friend will not accept the amendment. We are dealing with a case of unofficial action, and any responsible individual taking part in it must and should know that by taking part he or she is risking his or her employment. The idea that in addition that individual should be entitled to specific warning from his or her employer is excessive. Any sensible person who, having entered into a contract of employment, is working and suddenly ceases to work because of unofficial trade union or industrial action, must know perfectly well that that is putting his or her employment at risk. To provide an additional time holdup and safeguard of having to give specific warning that what he or she is doing is wrong is wholly unnecessary.
If someone is doing something which violates the duties under his contract of employment, he is not entitled to a specific warning as to its consequences. He knows that perfectly well, and the noble Baroness knows that perfectly well.
Lord Rochester: My Lords, contrary to the view expressed by the noble Lord, Lord Boyd-Carpenter, I strongly support the amendment. In Committee I moved an amendment to the effect that an employer should not be permitted to single out for dismissal an employee who was taking part in unofficial industrial action without first giving that individual due warning of the consequences of continuing that action. I further said that in my view it was an offence against natural justice that such a dismissal could take place under circumstances in which the individual would have no right to claim unfair dismissal and the employer would not have to justify his action before an industrial tribunal.
I adhere to that view. It is unreasonable that someone summarily dismissed for gross misconduct can take his case before an independent arbiter, but that a person taking part in unofficial action—perhaps on grounds of perceived danger to health or safety—should be denied the same right.

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In Committee the noble Lord, Lord Strathclyde, claimed that it was a sufficient defence of the Government's position that under subsection (4) of this clause industrial action would not be treated as unofficial before the end of the next working day after the day on which the union repudiated the action. We shall come to that subsection shortly. Meanwhile, I regard the so-called period of grace for which it provides as an entirely separate matter.
The amendment proposes as a simple tenet of good management and elementary fair play that before an employee is dismissed for taking part in unofficial action that employee should at least be given a reasonable opportunity to cease taking that action.
Baroness Seear: My Lords, perhaps I may add to that and ask the Minister to justify denying people in this category the right of appeal to an industrial tribunal. Is there any other offence, given that the time considerations have been met, where that right is denied?
It is quite extraordinary that a man can hit his supervisor over the head knocking him out, and can have a claim for unfair dismissal if he is sacked. But if he takes part in an unofficial strike he cannot make that claim. That is so even if he is alleged to have taken part in an unofficial strike; we do not know that he has; he may have been off that day with a headache or it may have been his twin brother who was on strike. There may be all sorts of instances in which, unless he can make his case, a man could be wrongly accused. The burden of proof is on the Government to show why in this one instance the man is not allowed to go before the tribunal and claim unfair dismissal.
Lord Strathclyde: My Lords, in dealing with this clause we have to put forward one proposition. That is, one either believes in selective dismissal for unofficial action or one does not. It is as fundamental and basic as that. However, I shall seek to justify the Government's position in greater detail, and I apology se that it will be at length because it is an important principle within the clause. It goes through all the amendments that we will shortly be discussing.
Perhaps I may briefly reply to the noble Baroness, Lady Seear, who asked for the justification and whether there is any other example where people can be sacked without notice. Yes, there is. According to current law, if one strikes or takes part in unofficial action one can be sacked immediately. It is as simple as that.
Baroness Seear: My Lords, I did not ask that. I asked for any case in which, having been sacked, one had no right to go before a tribunal and claim unfair dismissal. That was my question.
9.15 p.m.
Lord Strathclyde: My Lords, the same answer applies. There is no right to go before an industrial tribunal if the employer sacked everybody for going on strike. I am sorry, but that is the case.
This amendment relates to the new Section 62A which Clause 8(1) proposes should be added to the 1978 Employment Protection (Consolidation) Act. It returns to issues which were discussed by your
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Lordships in Committee. I think it would be helpful if I explain again the fundamental rationale for the proposed new section. The Government believe that the time has come to limit the scope which the present law allows for unofficial industrial action. The new Section 62A is part of a package of measures to deter and discourage such action. Its provisions will remove tribunals' jurisdiction to determine the fairness of selective dismissal of any employee if that dismissal takes place while the employee is taking part in an unofficial strike or other unofficial industrial action.
Your Lordships will recall that the present law removes tribunals' jurisdiction to consider the fairness of any dismissal if the employer has dismissed all of those taking industrial action at the same establishment on the same day. Where such dismissals have taken place the loss of the right to claim unfair dismissal is automatic; that is to say, in such circumstances the tribunal does not have to consider any other aspect of the dismissal, such as whether the employer's conduct was otherwise reasonable.
We believe it is anomalous to leave an employer faced with unofficial action with no choice, if he wishes to avoid claims of unfair dismissal, between dismissing all his employees taking such action or dismissing none of them. Amendment No. 12 seeks to modify the provisions of the proposed new Section 62A by making it necessary for an employer to do what is reasonably practicable to inform an employee taking unofficial action of his liability to selective dismissal and to do this in a manner which gives the employee a reasonable opportunity to cease taking the action and to return to work. It may be helpful if I confirm at the outset that there is presently no provision in the Bill which requires that an employee taking unofficial action should be given any sort of notice about such liability.
Had the Government been trying to create some notice or warning arrangements, we would have gone about the matter in quite a different way from that currently contained in Clause 6 and in Clause 9. The fact is that we had no such intention and I hope I shall be able to satisfy your Lordships why any such provisions, including those proposed by this amendment, would be quite unjustifiable.
Any employee who chooses to take industrial action—and it is always a choice—knows that he puts his job at risk. That could happen because his action jeopardises the business in which he works or it could happen because his employer decides that such behaviour is unacceptable. As the present law stands and as it will stand after the Bill, no employee is under any sort of obligation to give his employer notice before embarking on any industrial action. Indeed, the courts are prevented by statute from ordering any employee to honour his contract of employment by returning to work or resume normal working. For the law to create a one-sided obligation on the employer such as the amendment proposes therefore offends against equity.
In practical terms, we ought to remember that employees who are union members and who embark on official action which is not preceded by a proper

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ballot, or which it may for some other reason be unlawful for their union to organise, will know that there must be a good chance that the union may have to repudiate in order to protect itself from legal proceedings, thus rendering the action unofficial and the employees liable to selective dismissal. In such circumstances, where they become liable to selective dismissal, the employees will have made a choice to go ahead knowing that they faced this risk. It then becomes illogical for the law to afford them some special protection against the potential consequences of their action.
Moreover, employees taking official action are liable to non-selective dismissal under the present law. That law is in this respect the same as it was when enacted by the last Labour Government. They saw no need for special notice or warning arrangements—I suggest for very much the same reasons which I am now describing to your Lordships.
Other varieties of unofficial action—for example, action taken by union members without any call by any official—are particularly irresponsible. Accordingly, it is right that those involved should be at risk of selective dismissal from the outset, without any sort of special protection in terms of notice such as this amendment proposes.
The Government believe that these are powerful arguments of principle and are relevant considerations in terms of practical realities. They explain why the provisions of the new Section 62A are appropriate and they explain why the amendment would defeat their purpose. I should add once again that the Government do not believe that if these provisions become part of our law we are going to see numerous cases of selective dismissal while taking unofficial action. We hope that there will be less unofficial action; and it follows that in such circumstances there would rarely be cases where employers felt that they had no option but to make selective dismissals. However, where that course is felt to be appropriate, employers' ability to make use of the law to protect the interests of their business and the interests of other actual or potential employers whose jobs may be at risk from unofficial action should not be constrained in the ways proposed by the amendment.
I hope that I have set at ease the minds of the noble Baroness, Lady Seear, and the noble Lord, Lord Rochester. I do not suppose that for one moment I have convinced the noble Lord, Lord Wedderburn, and the noble Baroness, Lady Turner, because they are fundamentally opposed to any legal action which will stop strikes. That is the basis of their position. However, I hope that if the amendment is pressed to a Division your Lordships will reject it.
Baroness Seear: My Lords, before the Minister sits down I ask him to reflect again on the answer that he gave me. He said that the law already allows for dismissal without appeal to an industrial tribunal in a case which involves non-selective dismissal of strikers and in which the whole labour force is dismissed. That does not answer my point. The point I made is that there is a world of difference between dismissing the
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entire labour force and dismissing a selected person who, as I have argued, might be the wrong person. It cannot be the wrong person if the whole labour force is dismissed. However, if you dismiss a selected person, as I said before, he might have been at home with a headache or it might have been his twin brother. The fact that the measure is applied to the whole labour force is no answer when it is done selectively.
Lord Strathclyde: My Lords, with the leave of the House perhaps I may reply to that specific point. The tribunal can decide on the facts of the case whether or not the employer was correct in dismissing his employee selectively. The principle behind this clause is whether we should now bring in the possibility of selective dismissal or whether we should stick to the old way where either the whole labour force is sacked or no one is sacked. Surely, the noble Baroness must feel that what we are doing in this respect is correct.
Lord Wedderburn of Charlton: My Lords, before the noble Lord sits down, rather than ask him for a reference to the quotation of my views—which he inaccurately gave and which he will be unable to find—I wish to ask him something which is internal to his argument. I wish it to be made clear so that I may understand. The Minister said words to the effect that employees who take unofficial action and know that it is not authorised by the union put their jobs on the line. I hope that that is a fair rendering of what he said.
Lord Strathclyde: My Lords, yes.
Lord Wedderburn of Charlton: If a clause is devised on that principle, should it not include the case of employees who thought that action was authorised but who turned out to be wrong? Should not the clause include the situation where employees did not think that they were putting their jobs on the line, took what they thought was authorised action, but, perhaps because of one of the shop stewards whom the Government are so fond of thinking about, a mistake was made and action was not authorised? Should not the clause allow for that, based on the argument that the Minister has put to us?
Lord Strathclyde: My Lords, again with the leave of the House, I point out to the noble Lord that we have made it quite clear that that is why we have not accepted any of the noble Lord's previous amendments on this Bill. There is no way out. The union has to repudiate and if it does not do so it will become liable. If it repudiates it must let the strikers know. At that stage the employees will be fully aware of the course of action which they are taking. If they take unofficial action they can be selectively dismissed.
Baroness Turner of Camden: My Lords, I am not all that surprised at the Minister's response. However, I was a little surprised at the comments made by the noble Lord, Lord Boyd-Carpenter. Because coming out on strike is a breach of contract even when there is proper authority from the union, it is not only in relation to unofficial action that if an employee strikes he risks his employment. That is not a new argument. We have here a Bill that introduces some new principles.

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There is provision for selective dismissal which we have never had before. Selective dismissal is opposed by this side of the House. The provision which exists at present where an employer has to dismiss all or none was deliberately introduced as a protection against victimisation so that people could not be sorted out in that situation. As a result of this Bill that protection has now gone in the case of unofficial disputes.
If that were not enough, in addition the Government provide in this Bill that individuals in such a situation will lose the right of access to an industrial tribunal. That is the purpose of this clause. It is that aspect of the Bill which I and other noble Lords, including the noble Baroness, Lady Seear, and the noble Lord, Lord Rochester, find so objectionable. I cannot see why the Government persist with their attitude regarding a warning. Surely, if people are indulging in unofficial action they have the right to be told that the net result may be not only dismissal but the loss of the right to take their case to an industrial tribunal if they are dismissed. That is quite unacceptable, and that is why we have again put down an amendment designed to provide for a warning. I still do not know why that should be regarded as excessive, to use the words of the noble Lord, Lord Boyd-Carpenter. It seems to me to be simple and fair.
If I may deal with the jibe that we heard from the noble Lord the Minister about us on this side of the House being in favour of protecting strikes, perhaps I may simply remind the Minister that on this side of the House we are in favour of arbitration and conciliation procedures, and of civilised ways of resolving industrial conflict. The Government have amended the legislation that we had until relatively recently, until 1979–80, and have removed from legislation provisions that enable disputes to be resolved through arbitration processes and reference to the central arbitration committee.
I find the Government's response to this very modest proposition entirely unsatisfactory, but at this point I do not intend to press the matter to a vote because of the lateness of the hour. I shall read very carefully the debate in Hansard and consider whether or not we may have another look at the point at Third Reading, because it is an important proposition. In my view, it is a matter of natural justice. It is unfair that people should be exposed in this way, and that new principles of the kind to which I have referred should be introduced, with people not even being warned that they are laying themselves open not only to being dismissed selectively, but also to losing any right of access to an industrial tribunal following such dismissal if it takes place. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Turner of Camden Baroness Turner of Camden moved Amendment No. 13:
Page 10, leave out lines 5 to 7.
The noble Baroness said: My Lords, through this amendment I should like to draw attention to an astonishing set of assumptions underlying the Bill. As
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I understand it, the Bill is seeking to make a distinction between official and unofficial action. We are told that official action is action taken by unions and authorised following a ballot conducted in accordance with the provisions of current legislation. The union decides whether the action shall be official or not. Unofficial action is not authorised by the unions and not sanctioned by a ballot of the individuals taking part, but unofficial action is action undertaken by union members.
What happens if the employees are not members of the union but nevertheless feel aggrieved at actions of management or are upset by managerial decisions? What happens if such employees decide that they have had enough and simply walk off the job? What happens in situations—many of which exist in industry or commerce—where, for example, there is no union but there is a works or staff committee? That works or staff committee does not negotiate terms or conditions of employment. Its function is consultative only.
If people feel aggrieved about something, if someone is dismissed and the consultative committee leads a walk out, the employer dismisses the committee members. If they are union members they cannot have access to an industrial tribunal, but if they are not union members they can have that access. Since their committee does not have negotiating rights but is simply consultative, it would not be regarded as a union within the meaning of Section 28 of TULRA.
If we do not delete the wording in the Act to which my amendment refers, we have a situation in which non-unionists could take part in an action and still have their right of access to an industrial tribunal if they are dismissed, but if they are trade unionists taking part in such an action they would not have such a right. That is an incredible situation, and I wonder whether the Government would care to explain their thinking, because as the Bill stands it looks as though they are entirely concerned to make it more difficult for people to continue in union membership and easier for people to take dispute action, walking off jobs perhaps, if they are not in unions. If they are aggrieved about something, if there are health and safety issues with which they are concerned, they do not have any organisation but they come together collectively because they feel aggrieved. They would still have their rights in law to go to an industrial tribunal if they were dismissed, but, if they were trade unionists, they would not have that right. I have put down the amendment because the Government have some explaining to do on that score. I beg to move.
9.30 p.m.
Lord Strathclyde: My Lords, it would make no sense to render non-members liable to selective dismissal while taking "unofficial" action because such individuals could never take anything other than such action.
That logic, and the provisions which the amendment seeks to remove, was reflected in the

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definition of "unofficial action" quoted in paragraph 1·2 of the Green Paper Unofficial Action and the Law. That definition of industrial action was as follows:
"Industrial action taken by union members but not authorised or endorsed by their trade union".
Quite clearly, non-members are not in the scope of that definition, and the terms "official" or "unofficial" are meaningless in the context of industrial action taken by such employees.
To accept the amendment would be to risk creating a complete nonsense. More particularly, it would mean that non-union members taking industrial action could never avoid liability to selective dismissal. The Government have no intention of creating such a situation and I hope that the noble Baroness will withdraw the amendment.
Baroness Turner of Camden: My Lords, I find the Minister's reply astonishing. As I understand it, if you are a member of a union and you take part in unofficial action, even if not endorsed by your union, or if a group of persons in the works are members of a union and they decide to walk off the job, they are liable. However, if the same people take the same action but do not have a union card among them, that is all right. They will still have the protection of the law in relation to dismissal and so on. Is that right?
Lord Strathclyde: My Lords, with the leave of the House, perhaps I may cover that point. The noble Baroness could give a list of possible permutations of people who have a union card and people who do not, those who go on strike and those who do not and those who are authorised and those who are not. We could spend all night talking about that. However, we have looked at every permutation and we are confident that the law is clear. There is nothing much to add to what I have said, but, if the noble Baroness has a problem, perhaps I may write to her setting out the relevant law. If that is not good enough, I am happy to explain every different permutation.
Lord McCarthy: My Lords, before the noble Lord sits down, perhaps I may say that I do not want to go through all the permutations. Does he agree that the implication of his comments is that, if workers want to take action which is not authorised by the union or which is subsequently not authorised by the union, they should throw in their union cards? If they do that, they will be outside the ambit of the law. Are we naive to assume that that might be one of the purposes of the clause?
Lord Strathclyde: No, my Lords. Only union members can take official action. If you are not a union member, you cannot take official action because the law does not apply. It is pretty simple stuff.
Baroness Turner of Camden: My Lords, that is right. In that case, I still do not see the reason for including the clause in the Bill. It states:
"Provided that, a strike or other industrial action shall not be regarded as unofficial if none of those taking part in it are members of a trade union".
In other words, as my noble friend Lord McCarthy said, if a group of people decided that they wanted to
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take action, they could simply turn in their union cards so that none of those taking part in the action were members of a trade union at the time. I believe that the provision is nonsensical.
The object of our amendment is to put everything on an even keel and make it fair for everyone. If we are to have restrictions on union members, why not have restrictions on non-union members? It is not beyond the bounds of possibility that collective action takes place in industry and commerce when individuals are not members of a trade union if they feel sufficiently aggrieved about a matter. In my view this is an absurd situation. However, I do not think that we can explore it any further this evening. I intend to withdraw the amendment but, as I said, the provision is nonsensical. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 14:
Page 10, line 7, at end insert:
("(2A) For the avoidance of doubt it is hereby declared that, for the purposes of this section and of section 62 of this Act, a stoppage of work by employees is not industrial action if they take part in that stoppage by reason wholly or mainly of a serious, imminent and unavoidable danger at their place of work or other dangerous area in which they are working.").
The noble Lord said: My Lords, as this is a most important point I should like to start with something non-controversial. I am sure that the Minister will agree that nothing is more important to the structure of the clause, and in some ways to the Bill, than the meaning of industrial action. The issue with which the amendment is concerned is whether a stoppage of work by workers faced with a serious danger at the workplace can ever be—I repeat the words "can ever be"—industrial action. If it is ever capable of being deemed as industrial action, then looking at the report of the proceedings in Committee there seems little doubt or even dispute that there is need for a clarificatory amendment to the Bill.
The amendment we propose on this occasion as opposed to the one moved in Committee is very narrow and it is put forward for the avoidance of doubt. We are at one with the Government when they say that such a stoppage on the grounds of safety should not be industrial action which would allow an employer to dismiss workers within the compass of Clause 9 in regard to unofficial action. Indeed, in our submission it is quite impossible to take up any other posture in the light of the rights established by Article 8 of Community Directive No. 391 of 1989, on which the Minister said relatively little in Committee and to which I shall return later.
I make no apology for returning to this matter and for trying to deal with it thoroughly. Accidents which take place at work are a serious matter in our society and not enough is being done to prevent them. Workers should have the right to stop work in the face, as the amendment says,
"of a serious, imminent and unavoidable danger".

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We urge that the doubts on the matter be cured by a clarificatory amendment to the Bill. At one point in Committee the Minister appeared to deny that the problem existed. He said:
"There is no prospect of an employer obliging his employees to work in unsafe conditions".—[Official Report, 12/7/90; col. 514.]
With the greatest respect to the noble Lord, whatever else he has done in his life, he has not spent much time on a building site. The situation does occur. It may not happen often, but it happens. However, throughout the rest of the Committee stage he accepted that there may be a problem in this respect. Therefore the meaning of industrial action has to be analysed.
I believe that it may be common ground that the cases which were heard in the Court of Appeal—such as Power Packing Casemakers v. Faust in 1983 and Express and Star Ltd. v. Bunday in 1988—clearly establish that the test of industrial action in this area of the law is not measured by breach of contract on either side. Therefore, the lockout is not measured by breach of contract by the employer, nor is industrial action measured by any breach of contract by the employee. For good or ill that is the law by which Clause 9 must be interpreted. Industrial action, as Lord Justice Stephenson said in the Faust case, is the "application of pressure", whether it is a breach of contract or not.
The Government were wrong in another place and in Committee to suggest that there is no decided case where workers have been held to have engaged in industrial action in the face of an unsafe workplace or machinery. The case which I put to the Minister in Committee of Wilkins v. Cantrell in 1978 which was heard in the Employment Appeal Tribunal was a case of lorries being overloaded under the Road Traffic Act which was treated by the appeal tribunal as infringing the Road Traffic Act. That is a crime. Moreover, in so far as the employer had ordered the lorries to be driven, it was considered to be a breach of contract on his part. However, the court held that the workers who stopped work,
"felt compelled to resort to industrial action and went on strike".
There have been many criticisms as regards other parts of that judgment, but that particular part has never been criticised.
The Minister said three times in Committee (cols. 514–6) that no court would hold a stoppage to be industrial action if the machinery were dangerous. Earlier he said:
"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 … or the proposed new Section 62A".—[Official Report, 12/7/90; col. 512.]
I hope that he has had time to consider Wilkins v. Cantrell and, in so far as it has been commented upon, the clear acceptance by the court that that is a possibility. The Minister then made a distinction between a simple stoppage of work in face of danger and a stoppage in face of danger that became industrial action. In so far as he accepted that industrial action in that context is any stoppage with
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pressure, we were in agreement. Indeed, when I asked him whether it was the Government's position that workers had a right to stop work in face of a perceived danger without that being industrial action, but that if they stop work in face of perceived danger and put pressure on the employer, demanding to have the situation rectified that is industrial action, he replied:
"I believe that that is the case. The noble Lord has set it up neatly; that is precisely the case".—[Official Report, 12/7/90; col. 511.]
Alas, half a column later, we find that the Minister says:
"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".—[Official Report, 12/7/90; col. 511.]
The Minister was now venturing upon the distinction of disagreeing with the decided cases and himself. Of course, the very concept of a simple stoppage, as the noble Baroness, Lady Seear, said at col. 513, is a false one. She said:
"Is not the mere fact that there has been a stoppage of work a form of pressure?"—[Official Report, 12/7/90; col. 513.]
In the ordinary case of course it is. It is designed to get the matter put right. The Minister then introduced a new test. He implied that what matters is the intention behind the stoppage of work, that is, the intention of the workers. He then goes on to a different tack, one never heard on the Bill. He claimed that although there was an element of pressure from not working because of a fear of working on unsafe machinery, that did not necessarily mean that it amounted to industrial action. Then he said that,
"the relevant law and precedents indicate that there is no greater difficulty in deciding the difference between pressure and undue pressure".—[Official Report, 12/7/90; col. 514.]
I do not know those precedents. If he would refer me to the case in which "pressure" and "undue pressure" were discussed, I should be happy.
The Minister was not arguing consistently. It will not do to end a line of argument of that sort by saying that it is all clear; because we must remember that the Government's proposition is that there is a clear right in English law to stop work in the face of an unsafe workplace; it needs no amendment of the Bill; and, therefore, the debate is useless. The Government must tell us when workers can stop work in face of serious danger. They have to do it, and this is the limitation upon them, within the confines of Article 8, paragraph 4 of framework Directive No. 391 of 12th June 1989 which provides:
"Workers who, in the event of serious, imminent and unavoidable danger"—
those are the words of our amendment—leave their workplace or a dangerous area should not be placed at any disadvantage because of their action and must be protected against harmful and unjustified consequences.
Not only does English law not clearly say that, there is a further problem to which I referred the Minister in Committee, and which he did not answer, and to which I believe he must advert. In so far as our common law allows workers to stop work in the face

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of an unlawful order to work on unsafe premises—it is clear that they have that right—their stoppage, on the authorities of which I am aware, appears to be a stoppage which terminates their contract of employment. They have the right to stop work, but it ends the contract. That does not come within the directive. The directive does not talk about giving up one's job to rid oneself of the danger.
With all the problems of simple stoppages, complicated stoppages, pressure and undue pressure, the uncertainty of the contractual position, and the protean juridical muddle that has so far emerged behind the debate, would not it be sensible this time to adopt not exactly what we want, because we believe that the right law is as in the French code de travail? Workers should be able to stop work if there is a reasonable apprehension of danger. We have not phrased it in that way. To make it easier for the Minister, we have phrased it squarely on the directive. Surely he will accept, at least for Third Reading, considering a clarificatory provision which is no more than a directive. Perhaps he will say on this matter, "Let us get the position clear and straight from the beginning". I beg to move.
9.45 p.m.
Baroness Seear: My Lords, we strongly support the amendment. I am sure that the Minister does not wish to give the impression that in the face of a threat of danger this is industrial action. It does not have to be dangerous machinery. There are other extremely unhealthy conditions such as gas leaks. The Minister would not argue with us that that should in any way be seen as industrial action. If that is so, can he not accept that sometimes the belt and braces argument is right?
It may be that the issue is covered in one way or another in British law. The noble Lord, Lord Wedderburn, believes that it is not. I do not know. If he believes that, then probably it is not. Even if it is covered or might be thought to be, the matter is important. We should take into account the European directive. What possible harm could be done by adding these five lines to the Bill, making it clear beyond peradventure? We are both agreed about the objective.
Baroness White: My Lords, I hesitate to intervene in the debates because I have, not been able to be present for most of them and I have no specialist knowledge such as my noble friends on the Front Bench have. I have great sympathy with the amendment. What possible harm could there be in having a declaratory statement of this nature?
Let us not be stupidly sentimental about the conditions in some of our workplaces in this country. My noble friend mentioned building sites. I have within my acquaintance people in South Wales who have been seriously injured because they felt they had to continue in a job in situations in which they ought never to have been asked to work at all. In areas of high unemployment, as we still have in parts of the South Wales valleys, the only job one can obtain may
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be on a building site, usually something for which the person concerned does not have adequate training. Nobody should be forced to work under such conditions. I hope that the Minister will at least have the grace to recognise—even if he has never worked on a building site—that some of us know people who did and who received serious injuries in consequence.
Lord Strathclyde: My Lords, throughout these debates in Committee and again today the Government have made it quite clear that we fully share the aim of ensuring that health and safety standards at workplaces are maintained and improved. We would never propose legislation that we believed would in any way undermine health and safety at work standards. This Bill does no such thing.
Perhaps I may respond to the noble Baronesses, Lady White and Lady Seear. There is nothing in the amendment which will change the position with the examples that the noble Baroness, Lady White, has used about work on construction sites. The amendment draws on the language used in the Community framework directive on health and safety and purports to be for the avoidance of doubt. However, I believe that there is no need for any such provision.
At no stage have noble Lords opposite produced evidence to show that any court will regard a simple refusal to do unsafe work as taking industrial action, whether official or unofficial. Accordingly, there is no doubt about this matter and hence no doubt to be removed. If we attempted such a provision, the net result could only he to sow the seeds of doubt and confusion.
However, in this instance it is apparent that the terms of the amendment go a great deal further than removing doubt about what is the relevant matter. As I understand its terms, the amendment would create a situation in which employees would be protected against liability to selective or non-selective dismissal if they stopped work not because of any "serious, imminent" or "unavoidable danger" to themselves but as some sort of protest action in sympathy with others who were in such a position. That would be totally undesirable. It would enable employees taking industrial action to escape liability to dismissal simply by identifying some sort of connection with such a claim. That cannot be the right approach. I am sure the noble Baroness, Lady Seear, does not agree with that approach. It would certainly amount to significant modification of the present law, let alone what we are amending it to.
In addition, there is the weasel word "mainly". What the Government have consistently maintained is that simple refusal to do unsafe work will not be held to involve taking industrial action. That involves the test of motivation. If an employee stops work or does any similar sort of thing because of his perception of what is necessary for self-preservation, that is not something that is motivated by any kind of desire to bring pressure on his employer. It follows that the employee is not taking industrial action. However, the amendment envisages treating something which has an element of different motivation as if that extra

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element did not exist, at least as long as it was not the main motivation. Frankly, that approach simply muddies the waters.
We believe that the amendment does not protect the case where employees stop work in the incorrect belief that there is an imminent danger. However, the present law as it stands protects such a case because it relies on a motivation test. That shows exactly why it is difficult to achieve a satisfactory avoidance of doubt provision. It is best to leave it to tribunals to decide whether industrial action is taking place on the basis of the facts before them. The noble Lord, Lord Wedderburn, mentioned the Wilkins case. The lorry driver; involved in that case took industrial action. It was not a case of a simple refusal to carry out unsafe work. The latter case is the position that we are trying to protect here.
Lord Wedderburn of Charlton: My Lords, while the Minister is discussing that case, perhaps he will tell us what factor in that case caused the stoppage not to be a simple stoppage in the face of unsafe lorries.
Lord Strathclyde: My Lords, I shall have to check out that reference. However, perhaps I may suggest that the motivation behind that case was to put undue pressure on the employer concerned. I have always maintained that if it is a case of a simple refusal to carry out unsafe work, no tribunal will declare such action to be unofficial action. That would be quite ridiculous.
In Committee I said that we believe that health and safety problems should be resolved by employers, who have the primary responsibility for that 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 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 industrial action, and unofficial action in particular, is a proper response to health and safety concerns. Yet that appears to be the position which noble Lords opposite have taken. If that is the case, I have to say that the Government could not accept any such philosophy.
The real aim of this amendment is to allow unions to find a loophole within the law so that they can legitimately take industrial action. There is no question of the Government making health and safety at work provisions worse than they are now. That would be unacceptable to this Government. I hope that in the light of what I have said noble Lords will accept that the provisions of the Bill at which these amendments are directed will not have untoward effects upon health and safety at work. I hope therefore that the noble Baroness will accept that the amendment is neither necessary nor desirable and will therefore withdraw it.
Lord Wedderburn of Charlton: My Lords, we are naturally disappointed because we believe the issue concerned is a serious and important one. I am particularly disappointed that the Minister has, not
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for the first time, offered as one of his reasons for opposing the amendment a lack of bona fides. It is sometimes said that the last clause in any pleading is an attack on the bona fides of the other side. I am slightly surprised that the Minister repeated yet again the argument about loopholes in the law when some of us have considered the matter deeply for many years and looked very carefully at the law.
I am surprised that he suggested that the Wilkins case leaves the law in a condition in which a stoppage in face of danger or lack of safety at the workplace becomes industrial action when there is undue pressure on the employer. That is the only proposition that I gathered from the Minister. If he looks at the Wilkins case I do not believe that he will find undue pressure other than a determination by the drivers, rightly or wrongly, not to drive the lorries because they would be injured. Yet the Minister said that that was undue pressure. However, when he chose to refer to a simple refusal he told us that there was no case in the books. I am not surprised. Any refusal to work in the face of danger, as the noble Baroness, Lady Seear, said, imports a notion of pressure that one should not be asked to continue with the job in such conditions. The government case is that there is a right to engage in a simple refusal which is either non-existent as a right or as nearly so as makes no matter.
Furthermore, the Minister suggested that we have put a weasel word into our amendment. I do not normally use weasel words. We used the phrase that workers stopped work:
"by reason wholly or mainly of a serious, imminent and unavoidable danger".
I said that the words "serious, imminent and unavoidable danger" come from the Community directive. The words "wholly or mainly" were taken from the Government's own definition of a trade dispute in 1982. It is the normal way of describing people's intentions.
We all have that little bit of intention that we will not acknowledge although our main intention is clear. As I said in Committee, where there are 30 workers it could be that one of them has some other intention. I accept that. However, I should have thought that the "whole or main" intention of the group in face of a danger which will injure people was important.
We stand here and talk about simple refusals and refusals with undue pressure. It is absurd. I beg the Government to consider doing something about the matter before Third Reading. It is a matter on which we have Community obligations. It is a matter on which English law is clear, and it is a matter on which, up until this evening at least, the Government have said that they want to include some provision that will help people avoid being injured at work.
The Minister must go away and consult with his advisers and with all the necessary legal authorities on the matter because his presentation of English law has been faulty. With the greatest respect to him, the policy tonight has also been doubtful.
I have to beg leave to withdraw the amendment but I do so with the feeling that this House has not done

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its job on a matter which is of great importance not just to people who work on construction sites but to people who work in offices, factories and other places of work up and down the land. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 15:
Page 10, line 11, at end insert:
("(3A) Where an employee has been dismissed under the provisions of subsections (1) and (2) above and one or more relevant employees of the same employer, within the meaning of section 62(4) of this Act, have not been dismissed, he may make a special application to an industrial tribunal.
(3B) Where an employee makes a special application and the industrial tribunal finds that, in accordance with equity and the substantial merits of the case, the selection by the employer of that employee for dismissal was arbitrary or had no reasonable ground, it may award such compensation as it considers just and equitable to be paid by the employer to the employee but shall have no power to make an order for reinstatement or re-engagement under section 69 of this Act.
(3C) The Secretary of State shall by order made by statutory instrument of which a draft has been laid before Parliament and approved by both Houses of Parliament, set the limit of compensation which may be awarded on a special application and may by order so made from time to time vary that limit.").
The noble Lord said: My Lords, I do not know whether the Government will agree with the amendment, but it seeks something different. In essence, with this amendment we ask the Government to consider leaving the clause as it is and preventing any action being brought for unfair dismissal by those who are dismissed while taking part in industrial action. That means that the employer is entitled to select dismissals and that there can be no orders for reinstatement or re-engagement or for compensation on the normal basis under the 1978 Act. All of those issues are left as they were by the amendment.
There is a situation in which the employer has a power which he has not had since 1971, under a policy which up to now has been bipartisan. The point came up on a previous amendment and the noble Baroness and the Minister exchanged words upon it. Albeit that the Minister is right to say that for many years the employers had the right to sack the whole group which took part in the strike, nevertheless the noble Baroness was surely right to say to the Minister—if I may remind him—that that did not apply to individual selective dismissals.
The question therefore arises: when the employer acquires this new right to dismiss selectively, is there not a case for a special application in the rare instance of someone who has been dismissed, as the amendment says, "arbitrarily"? Even if the case could come to the tribunal, it is not a case which would fall anyway within Section 57 of the 1978 Act, which requires that the employer should have acted reasonably and treated the ground as sufficient reason for dismissing the employee. That is not the test at all. The test is much higher than that.
It is required that the employee should show—and the burden will be on him to do so—that this is an
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arbitrary dismissal. It is not a very high burden of proof for the employer; it is not a very heavy burden on business; and it is not even a very heavy compensation, if the employee manages to surmount the hurdle. As the amendment makes clear, it will be a special award by the tribunal within a maximum limit that the Secretary of State can make by order. He can set the order maximum as low as he likes. The matter will be entirely in his hands.
There must surely be some cases in which the employer, having dismissed selectively, failed to observe even the lowest levels. I know that the law reports are not necessarily a good guide to life: the Minister will have found that out recently. However, there was a case in 1983 where, in a small firm, workers began to join the union. The union pressed for recognition and the employer did an extraordinary thing. It cannot happen very often. He told the manager to dismiss any 20 employees just to teach them all a lesson. The matter was rather complicated: it went to the Court of Appeal.
There is a set of facts found perhaps once in a lifetime. However, it seems wrong that such persons should be excluded from the tribunal in respect of even a small compensation. The family income has been lost. I hesitate to mention our position under the ILO conventions. I should have thought that when the Minister replies again to the three judges of the international court and the other eminent jurists on the committee of experts he will have something to argue if he can say to them, "It is true that you say that it is a breach of the convention not to allow those dismissed in strike action to go to the tribunals. We cannot allow that. We do not agree with you."
I say that where the matter is wholly arbitrary—perhaps in a case where the employer did not bother about the selection or left it to a manager who did not bother but for whom he is responsible—some kind of recompense or compensation can be found. That is all that the amendment seeks. It accepts the Government's new law. But, at the end of the day, we ask whether there are not a few cases—the one that I cited is a rather extraordinary one but perhaps they are always rather extraordinary—in which arbitrary action should receive some kind of compensation. I beg to move.
10 p.m.
Lord Boyd-Carpenter: My Lords, I hope that my noble friend will not accept the amendment. Apparently it suggests that although, under the existing law, all those taking part in the action concerned can be dismissed, under the Bill it will be possible to be selective and where the selection is made there should be a right of appeal in the case of an individual who believes that he has a grievance. If the law were to remain as at present there could be no question of such an appeal. As I understand it, it is only because of the provision for selection that it is thought even possible to suggest this right.
I cannot see why someone who under the present law is subject to dismissal should have a special right of appeal when the law is altered to make the measure

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selective. That does not seem to me to be logical. I hope that the noble Lord will not press the amendment.
Lord Strathclyde: My Lords, Amendment No. 15 would drive a coach and horses through the intended effects of the new Section 62A. The amendment would allow any employee selectively dismissed while taking unofficial industrial action to apply to a tribunal claiming that his dismissal was,
"arbitrary or had no reasonable ground".
If the tribunal found in his favour an employer could be ordered to pay compensation but not to offer reinstatement. The amendment would undermine the intent of Clause 9 by restricting the freedom which employers may need to make selective dismissals of those taking unofficial industrial action where they judge this to be appropriate as a means of deterring or discouraging such action.
The amendment would also involve tribunals in making decisions which would almost invariably involve some kind of judgment on the merits of the dispute. By opening the possibility that tribunals would be required to decide for either the employer or the dismissed employee on the basis of whether what the employer had done was justifiable,
"in equity and the substantial merits of the case",
the tribunals' reputation for impartiality would be put at considerable risk.
Taking unofficial industrial action should be adequate grounds of itself to permit selective dismissal. Any employee taking any industrial action, whether official or unofficial, puts his job at risk. I have made this point already today and I certainly made it several times at Committee stage. The sanction of selective dismissal is a necessary ingredient in the package of measures in the Bill to deter and discourage such action. The amendment risks undermining the force of the sanction by making it more difficult for employers to use it where necessary. We believe, however, that it is likely to discourage employees from embarking on or continuing with unofficial action. The present statutory requirement that an employer must dismiss all the strikers or none of them is clearly not a credible deterrent to unofficial action.
I repeat, the purpose of Clause 9, like much of the Government's previous industrial relations and trade union legislation, is to bring about a change in attitudes and encourage responsible behaviour. The amendment would remove an important element of the measures in the Bill designed to deter and discourage unofficial action. I hope the noble Lords opposite will withdraw it.
Lord Wedderburn of Charlton: My Lords, I appreciate what the noble Lord, Lord Boyd-Carpenter, says. I would not claim that the structure of the law is logical now or has been necessarily so for a long time. However, I put this to him. Where what he calls the old law is utilised and all those taking part are dismissed is a different situation from where the
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employer positively selects. He may select on some ground for which he can give some reason or the selection may be purely arbitrary.
There is good precedent for treating selection as an additional element. For example, if the noble Lord considers the provisions of the 1978 Act he will find one set of provisions on redundancy and in Section 59 a separate special provision where the employer has selected for redundancy in a particular group. I do not claim a great precedent. I say only that selection is a matter that is taken into account.
The success of the Government's measures, the success of their policy to determine industrial action, appears to depend upon denying all compensation to anyone dismissed who is taking part in unofficial action. That is a very wide phrase. It is wider than one might believe when one considers the cases. Whatever the grounds on which those taking part in unofficial action are dismissed, when they get home they might say, "I was taking part in industrial action". They might be be asked, "Why did he take you out?" and they might answer, "I've no idea. I think he didn't like the look of my hair." That such cases could not allow for a small amount of compensation seems to me an indication of the weakness of the Government's analysis and identification of the problems in industrial relations. We are at a point where the Government no longer have any understanding of the industrial problems before them. However, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Rochester Lord Rochester moved Amendment No. 16:
Page 10, line 17, leave out ("next") and insert ("third").
The noble Lord said: My Lords, under Clause 9(4) industrial action is not to be treated as unofficial before the end of the next working day after the day on which the repudiation takes place. In Committee we discussed whether the period was long enough to enable individual union members to be made aware that their action could lead to dismissal and loss of their right to claim before an industrial tribunal that the dismissal was unfair. My noble friend Lady Seear and I were not satisfied with the Minister's response in Committee and therefore I have tabled the amendment to enable us to return to the subject.
The Minister said:
"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".—[Official Report, 12/7/90; col. 524.]
I cannot accept that. Clause 6(5) clearly states:
"the union must do its best to give individual written notice of the fact and date of repudiation, without delay … to every member of the union who the union has reason to believe is taking part, or might otherwise take part, in industrial action as a result of the act".
From that provision it is plain that it is not sufficient for the warning to be given, as the Minister claimed, by word of mouth. Admittedly the written notice does not have to be sent by post; it can be delivered by hand. Indeed in Committee we had an interesting exchange on the number of pubs to which

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a union official might have to go to notify all those on strike that their action had been repudiated by the union. The union must do its best to give the notice in writing. My contention is that the only sure way of doing so is by first-class post to the home of every union member involved. The Post Office is not so efficient that it can be relied upon to deliver first-class mail on the day after it is posted—
Lord Boyd-Carpenter: Hear, hear!
Lord Rochester: My Lords, for once I have the agreement of the noble Lord, Lord Boyd-Carpenter. Therefore, I have tabled the amendment to allow three days rather than one within which the operation can fairly and reasonably be expected to be completed. I beg to move.
10.15 pm
Lord McCarthy: My Lords, I ask the Minister to think seriously about this amendment. It may be his last chance to help us as a Minister before he leaves for green fields and pastures new. As we shall exchange him, as we are told, and the second Baron from Wellington and East Anglia is replaced by the second Viscount from Eton and Trinity, this may be the last time that he can help us.
To help him to do so I wish to return to the notion of repudiation as it was put forward in Section 15 of the 1982 Act. It always seemed to me that the Government were dealing with official reactions to official mistakes. There was a list of those who could authorise and make the union responsible; that is the general secretary, the executive, the full-time officers of the union and the committees upon which they serve—essentially, the official authority structure of the organisation. There was a shorter list of those who could repudiate. Those who could repudiate were those at the top of the organisation; for example, the principal executive, the general secretary, the president and so on.
As the clause has worked out, the union has usually known something of what it was being asked to authorise and repudiate. If there was a technical illegality in a ballot—for example, if a local official had supported industrial action and there had been some form of ballot but the ballot was inaccurate or inappropriate or there was no real majority—the union could always bring some kind of last minute authority to bear and it could repudiate in order to avoid becoming legally liable.
However, I suggest to the Minister that the extension of that limited notion of repudiation to the present situation is quite different. As we have said repeatedly, if one looks at Clause 6(3) there is an extended definition of who is now allowed to authorise. It takes into account not only full-time officials employed by the union but any member of any group who is, at the material time, a member for purposes which include the organisation or coordination of industrial action. This extension transforms the use and danger of repudiation.
As the noble Lord, Lord Rochester, said, there could very well be spontaneous walkouts in which the
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unions do not know the facts. The first they hear may be a telephone call from an employer. The union is being put into a position in which its only safe course is to repudiate. If it does not do so more or less immediately, then it becomes liable to some form of injunctive liability. In those circumstances we say that some reasonable period of time must be left for the workers to decide what to do. The amendment suggests that that should be a period of three days. We consider that this is a very modest and moderate amendment.
It is possible that the Minister may say that there are circumstances in which the union knows very well what is happening. The circumstances which I have mentioned will not be the only circumstances. However, one can imagine even more difficult circumstances. Let us suppose that the union has conducted a perfectly lawful ballot which was affirmative. Therefore, the workers concerned, within the time specified by the ballot, are perfectly entitled to take industrial action. The employer then improves his offer, as employers often do. One of the problems of the 1982 legislation is that that has become a negotiating ploy. The employer reaches a certain point and the union then sees whether it can achieve a majority. The union achieves that majority and the employer improves the offer. That was the case in the ambulance drivers' recent dispute. The union then recommends to its members to accept the improved offer but the workers do not agree. There has been a perfectly lawful ballot and there may have been a substantial majority in favour of taking industrial action. The union then says that it will hold a ballot to see if its members wish to accept the offer. That offer may be rejected and the union members come out on strike. Because it is out of time, the union is then asked to repudiate immediately. If it does not do so, it is liable. The proposal in the amendment is that not one day but three days should be allowed in which to repudiate. I support the amendment.
Lord Strathclyde: My Lords, in addressing this amendment I think it is once again useful to remind ourselves that the provisions of the proposed new Section 62A are intended as part of a package which will help deter and discourage the longstanding problem of irresponsible unofficial action. It may be helpful, at the outset, for me to clarify the purpose of the "period of grace" provisions to which this amendment relates.
This period of grace is simply a device to ensure that action which has been "official"—for example, because it has been called for by a union official—but which becomes "unofficial" by virtue of repudiation by the union's executive, president or general secretary, does not thereby render those taking the action liable to selective dismissal from the moment of repudiation. The period of grace is a device to prevent unduly arbitrary effects that this might otherwise have. It lasts for the rest of the day on which the union decides to repudiate the action and for the whole of the next working day. A union member taking

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unofficial industrial action would not become liable to selective dismissal (without the right to claim unfair dismissal) until after the period of grace had expired.
It happens that those arrangements provide a chance for the union to make whatever efforts it chooses to get the message about repudiation—and the changed status of relevant industrial action—to relevant members. But they do not, and are not intended to, provide a guarantee that employees will know that the status of industrial action has changed before they become liable to selective dismissal.
At this point I should make it absolutely clear that the period of grace arrangements are entirely separate from, and unrelated to, the requirements that Clause 6 proposes will apply if a union is to effectively repudiate a relevant act. In order to avoid potential liability, the union must not only repudiate the relevant act, or acts, but must,
"do its best to give individual written notice of the fact and date of repudiation, without delay",
to relevant members and to their employers. That is quite a different matter from what a union may, or may not, choose to do during the period of grace to tell people—by whatever means it decides to employ—that the status of the industrial action which it has repudiated has changed.
A hypothetical example may help to illustrate the difference. Following repudiation, a union might get in touch with local officials and ask them to do whatever they could—by whatever means—to let members know that official action had become unofficial. However, the union would still have to do its best to send individual written notice of repudiation to relevant members if its repudiation was to be effective, and if it was to escape liability.
I turn now to the amendment. It seeks to significantly extend the presently proposed period of grace from one day to three days. The Government believe that the sanction of selective dismissal ought to be available to employers faced with unofficial industrial action. That sanction is part of the package of measures in the Bill. It is clear, however, that if it is to be an effective sanction, selective dismissal must be available without undue delay. To allow three full working days during which the sanction of selective dismissal would not be available to an employer, even though the union had repudiated the relevant call or calls to take that action, would risk fatally undermining its effectiveness. It is easy enough to see that allowing unofficial action to continue for at least three days could pose significant problems for employers.
The noble Lord, Lord Wedderburn, wishes to say something?
Lord Wedderburn of Charlton: My Lords, the Minister is most kind to give way. I have a problem in understanding what he just said. Perhaps he could elucidate. In the helpful example that he gave, the union repudiates and sends notices then, as it must, to its members. From what date does the one day run? Is it from the date on which the union decides to repudiate? If so, the day is ended before the members receive the letters.
Lord Strathclyde: My Lords, the start date is at the time of repudiation. For example, if repudiation was to take place at 12 o'clock midday on Monday, there would have to be one full working day thereafter, which would be Tuesday. At its extreme, selective dismissal could not take place until after midnight on Tuesday. In many cases the period could be longer than three days, taking into account that Saturdays, Sundays and Bank Holidays will not, in any case, count.
Finally, I think we would do well to reflect on the likely realities of the sort of situation in which the period of grace may be relevant. It must be reasonable to assume that a union concerned to protect its own liability to proceedings in tort is likely to repudiate a call to take unballoted industrial action.
It is also reasonable to assume that union members taking industrial action in response to a call by a union shop steward which has not been preceded by a proper ballot will have a pretty fair idea that their union is quite likely to repudiate the relevant call if it comes to the attention of their national leaders, and thereby turn their official action into unofficial action. Union members who choose to indulge in such irresponsible industrial acton do so with their eyes open to the possibility that they may become liable to selective dismissal. They will have only themselves to blame if they are so dismissed. I have to say to the noble Baroness, Lady Seear, and to the noble Lord, Lord Rochester, that the amendment is misconceived and misplaced and I hope the noble Baroness will therefore withdraw it.
Lord McCarthy: My Lords, before the Minister sits down I put this important point and perhaps he will confirm whether I have it right. On Monday morning the employer telephones the union and says, "Your members are on unlawful and unofficial strike. We want a repudiation". On Monday evening the union puts the repudiation in the post. It cannot send a telegram because we do not have them any more. They have been done away with. If the union has a fax machine, there is no problem. Otherwise, the union puts the repudiation in the post.
The members have all day Tuesday to find out, waiting for the repudiation to come. If the repudiation does not come on Wednesday morning—and God knows with the present postal system it will not!—they are all sacked. Is that the position?
Lord Strathclyde: My Lords, the noble Lord, Lord McCarthy, assumes that all employers are going suddenly to sack their staffs. That is not going to happen. I must make the point that the period of grace arrangements which we are discussing here are totally different from the requirements of Clause 6, the repudiation aspect. In order to avoid potential liability the union must not only repudiate the relevant acts but must do its best to give individual written notice of the fact and date of the repudiation without delay.
I believe that we are confusing two matters here. We have, on the one hand, the repudiation under Clause 6 and, on the other, the period of grace which falls under Clause 9. The two aspects are not related.

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Perhaps the noble Lord is confusing them. I hope he will read carefully what I have said and thereby understand the position more clearly.
Lord Rochester: My Lords, I confess that I find it difficult to understand why these two matters are, as the Minister put it, distinct. I shall need to look carefully at what he said. However, at first sight I find it difficult to understand his response to the point I made that under Clause 6, as I understand it, notice of repudiation must be given in writing and not by word of mouth.
I was disappointed in the Minister's reply. He might have said, "Perhaps three days is a bit long as a period within which notice of repudiation must be given to those taking part in industrial action. Perhaps it should be two days". The point I sought to make—I thank the noble Lord, Lord McCarthy, for his support—was that, given the vagaries of the post, and so on, one day is not enough.
However, although I do not feel that the noble Lord has responded adequately, having made my point I have no alternative at this stage but to withdraw the amendment.
Amendment, by leave, withdrawn.
10.30 p.m.
Lord McCarthy Lord McCarthy moved Amendment No. 17:
Page 10, line 19, at end insert:
"(4A) Where unofficial industrial action is taken by members of a trade union without authorisation by that union and within seven days of the commencement of the industrial action the union notifies their employer that it intends to enquire into the circumstances which have caused its members to take part with a view to settling the dispute and if necessary to hold a ballot, the court shall not within the seven days following that notification grant an injunction, or in Scotland interdict, to the employer by reason of a failure to satisfy Part II of the Trade Union Act 1984 on the ground that the union has endorsed the industrial action.").
The noble Lord said: My Lords, this amendment arises from an exchange which I had with the Minister in Committee. What I am asking is whether I understood correctly what he said and whether he can confirm what I take to be some of the implications of that and support this amendment.
The aim of the amendment is to allow trade unions a reasonable procedure to decide whether they wish to repudiate or to endorse and authorise. It will also allow the trade union a reasonable procedure without legal threat. I have to turn the attention of the House to the amendment itself because it seeks to do this in a way which the Minister might find acceptable. The amendment states:
"Where unofficial industrial action is taken by members of a trade union without authorisation by that union"—
that is a limiting condition—
"and within seven days of the commencement of the industrial action the union notifies their employer that it intends to enquire into the circumstances which have caused its members to take part with a view to settling the dispute and if necessary to hold a ballot,"—
so the union is not facilitating industrial action, but a settlement; it is not hanging out the settlement or the dispute. It is asking and trying to have a ballot—
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"the court shall not within the seven days following that notification grant an injunction, or in Scotland interdict, to the employer by reason of a failure to satisfy Part II of the Trade Union Act 1984 on the ground that the union has endorsed the industrial action.").
There is no sign of prior authorisation, no inducement; but there is a commitment to promote a settlement and not confrontation. There is a readiness to use the law for ballot procedures and there is a limited period of grace. That is what we are saying.
In the past the Minister has said that if a union opts for repudiation that is all right. We have never accepted that. First, we do not believe that repudiation in the period allowed is compatible with good union government. It could easily alienate the members and very easily stimulate a continuation of unofficial action. Secondly, we are by no means convinced that if a union did repudiate, and did everything that the Minister says it should do but there was no return to work, the union would be safe. We believe there would still be the possibility of an injunction because there was a serious case to answer. Proof is not needed for an injunction; nor likelihood and probability. It just has to be not frivolous or vexatious.
Many pieces of evidence and argument could be adduced that there was a serious case to answer. It does not necessarily have to be a case that would stand up in court, merely sufficient to get an injunction. Nevertheless, the Minister appears to be in no doubt that so long as the union instantly repudiates no problem can arise. I said at Committee stage:
"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".
The noble Lord replied:
"That is absolutely true if the unions repudiate the action".—[Official Report, 12/7/90; cols. 532–30.]
We are asking the Minister to accept that there might be some reason to change the law for that purpose. In any case the union might still be liable, subject to an injunction, if it had to wait for some time before it authorised the action. It might feel that it required a period in which to discover what the evidence was, what the reasons were, and why the members were on strike. It may feel that the best way to react to the situation, which would be the normal way to react, would be to say to the members, "Return to work; we will authorise and endorse your action subject to ballot".
That would be the normal way for a union to react. What will be the case then? We say that the union would be in a very difficult position. As we understand it, it would be liable. If the Government mean what they say and they do not want to add to the liabilities of trade unions as a result of this clause, they should accept the amendment. I beg to move.
Lord Renton: My Lords, I hope that my noble friend will resist the amendment. It seems to be a mandate for indefinite delay involving vast cost for

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some industries. It would enable unofficial action causing a strike to continue for a long time. Where the amendment states:
"the union notifies their employer that it intends to enquire"
there is no limit to the length of the inquiry. It could go on for days. In the case of a large industry like the motor industry it could cost millions of pounds a week. It takes us back to the days of Red Robbo. It is a mere devise for evasion of the law relating to unofficial action. I hope that my noble friend will resist it.
Lord Strathclyde: My Lords, I welcome the words of my noble friend Lord Renton.
The Government applaud union efforts to extend practical help which can lead to the appropriate resolution of industrial disputes. We would not wish to put any impediment in the way of a union which wished to make such efforts and we do not believe that anything in this Bill amounts to anything of the kind.
Furthermore, we entirely understand the proper interest which a union can have in the circumstances relating to unofficial industrial action taken by its members. We do not maintain that a union can be expected as a matter of course to encourage its members to return to work or to resume normal working without finding out more about the dispute which has led to the unofficial action. The provisions of the Bill as they stand are entirely consistent with that approach.
However, the amendment would create a situation in which a union would have protection against certain proceedings in tort even though it might actually be endorsing industrial action before there had been a proper ballot. That would be completely contrary to the principles on which the present law concerning union liability operates. We are sure that there is no question that if a union does no more than,
"inquire into the circumstances which have caused its members to take part"
in unofficial action, whether with a view to settling the dispute or not, such activity on its part does not carry any necessary implication that it has endorsed the action. On the other hand, where a union endorses, authorises or otherwise calls for industrial action by its members, it should continue, as now, to place itself at risk of proceedings in tort.
Where a union has repudiated a call to take action by any of its officials it remains for it,
"to inquire into the circumstances which have caused its members to take part with a view to settling the dispute".
Neither present law nor the law as it will stand if the Bill is enacted will render a union liable to proceedings in tort for simply doing this. Following repudiation, the union also remains free to organise a ballot, following which it may be lawful for it to organise official action. It follows that this amendment is unnecessary in relation to one set of circumstances to which it would apply and undesirable in relation to the other. Accordingly, I hope the noble Lord will withdraw it.
Lord McCarthy: My Lords, the noble Lord appears determined to leave us with Strathclyde's fork: here
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we are; you either have to repudiate or endorse, and either way you can be caught. I sometimes think that people do not read the amendments we put down.
I really cannot understand the view of the noble Lord, Lord Renton. There is nothing in this amendment to permit unlimited prevarication on the part of the union. The whole thing has to be over in seven days. If the noble Lord thinks that the words are not clear enough and he wants to put "seven days" three times in the amendment underlined in red ink, I do not mind. We are suggesting seven days; that is all.
There is nothing in the amendment to stop the employer saying, "Your union is having a ballot. Your union and your employer"—because the union must say this - "is asking you to return to work. That is what the union suggests. We suggest that you return to work, and if you do not do so we will sack you in seven days". There is nothing wrong with that. It is not illegal. The employer can make whatever threats he likes but he cannot carry them out for seven days, and he has to wait and see whether there is a ballot and whether that is in the affirmative. If it is, the union is entitled to carry out official industrial action. But the employer can still dismiss people. We are not talking about a right of reinstatement. We are talking about whether people have any right in law to go to an industrial tribunal. That is what is at issue. The employer can still issue all the industrial threats he wants.
This is an extremely mild amendment. Nevertheless, we shall withdraw it and think about it for Third Reading.
Amendment, by leave, withdrawn.
Baroness Turner of Camden Baroness Turner of Camden moved Amendment No. 18:
Page 10, line 33, at end insert:
("(5A) In determining whether an employee has no right to complain of unfair dismissal to an industrial tribunal under this section it shall be for the employer to show that the provisions of subsection (1) apply.").
The noble Baroness said: My Lords, again, we are talking here about the rights of employees to have access to an industrial tribunal in the event of dismissal following unofficial action.
We have already said on numerous occasions what we feel about the provisions in the Bill which remove the right of appeal to an industrial tribunal from individuals regarded by the employer as unofficial strikers or participants in unofficial action short of a strike. However, if the employer makes the allegation as a result of which a dismissed employee has no right of access to an industrial tribunal, it is surely for him to prove that that is so. It is after all a serious allegation and the employer, in sorting out individuals for dismissal, as he is entitled to do under the provisions of the Bill, might conceivably have got things wrong. A mistake might have been made. The wrong person might have been sorted out—the wrong "Red Robbo" or the wrong twin. Why should the employer not have the onus of proof placed upon him?
For many years I was a member of a social insurance tribunal. In that capacity I listened to a number of cases of alleged misconduct—cases where benefit had been withheld for the stipulated period because the individual concerned had been dismissed for misconduct. I well remember that it was always held that the onus of proof in such a case was on the individual alleging the misconduct and, if that onus of proof was not discharged, the individual got his benefit.
I cannot see why different standards should apply here. We are talking about a new principle: the right to dismiss selectively on the part of the employer and the removal of the right of the employee so dismissed to go to an industrial tribunal. Surely it is fair and proper that, in such circumstances, the person who makes the allegation should have to discharge the onus of proof. I beg to move.
Lord Renton: My Lords, as the noble Baroness said, this is entirely a question of the burden of proof. I hope that my noble friend the Minister will point out why the burden of proof should not be upon the employer. In circumstances of that kind, I should have thought that prima facie the burden of proof might well rest upon the the employer because it is the employer who in any event must discharge the burden of saying why there should be dismissal. If the cause of the dismissal is taking part in an unofficial strike or other unofficial industrial action, when it comes to the employer asserting his complaint in court, the burden of proof will then be upon him. I should have thought that we should at least possibly consider whether the employer should have the burden of proof in relation to the matters in subsection (1).
Lord Strathclyde: My Lords, to accept Amendment No. 18 would imply a presumption that a tribunal had jurisdiction to hear the complaint of unfair dismissal unless the employer could convince it otherwise. However, there is simply no reason why the burden of proof should rest on the employer in that way. Present law is neutral as to the burden of proof in matters relating to dismissal. That is surely right.
Amendment No. 18, however, would undermine that policy by making it easier for an employee to show that the tribunal had jurisdiction than for an employer to show that it had not. It is for the tribunal itself to decide whether it has jurisdiction to consider any particular complaint of unfair dismissal. The tribunal should be free to take account, without bias, of all the relevant facts put in evidence in order to inform its decision on the matter. The amendment is both unnecessary and inappropriate. I hope that the noble Baroness will withdraw it.
10.45 p.m.
Lord Wedderburn of Charlton: My Lords, before the noble Lord sits down, can he enlarge a little upon the relationship between the new clause and the present law? He said that under present law the burden of proof is neutral. However, is it not the case that under the present law that is only the third stage of a more complex set of propositions; namely, that
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the employee must prove his dismissal; that the employer must then prove one of the acceptable reasons of capability or the like, or some other substantial reason; and then (by way of a change which the Government made some years ago) when the third stage of reasonableness is reached, it is said that the burden of proof is neutral? Therefore, the situation is much more complex.
Is it not the case that the issue will arise in a way which the Minister has not met? In other words, the employee will come to the tribunal and complain of his dismissal. Surely, it is then for the employer to say, "But the tribunal has no jurisdiction." The reason that this is so, unless I misunderstood what the noble Lord, Lord Renton, said, is that subsection (1) says that where the employee is taking part in an unofficial strike the tribunal has no jurisdiction and therefore the employee has no right to complain.
Therefore, as there is some doubt in the matter, I believe that the Government should accept the amendment. It must surely be a matter for the employer. He must substantiate his plea that the tribunal has no jurisdiction.
Lord Renton: My Lords, I trust that the noble Lord will forgive my intervention. I did not say that the tribunal would have no jurisdiction; I said that the burden of proof at that stage would he upon the employer, but that it would be within the tribunal's jurisdiction.
Lord Wedderburn of Charlton: My Lords, I accept that.
Lord Strathclyde: My Lords, all we are dealing with here is a jurisdictional matter. It is not appropriate for the burden of proof to be any other than neutral in respect of such a matter. The burden of proof is always neutral on matters of jurisdiction. Therefore, I do not think that there is any confusion or any problem about which to worry.
Baroness Turner of Camden: My Lords, I do not think that there is much I can add to what my noble friend Lord Wedderburn said during his intervention. If matters are as indicated by the noble Lord, Lord Renton, surely it would do no harm to write this provision into the Bill so as to make it quite clear that the burden of proof in such circumstances in this jurisdictional matter rests with the employer.
However, as the Government do not feel disposed to accept the amendment, we shall withdraw it at this stage. Nevertheless, I really cannot understand why they seem to oppose even the most reasonable propositions which we on these Benches put forward. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McCarthy Lord McCarthy moved Amendment No. 19:
Leave out Clause 9.
The noble Lord said: My Lords, we feel that we must propose that this clause he removed from the Bill. However, I do not intend to spend much time on the matter. As we have repeatedly said, this clause allows for victimisation of trade unionists and not of

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non-unionists. It allows this to happen without the right of appeal and, with the benefit of the Post Office and with all respect to the Minister, it allows it without notice, because the great majority of members will not receive this intimation in time.
The clause is designed to drive a wedge between the member and the union because, first, it puts the union in an impossible position whereby the member has an incentive to resign and thus free himself from the restrictions; secondly, the union has an impossible choice between repudiation and endorsement, neither of which is legally safe; and, thirdly, it gives the union no safe alternative. In other words, there is no way in which the union can deal with this clause without risking some form of injunctive liability.
It is an unacceptable, unnecessary and, in fact, a most diabolical clause. Therefore, we have tried to mitigate its effects in Committee with the aid of the noble Lord, Lord Rochester, and the noble Baroness, Lady Seear. We have tried to do so in three ways. Moreover, I believe that we have tried to mitigate its effects in another five ways.
However, none of our proposals has been acceptable to the Minister and no new arguments have been suggested. Indeed, it seems to me that the only argument brought forward, both in Committee and now on Report, which has an even plausible or superficial justification, is that of removing an anomaly. It is the anomaly of where the employer was forced to use a sledgehammer—what one might call the megasanction of mass dismissal. Now he is giving the employer the microselective sanction. Not only should the employer be thankful but there is a clear inference that the workers should also be thankful, because they will not all be dismissed; it will be merely those whom the employer decides to dismiss.
The Minister knows, or if he does not the department knows, that that is hypocrisy. He knows, or the department knows and could tell him if he asks, why the situation was as it was under the Employment Protection Act 1975. He knows that it was the result of a compromise to balance the employer's right to severance during industrial action, without him having, the power to discriminate against shop stewards. He knows why it was done. He knows that at that time the CBI, the EEF, the employers' associations generally and the TUC agreed that that was a reasonable compromise. He knows that it is not a question of removing an anomaly; it is a question of pursuing trade unions and their members. That is why we consider that the clause has no part in this rotten Bill. I beg to move.
Lord Rochester: My Lords, the difficulty about speaking to such an amendment is that practically everything that there is to be said about the clause has already been said. Since, however, as I said before, it is more objectionable than any other clause in the Bill, I shall merely say that I feel that in practice far from helping disputes to be settled peacefully, the clause may well result in explosive situations which have the opposite effect.
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I believed it to be significant that in Committee when we were discussing an amendment to the clause the noble Lord, Lord Murray of Epping Forest, with all his experience said much the same. If industrial relations legislation is to be effective it must be even-handed as between employers and employees. The clause will not be even-handed in its application, because it provides penalties for employees without any corresponding obligations being placed upon employers.
The Government will no doubt have their way, but they may come to regret that they ever introduced the clause. The amendment proposes that Clause 9 should be deleted which is why I have added my name as a supporter of the amendment.
Lord Renton: My Lords, I am surprised at the attitude of the noble Lord, Lord Rochester, because I have always understood that he joined us some years ago in legislating to ensure that the wishes of the majority of the members of each trade union should prevail. Unofficial action, after the various ballots have taken place, is the will only of the minority. If one believes in democracy within the trade union movement, then one must regard Clause 9 as a natural part of the step-by-step approach in the evolution of trade union law to ensure trade union democracy. To remove Clause 9 would destroy one of the main purposes of the Bill. It was approved by another place after much consideration.
I hope that your Lordships will agree that Clause 9 remains an essential part of the Bill.
Lord Rochester: My Lords, before the noble Lord, Lord Renton, sits down, he has done me an injustice. First, the clause is not primarily about unofficial action. The main objection that my noble friends and I have, as well as the Labour Opposition, concerns the way in which it gives powers to employers to single out for dismissal individuals taking part in unofficial action. That is the guts of the clause, as I understand it. I do not believe that employers should be empowered to do this without having to justify their action before an independent tribunal. It is unjust that it should take place. I am more strongly opposed to the Government's action in departing from that principle than I am to any other single element in the Bill. That is why I have taken this attitude.
Lord Renton: My Lords, I trust that I am within the rules of order, as the noble Lord, Lord Rochester, was in prefacing his words with, "Before the noble Lord sits down". My answer is this. There must be some sanction to ensure that unofficial action does not go unimpeded in any way within the law. I should have thought that Clause 9, which is carefully phrased and which gives certain rights to the employee as well as to the employer, is the right consequence of Parliament's recognition that unofficial action by the minority of people in a trade union after a ballot should be controlled in the way that Clause 9 controls it.
Lord Strathclyde: My Lords, like my noble friend Lord Renton, I too am surprised by the words of the noble Lord, Lord Rochester. Perhaps I should summarise some basic points about the way in which

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the provisions of Clause 9 work. First, the clause has absolutely no significance whatsoever 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: first, whether the employee was dismissed while taking part in industrial action; if so, secondly, whether he was selectively dismissed; and if so, thirdly, 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. No one can now be obliged or coerced into taking industrial action. It is a matter of personal choice. Those union members who choose irresponsibly to take industrial action which is not authorised by their union should not be protected against selective dismissal. I should have thought that was something of which the noble Lord, Lord Rochester, would approve.
However, 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 9. I should add 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, and it is, we believe, reasonable to expect that employers will continue to be guided by common sense and practical considerations.
We believe that there is an anomaly in the present law whereby an employer must dismiss all or none of those taking unofficial action, and that cannot be allowed to continue. The debates we have had on the provisions of Clause 9 have won close attention on all sides of the House. The Opposition have made it clear that they find almost every aspect of these provisions objectionable. The provisions of Clause 9 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 and we can create the prosperity that we all want.
11 p.m.
Lord McCarthy: My Lords, the noble Lord has summarised once again the provisions of the clause. We know those provisions very well; that is what is
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wrong with them. The Minister talks again as if this clause was all we had to consider, as if it was Section 1 of the 1980 Act, and as if there had not been restrictions in 1982, 1984, 1986, 1988, 1989 and 1990. He knows that that is not the case. Even if it were the only clause in the only legislation on this matter, it is not reasonable to try to achieve its aim in the way it does. It is not reasonable to achieve that aim in circumstances in which people are not given notice and in circumstances where the union has no effective legal alternative. That is not reasonable and it is not fair. We shall not divide the House, but we still remain opposed to this clause. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 10 [Proceedings in respect of which assistance may be provided]:
Baroness Turner of Camden Baroness Turner of Camden moved Amendment No. 20:
Page 11, line 22, at end insert:
("(2A) Before proceeding to assist individuals under this section, the CROTUM shall satisfy himself that the union's internal procedures as set out in the union rules have been exhausted.").
The noble Baroness said: My Lords, we are now moving from Clause 9 with its contentious provisions to Clause 10 which involves the Commissioner for the Rights of Trade Union Members. This Bill gives the commissioner a lot of new functions, mainly connected with the rules of trade unions. The commissioner will be able to provide assistance to individuals who allege that union rules have been breached on a whole range of issues including appointments or elections, disciplinary cases including expulsion, authorising industrial action, balloting of members, funds or property and the constitutional proceedings of any committee, conference or other body. Those are very wide powers. One can imagine that there will be some individuals who, failing to get their own way by the union's democratic processes, nevertheless feel that they can go to the commissioner and at least cause some difficulty for the union, even if their cases fail to make progress.
There are always difficult individuals in any organisation. One has of course to tolerate them, but they can cause a great deal of worry and concern to the union and considerable expense. But they not only cause expense to the union. The commissioner has an office funded by public funds. Hearings and investigations cost money. It seems reasonable to insist that the internal procedures of the union should at least have been followed before the commissioner starts to provide assistance from public funds. I shall give the House an instance of the kind of thing I mean. In my union a fairly lengthy process was available, at the expense of the union, to individuals who felt aggrieved at the way in which the union's rules had been applied at any level. We had an appeal court consisting of elected members who held no other office in the union. Individuals had the right to appeal right up to the national executive council level, and if they did not like the decision of the executive council, they

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could go to the appeal court. They were allowed to be accompanied by another member and to call witnesses. All their expenses were paid.
The system was clearly so fair that, although it has always been possible to challenge unions in the courts on the application of their rules, nothing of that kind ever happened. Cases never got off the ground if they had been through that procedure. We of course were not the only union that had this kind of process. Most unions have procedures of a similar kind. I do not see why the commissioner should not satisfy himself that internal procedures have been exhausted before spending public money on these cases. I beg to move.
Lord Renton: My Lords, I do not find this amendment complimentary to trade unions. Under this clause there has been a definition and an enlargement of the powers of trade unions which we should all welcome. I should have thought that the so-called CROTUM—that is a new expression in our statutory language as described in the amendment—should be able to proceed on the assumption that the trade union concerned had taken full advantage of the powers given to it and that its procedures had been exhausted. It is rather strange if the trade union is not prepared to take full advantage of the opportunities given to it by Parliament. We know how insistent trade unions have always been on their rights in the past. Therefore I should have thought that the amendment was not only unnecessary but uncomplimentary.
Lord Rochester: My Lords, I do not seem to be getting on very well with the noble Lord, Lord Renton, this evening. I have long felt, and said again as recently as last month in the debate on industrial relations, initiated by the noble Viscount, Lord Caldecote, that it is high time the Government gave a lead in promoting the introduction, revision and rationalisation of procedures aimed at resolving disputes between management and employees more quickly. In contrast to the current Bill, that would be a positive contribution to the improvement of this country's industrial relations.
In favouring adherence to procedural agreements between management and trade union representatives before there is recourse to industrial action, I welcome also the idea inherent in the amendment that before the Commissioner for the Rights of Trade Union Members intervenes in proceedings concerning the alleged breach of a union's rules she should satisfy herself that that union's internal procedures have first been exhausted.
I do rot believe that the need for an amendment of this kind is a reflection on the union. Rather, it concerns the point that for some reason a member of a union may not have exhausted the procedures available to him or her within the union's rules. That is the key to the issue rather than the point that the noble Lord, Lord Renton, made. I am pleased to support the amendment.
Lord Strathclyde: My Lords, the amendment to Clause 10 is incompatible with the effective performance of the commissioner's function, and is also unnecessary.
If the commissioner had to be satisfied about the exhaustion of the union's internal procedure she would have to make inquiries for which she is not well suited which would almost certainly reveal to the union the identity of the applicant for her assistance. The knowledge that that would or could happen might well be a disincentive to the applicant or potential applicant for the commissioner's assistance.
In any case, if the commissioner's assistance could not be provided unless the union's internal procedures had been exhausted that could mean an undue delay. A union might spin out any such procedures, delaying the bringing of the proceedings. The commissioner may need to take that into account, because a court can, at its discretion, refuse to hear a case brought by a union member about a complaint of breach of rules capable of being dealt with by the union itself if he has not fully used any procedure provided for in the union's rules for pursuing such a grievance.
However, Section 2 of the Employment Act 1988 provides that the court must (unless the delay was due to unreasonable conduct of the member) deal with the complaint if the union member has previously made valid application to the union for the grievance to be resolved or submitted for consideration in accordance with the union's rules and the application to the court was made more than six months after the union received the member's application.
There is no evidence that the commissioner would use public funds to support proceedings in circumstances in which the union's own internal procedures had not yet been exhausted by a member. Nor will she be able to use public funds under Clause 10 to support proceedings unless they are of relevance to union members other than just the member making the complaint.
I hope that that reassures the noble Baroness and that she will be able to withdraw the amendment.
Baroness Turner of Camden: My Lords, I am not at all reassured. I do not understand the opposition from the noble Lord, Lord Renton. I agree with the noble Lord, Lord Rochester. It is not a question of being uncomplimentary to unions or their procedures but of not spending public money and utilising the time of a public official on individual complaints which could have been successfully resolved had the individual wished to do so within the union's procedures. Nor do I see why it would be incompatible with the office of the CROTUM, as in the amendment, and with the duties to be performed under the legislation. At one time the certification officer had powers in relation to the operation of unions' political fund rules. I can well remember when I was a union official occasionally being involved in complaints to that official. But he always satisfied himself before having a formal hearing that the individual concerned had first taken

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up the issue internally with the union. I do not see why the Commissioner for the Rights of Trade Union Members should be in any different position.
However, at this hour of the night I certainly shall not press the amendment. I am quite dissatisfied with the response of the Minister, in particular since it may very well be almost if not the last occasion on which he will respond to us on Report on a major Bill concerned with employment. I wish him every success in the greener fields of environment. I am very sorry that he has not found it possible to make a gesture towards us, except for the very small one this afternoon, on employment. Having said that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 12 [Consequential revision or revocation of Codes of Practice]:
[Amendment No. 21 not moved.]

Standard Life Assurance Company Bill [H.L.]
Presented and read a first time.
London Underground (Victoria) Bill
Brought from the Commons; read a first time, and referred to the Examiners.
City of London (Various Powers) Bill
Returned from the Commons with the amendments agreed to.

Greater Manchester (Light Rapid Transit System) Bill [H.L.]
Returned from the Commons agreed to with amendments; the amendments considered and agreed to.
House adjourned at twelve minutes past eleven o'clock.