Employment Bill

HL Deb 23 July 1990 vol 521 cc1260-311

Consideration of amendments on Report resumed on Clause 6.

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.

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 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 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 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.

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. 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 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 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 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 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 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 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 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 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.

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.

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 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 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.

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 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 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 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.

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 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 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 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 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 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". 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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. 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 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— "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 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 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 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 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 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 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.

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 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 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 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 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 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.]