Employment Bill

HL Deb 26 July 1990 vol 521 cc1623-41

11.40 a.m.

Read a third time.

Clause 6 [Responsibility of trade union for acts of officials, &c.]

Baroness Turner of Camden moved Amendment No. 1:

Page 6, line 20, after ("question,") insert ("save in circumstances where that person has ceased to hold that authority").

The noble Baroness said: My Lords, with the amendment we return to a matter that concerned us on Report but about which we were unable to persuade your Lordships that a problem exists. Clause 6 relates to the acceptance of responsibility by a union for people allegedly acting on its behalf. It is an important issue because of what can happen in industrial relations situations.

A stoppage might well be called by someone elected as a shop steward. However, the first that the union head office may hear of it may be when someone from management telephones and says, "Hey, your members at this plant are out". The next step may well be for the general secretary or other senior officer of the union to send a full-time official to investigate. When he arrives at the plant he may well find that the dispute has been called in an unauthorised manner. First, he will try to settle it. He may not be able to do so and the steward and members may be determined to continue. He may then tell the steward that he has no authority to act as he has and that, pending consideration by the national executive council, his credentials are withdrawn and he is regarded as suspended. The steward may not accept that. He may say that he is elected, that the members trust him, that the dispute will continue and that they do not wish to take any notice of what the bureaucrats at head office say. He may say that he will appeal against the removal of his credentials.

Then the matter will be one for the national executive council. However, it must be remembered that many, if not most, of the councils are made up of lay persons who work at their normal jobs during the week. It may well be necessary to call a special meeting of such people as they are likely to form the only authority able to deal with the situation. By the time that they have all been individually contacted and arrangements have been made for them to travel from various parts of the country to head office 48 hours may have elapsed. In the meantime the dispute is continuing and the person leading it has no authority. Surely it would be unfair that the union should be held liable for the actions of such an individual. Unless the Bill is amended that could well turn out to be the case.

On Report, at col. 125 of the Official Report, my noble friend Lord Wedderburn indicated that such a problem could arise. He drew attention to the fact that a court could say that it could not take union rules into account because that is expressly ruled out under subsection (3)(b). My noble friend, who regrets that he is unable to be hear today—

Lord Strathclyde

Shame!

Baroness Turner of Camden

My Lords, as everyone knows he has a vast amount of experience in this field of law and I am willing to believe that he is right about that. Therefore, we have come back with another amendment. I am not particularly committed to the wording, but surely it is clear what we are about. If the Government find the wording unacceptable, can they not find a way of giving the matter further attention because a genuine problem exists? I beg to move.

Lord Renton

My Lords, the noble Baroness seeks to amend an important provision, and one understands that she considers that such matters should receive attention. However, with respect, the provision in lines 16 to 20 on page 6 of the Bill is clear. I doubt whether the issue is made any more clear by the proposed amendment. Indeed, I fear that it introduces an element of uncertainty. As the amendment seeks to insert the words "where that person has ceased to hold that authority" the question arises: at what stage has that person ceased to hold the authority? Everything depends upon the stage at which that happens. Unless that issue is made clear we should do better without the amendment. More especially, if we read the Bill as it stands it is clear and commonsense that the act concerned can be authorised only by a person while he is empowered to authorise it. If he has ceased to have that power the provision cannot apply. Therefore, I hope that my noble friend will refuse to advise the House that the amendment should be accepted.

Lord McCarthy

My Lords, the noble Lord, Lord Renton, is right in the sense that the amendment would leave an element of uncertainty. However, the problem is that the Bill as it stands leaves an element of greater uncertainty. During Committee we said that there is nothing on the face of the Bill which can tell a union how it can bring about a lack of responsibility and liability by severing itself from an official. There is nothing in the Bill which allows that. Indeed, the Bill clearly states that one cannot take into account the rules of the union. It is no good the noble Lord, Lord Renton, saying that a court would take into account the union rules because the Bill clearly states that one cannot do so. Perhaps the amendment could be better worded but we are trying to provide a little less uncertainty than now exists in the Bill.

11.45 a.m.

Lord Strathclyde

My Lords, the debate is most interesting but the amendment is unnecessary. It proposes to modify the roughly equivalent provisions of Section 15(3)(a) as they would stand as amended by the Bill. The most straightforward objection to the amendment is that it is simply unnecessary. Including the words proposed would only sow confusion and doubt as to what the relevant provisions involve.

The proposed Section 15(3)(a) will mean that, if a union gives authority to anyone by providing positively in its own rules that the person is to have the union's authority to organise industrial action, appropriate union liability is thereby created. Such authority is explicit, and positively created under those rules.

Nothing in the proposed Section 15(3)(a) will affect a union's ability to make whatever rules it deems appropriate in connection with empowering persons to do, authorise or endorse relevant acts. It is clear on the face of the Bill that the provisions of the proposed new Section 15(3)(b), which do indeed impose some potential limitation on the effect which certain union rules might otherwise have in terms of establishing union liability, do not apply in respect of the provisions of Section 15(3)(a).

Under Section 15 as proposed to be amended, a union will remain free—as it is now in respect of arrangements made to which the present Section 15(3)(b) relate—to endow anyone with such authority. If it does so, however, it is also free to limit the authority; for example, by making it conditional on any particular person occupying a certain position or behaving in a particular way.

I can assure your Lordships that the effect of the new Section 15(3)(a) is that the union is not liable by virtue of that subsection where a person previously having the power under the union's rules to call for or to threaten industrial action, ceases to have that power.

There is, therefore, simply no need to make explicit provision as proposed by the amendment; that a relevant person would no longer have the relevant authority "in circumstances where that person has ceased to hold that authority". In such circumstances the person would automatically have no such authority. To add any such provisions could serve only to confuse matters, as was said by my noble friend Lord Renton.

In the light of that explanation, and with the assurance that the provision is included in the Bill, I hope that the noble Baroness will feel able to withdraw her amendment.

Baroness Turner of Camden

My Lords, I am grateful for the assurance but I should be much happier if the provision were written on the face of the Bill. As my noble friend Lord McCarthy has said, the problem is one of great uncertainty. The provision in subsection (3) (b) appears to instruct everyone concerned that the rules of the union should not be taken into account. The situation that I described in my opening remarks is real and likely to happen in practice. The Minister says, as he has said with a number of our amendments, that this is unnecessary. We shall have to see how it works out in practice. I am grateful for the categorical and specific assurance he has given—which we shall study carefully in Hansard—that what I am after is provided for in the Bill. The only problem I see is that if the courts have to interpret the Act, they will not necessarily take account of what Ministers said when the Bill was introduced into either House. Nevertheless, I do not intend at this stage of Third Reading to press the amendment. I therefore beg leave to withdraw it.

Amendment, by leave, withdrawn.

Clause 9 [Dismissal of those taking part in unofficial industrial action]:

Lord McCarthy moved Amendment No. 2:

Page 10, line 17, leave out ("next") and insert ("second").

The noble Lord said: My Lords, this amendment takes us back to Clause 9 concerning the employers' right selectively to dismiss any unofficial striker after what the Minister has insisted on calling a "period of grace". We have sought to argue that the period of grace is unduly short and the object of the amendment is to extend it quite marginally from one to two days.

We remind the House that the ability selectively to dismiss is something which the employer has under the terms of the Bill, irrespective of whether the individuals dismissed have done anything wrong, except to participate in the strike. The Minister laughs, but that is the point. Participating in a strike is, to the Minister, partly an object of derision and partly wrong. We say that the individual does not have to have induced others to strike. He or she does not have to be a shop steward. There is no reason on the face of the Bill—and the noble Lord, Lord Wedderburn, gave the Minister a concrete example of this in Committee—why an employer should not say, "We have had a strike today. Sack one in 20. This will discourage the others". One does not have to be guilty except of the act of striking; one does not have to be a shop steward or to persuade others to strike. The sole limitation is that one gets one working day.

When we discussed this in Committee, the Minister helpfully spelt out examples of an employer telephoning a union, demanding repudiation on a Monday; at 12 o'clock the union sends the letter to the members and on Tuesday night the period of grace is at an end. Everyone involved in that strike could, on a selective basis, be dismissed.

All the amendment says is, "Of course, you can threaten to sack people. You can threaten to sack anyone you like from the beginning of the strike. As soon as the notice goes in, you can threaten to sack anybody. But you can't dismiss them until Thursday morning rather than Wednesday morning. You can utter what threats you like, but you can't give the people their cards until Thursday, not Wednesday". We believe that that is an extremely modest and moderate amendment to ask for at this stage of the Bill.

I remind the Minister that at Report, at col. 1307 of Hansard of 23rd July, he told us quite openly that the object of the procedure on the face of the Bill is not to guarantee that the workers know that the union has repudiated the strike. In effect he said again at col. 1307 that the law is not merely concerned with whether the workers know or not. The period of grace is there to give the union an opportunity to inform the members. It is not intended to provided a guarantee.

I fully admit that the logical way of dealing with the problem would have been to propose at this stage that the date from which the period of grace counted was the date on which the individual worker received union notice of repudiation. That would be logical and sensible. If it was one day from the notice of the repudiation reaching the worker, at least one could say that if it was tight it was in a sense fair. But we know that the Minister would say that if we did that, the workers could always lose the letters. He would say, because he has almost said it before, that if we said that people could go on striking until they received the letter, all kinds of fiddles could take place.

Therefore we suggest something much more moderate than that: bearing in mind what happens with letters and the difficulty of getting in touch with members and bearing in mind that the Minister told us that it is not a guarantee, merely an opportunity, it is perfectly reasonable and more than reasonable to raise the period of grace from one to two days. I beg to move.

Lord Rochester

My Lords, at Report stage, I moved an amendment to the effect that industrial action should not be treated as unofficial before the end of the third working day after the day on which the action was repudiated by the union. Having studied the Minister's response in Hansard, I now understand a little more clearly the distinction that the noble Lord, Lord Strathclyde, then drew between the written notice of repudiation under Clause 6 and the so-called period of grace under Clause 9. I still do not altogether accept that distinction, if only because of the way in which the two clauses are inextricably linked, as I see it.

The point remains that, if communication of repudiation can reasonably be made only by post, our postal system is not so efficient that it can be relied on to deliver first class mail on the day after it is posted. It seems to me reasonable, therefore, to allow at least one further day for completion of the operation, as the amendment suggests. I therefore support it and even hope that the Minister may at this late stage in our proceedings accept it.

Lord Strathclyde

My Lords, this is territory with which we are familiar and no doubt we are fond of it. We discussed the proposal extensively at Committee and Report stages and here we are with it back at Third Reading. The noble Lord, Lord McCarthy, sought to extend the period of grace to seven days at Report stage and the noble Lord, Lord Rochester, sought to extend it to three days. This amendment would extend it from one to two days. While I appreciate that this deflationary tendency is inspired by the spirit of conciliation, I am afraid I am unable to accept this olive branch because the amendment is based on a fundamental misconception of what the period of grace is all about. The noble Lord, Lord Rochester, showed me that quite clearly in his words.

The period of grace arrangements are entirely separate from the requirements in Clause 6(5)(b) that a union must, do its best to give individual written notice of the fact and date of repudiation, without delay". I explained this in some detail at Report, but it may be helpful to the House if I go over the key points once again.

The period of grace is a device to prevent the unduly arbitrary effects that repudiation might otherwise have. Without it, those taking the action would become liable to selective dismissal from the moment that the union's executive, president or general secretary decided to repudiate the action, thus rendering the action unofficial.

The period of grace 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 industrial action which has become unofficial does not become liable to selective dismissal without the right to claim unfair dismissal until after this period of grace has expired.

It happens that one effect of these arrangements is to provide a chance, an opportunity, for the union to make whatever efforts it chooses to get the message about repudiation—and the changed status of the relevant industrial action—to its relevant members. Whether and how the union does this is entirely a matter for that union's own discretion. The vagaries of the post office—as the noble Lord, Lord Rochester, said, and no doubt my noble friend Lord Boyd-Carpenter would agree—are in this case quite irrelevant. It may well be that a union that wished to try to get the message of repudiation to its members would choose to use the most readily available means at its disposal in this electronic age.

What this House, and in particular noble Lords opposite, need to be clear about, however, is that the period of grace does not provide a guarantee—and it is not intended to, as the noble Lord, Lord McCarthy, pointed out—that employees will know that the status of their industrial action has changed and has become unofficial before they become liable to selective dismissal.

The amendment seeks to extend the presently proposed period of grace from one day to two. The Government believe that if it is to be an effective deterrent to irresponsible, unballoted unofficial action selective dismissal must be available without undue delay. To allow two 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, particularly if one takes into account that in many cases the period could be longer than two days; for instance, Saturdays, Sundays and Bank Holidays will not count towards the working day definition.

Finally, we must not lose sight of the background against which the period of grace will operate. It is reasonable to assume that a union will be repudiating a call to take unballoted industrial action. It is also reasonable to assume that, after the passage of this Bill, 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. Union members who choose to indulge in such irresponsible industrial action in future will 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 consequently dismissed.

We have given a period of grace of one full working day. Therefore I feel the amendment is misconceived and I hope that the noble Lord will withdraw it.

The Earl of Selkirk

My Lords, perhaps I could ask my noble friend one question. One awkward point with regard to industrial courts is the question of perjury. There is no way of stopping perjury because no record of any kind is taken. I wonder whether the attention of my noble friend has been drawn to that fact. I know of cases where matters have gone sadly astray. I wonder whether any departmental attention has been given to the point. I realise that it is a matter of economy, and it is a simple matter; nonetheless there is no record and therefore there can be no action with regard to perjury.

Lord Strathclyde

My Lords, as I understand it that question does not arise. We are dealing with whether a union has repudiated unofficial industrial action. There is then a period of grace between the repudiation and when the employer can take action selectively to dismiss those employees taking the action. I am not certain that my noble friend's point arises, but I shall look into it.

Lord McCarthy

My Lords, I am not surprised. Naturally one is disappointed. The noble Lord is right; we have discussed this point extensively. However, the Minister has not made any concessions or listened to the arguments. We have adjusted our claim downwards, as he said. He has never come forward. We perhaps should not complain, but today he even read the same brief. The phrases are exactly the same, except where he says—and I agree—that it is quite different when it is a question of union liability, for which there are separate provisions in Clause 6. That is quite right. When it is a question of union liability everything has to be done. Everything must be delivered by post. It is absolutely tight; the union must not be allowed to escape liability.

We accept that that is quite different. When it comes to giving the worker some kind of chance, some opportunity—not a guarantee—the position can be as loose as one likes. It is quite different. No opportunity is offered which is watertight; no chance is given which is likely to work. The noble Lord says that the union can write letters, knowing very well that they will not arrive in time. He then says that they can do something else: "Do not bother us with what it is. We are not giving a guarantee, we are giving an opportunity; we are giving a chance". Some chance!

Finally, we are told—and these are the words of the Minister—that we risk "fatally undermining" the purposes of the Bill. That is amazing. This vastly important Bill will be undermined because this critical amendment gives the poor old worker another day. What a Bill. What a clause. What a chance.

We shall not divide the House. I shall withdraw the amendment, but we are very disappointed.

Amendment, by leave, withdrawn.

12.5 p.m.

Lord Strathclyde

My Lords, I beg to move that the Bill do now pass.

During the Second Reading of the Bill, I said that—as had been the case with previous employment legislation put before your Lordships' House—I had no doubt that noble Lords would be able to make worthwhile improvements to the detail of the Bill. Although noble Lords opposite may feel that they put forward a number of what they would doubtless have regarded as improvements which the Government were unable to accept, I hope that they will nonetheless agree that that detail of the Bill has been improved in your Lordships' House.

For example, a number of small but significant changes have been made to the wording of the access to employment provisions of the Bill contained in Clause 1 and Schedule 1. Several of these resulted from constructive suggestions by an Opposition member in another place regarding a possible gap in the coverage of Clause 1. Your Lordships amended the clause in Committee so that an employer would not be able to evade his intentions by making an offer of employment but then withdrawing it when he became aware that the individual concerned was, or was not, a trade union member.

In addition, your Lordships have improved Clause 1 by making it clear that a refusal of employment occurs when the applicant is refused the employment which he seeks, thereby covering the situation where a job is offered but it is not the job the applicant wanted. Once again, a possible loophole has thereby been closed and the protection which the clause provides for both union members and non-members has been made more complete.

The Bill was also greatly improved in Committee by the addition of what the noble Baroness, Lady Turner, has referred to as the Campbell amendment. I am referring of course to what now stands as Clause 8 of the Bill. That clause will mean that in certain circumstances a union will not have to re-ballot its members, even if it first calls for the industrial action to which the ballot relates more than four weeks after the date of the ballot. In bringing forward that clause the Government were very conscious of the strength of feeling about this issue in your Lordships' House, as vividly demonstrated during the course of debates on the Private Bills introduced by my noble friend Lord Campbell of Alloway.

There was a further good example of the value of our work here just three days ago during Report stage. The Government were happy to accept an amendment to Clause 6 which reduced from six to three months the period during which a party to a commercial contract is to have the right to find out whether a union has repudiated an act which has interfered or might interfere with that contract.

I also said during the Second Reading of the Bill that I had no doubt that the general principles and aims of the legislation would meet with your Lordships' approval. I am pleased to say that in Committee, on Report and again today your Lordships have approved those principles. Your Lordships' House confirmed its agreement with the Government's view that the law should protect workers, employers and the community from abuses of trade union power. In approving the provisions of this Bill, the House has agreed measures which extend personal liberty against the closed shop and safeguarded jobs and prosperity against the threat of irresponsible industrial action. Your Lordships have supported the measures in the Bill which will reduce the scope for damaging secondary action and which can deter and discourage irresponsible unofficial action. Your Lordships' House has also approved enhancing union members' rights by adding to proceedings in scope of assistance from the Commissioner for the Rights of Trade Union Members.

I should like to express my thanks to the many noble Lords on both sides of this House who have contributed to the passage of this Bill and to the discussion on it. As with the previous Employment Bills brought for your Lordships' consideration, noble Lords have been able to bring to that discussion a wealth of relevant experience and expertise. They have made some constructive suggestions and, as I said, as a result this is a better Bill.

I was not able to respond to the kind words of noble Lords opposite on Monday when they congratulated me on my move to the Department of the Environment. I take this opportunity of doing so now. I have much enjoyed being a Minister in the Department of Employment. I have handled two employment Bills during the past two years. If I may say so, this Bill marks a further step in the popular and successful programme of industrial relations and trade union law reform undertaken since 1979. The Bill has earned its place on the statute book and I commend it to the House.

Moved, That the Bill do now pass.—(Lord Strathclyde.)

12.15 p.m.

Baroness Turner of Camden

My Lords, we have now come to the end of this rather horrid little Bill. As we have said at various stages of its progress through your Lordships' House, and as was confirmed this morning by the Minister, it is another instalment in the Government's step-by-step policy of gradually undermining trade union rights in the United Kingdom.

It is useless for us to say yet again that the Government continue to show no regard for ILO conventions or international standards in the conduct of industrial relations. The Government have repeatedly made clear that they do not care. Of course in the first clause of the Bill there is an attempt to appear even-handed in access to employment by providing for the right to belong or not to belong to a union, but the Government have made clear in the remaining portions of the Bill and in their general attitude that the right not to belong is of much greater importance to them than the right to belong.

We have had the familiar arguments about the closed shop. Without any equivocation whatever we on this side of the House have said that we accept the provisions of the European Social Charter. It contains the right to belong or not to belong; but we accept it all, whereas the Government do not accept it at all.

When discussing Clause 1 we sought to outlaw the practice of blacklisting employees - a function for which the Economic League and probably other organisations exist. We have had no success and neither have we been able to persuade your Lordships that people who suspect that they are blacklisted, and thus have their chances of employment harmed, should at least have access to the records on which blacklisting is based.

There are then the clauses about the so-called secondary or sympathetic action. Again, we have tried through amendments to produce fairer legislation. We have endeavoured to refer back to the gateways to legality that existed in the 1980 Act of this Conservative Administration, but the Government were not prepared to have even that.

One of the most complex parts of the Bill deals with the responsibility of a union for its officials, particularly where disputes are unofficial. One of the main aims of the Bill is to outlaw unofficial action, whether strike action or industrial action short of a strike. If it is to maintain its immunity from court action the union must in such circumstances immediately repudiate the action of the individuals or officials responsible for calling the action and must notify each member participating in the action in the manner that is set out in the Bill. Attempts from these Benches to clarify precisely who can be regarded as responsible—we tried again this morning—and to ensure that someone who is no longer a person with appropriate authority does not involve the union in legal difficulties have not met with success, though we have had assurances from the Minister this morning. One can only hope that the complexities of the legislation will not lead to interminable difficulties in the courts.

One of the worst features of the Bill is that for the first time it allows employers to dismiss selectively the people who are participating in a dispute instead of having to dismiss all or none, as is the present situation. The Government seem to think that some sort of anomaly existed and that they are putting it right. In fact, it is nothing of the kind. The intention of legislation in the first place was to give some protection against victimisation. An employer was not able to sort out those whom he believed were the ringleaders. Now, not only will he be able to dismiss selectively but such individuals will have no right of access to an industrial tribunal to plead unfair dismissal even if the employer has made a mistake. Such dismissed employees will therefore be in a worse position than individuals dismissed for alleged misconduct who will still have that right.

The Government have not been willing to accept amendments tabled from this side of the House urging that employers should at least give a warning to employees in that situation. Moreover, as we indicated on Report, groups of employees who do not belong to a union, who decide, for whatever reason, that they have a grievance and who walk off the job will not be regarded as unofficial strikers. Therefore, if they are dismissed the provisions relating to selective dismissal and lack of access to industrial tribunals will not apply. The restrictions on previous rights will apply only to people who hold a trade union card. What on earth do the Government think they are doing?

One of the worst features of our debates has been the Government's refusal to come to terms with the concern expressed from these Benches on health and safety issues. It is by no means clear that groups of workers who walk off a job because they feel that there is a threat to safety will not be regarded as unofficial strikers and therefore be liable to selective dismissal without access to a tribunal. Despite the assurances given by the Minister surely it should have been possible, if for no other reason than the avoidance of doubt, to have accepted one of our amendments on that score. However, the Government were not prepared to do so.

It is true that there have been a couple of concessions, one of which is quite important. There was what I continue to call the Campbell amendment, and I am sorry to see that the noble Lord, Lord Campbell of Alloway, is not in his place this morning. The amendment was introduced by the Government following the passage through this House of the Private Member's Bill sponsored by the noble Lord. Lord Campbell of Alloway, and designed to ensure that a union which has already balloted its members and against which a series of court actions have been mounted will not on that account have to ballot again if the 28 days allowed following the ballot have been eroded by the legal actions. The court will be able to extend the period. That is a very welcome concession in a field of law where it has not been customary for the Government to make concessions. We owe a great deal to the noble Lord, Lord Campbell of Alloway, whose persistence made that possible.

We also have the new duties for the CROTUM concerned with union rules, presumably because she has not so far had enough to do. However, the proposition that she should not start assisting individuals until the internal procedures of the union have been exhausted did not win acceptance, though it seems common sense not to spend public money on an investigation until that has been done.

There we have it; an unnecessary and nasty Bill with some further restrictions and further law in an area already over-complicated. I hope that we have no further laws of this kind. The Government still seem to think that unions exist solely to run industrial disputes and that when disputes occur they are always the fault of employees and never of management. The Bill is intended to deal with unofficial action, but unofficial action is often localised—a spontaneous outburst sometimes caused by management ineptitude. The union may not hear of it for some time, but when it does it will have to go through a cumbersome process of individual repudiation if it is to escape the legal consequences of the loss of its immunity. We believe that to be unfair, one-sided and unjust.

Nor do we accept the criticism often thrown at us by the Government that we on these Benches support strikes. We do not. We favour civilised means of resolving industrial disputes such as conciliation and arbitration which, judging by their record and the legislation they have already repealed, the Government do not favour. No, the course favoured by the Government is that employees should either put up with conditions or get out—the market philosophy applied to industrial relations. We, on the other hand, believe that people have a right to combine collectively to improve their lot and that in any civilised society laws should be devised to protect their right to do so. The Bill does not do that. Therefore, we cannot commend it to your Lordships.

Finally, on perhaps a slightly happier note, my thanks to the Minister for the courteous way in which he has dealt with our many amendments and handled the debate. I extend my best wishes to him when he moves to the greener fields of the environment.

Lord Rochester

My Lords, as the Bill leaves this House our attitude to it on these Benches is much the same as it was when it came here. Therefore, I shall be brief. We approve wholeheartedly of the Government's belated decision to bring the pre-entry closed shop to an end. But we regret their refusal to accept that a person should not be denied employment no more because he has engaged responsibly in trade union activities than because he is a union member. We have broadly supported the Government's decision to outlaw all forms of secondary action. Our only remaining concern is that it may still be possible for an unscrupulous employer artificially to divide his company into separately owned organisations in order to defeat what would then become secondary action.

We continue to feel that the way in which the Government are seeking to curb unofficial action may create more difficulties for management by prolonging procedures established for the purpose of resolving disputes without recourse to such action. That in turn may provoke employees to take more unofficial action rather than less. Worse, it may result in unofficial strikes escalating into official disputes legitimised by a ballot.

In our view, most objectionable of all is the unjust way in which it will now be open to employers to single out for dismissal individuals taking part in industrial action. Those individuals will be unable to claim that their dismissal is unfair. Their employers will not have to defend their action before an industrial tribunal.

So much for the Bill's detailed provisions. More generally, we on these Benches continue to feel that it is high time that the Government began to think less in terms of punitive union legislation and more of constructive measures to improve this country's industrial relations. In the debate initiated by the noble Viscount, Lord Caldecote, last month, I suggested three ways in which that might be done. Now is not the time to rehearse those once more. I mention the matter only because on at least two occasions in our discussions on the Bill I have been challenged to say why, having initially given broad support to the policies of successive Conservative Governments in the step-by-step approach to union reform introduced by the noble Lord, Lord Prior, as he now is, we have more recently come to feel differently.

The answer is that, in our view, if legislation in this field is to be effective it must strike a fair balance between the interests of employers and of employees. We believe that the last two Employment Acts and the current Bill have all failed that test. How has that come about? I suggest that one way of looking at the matter is that, over the past decade, there have been five Secretaries of State for Employment. It may be that, in appointing so many, the Prime Minister has been pursuing an enlightened policy of career development in which talented Ministers gain experience which can then be of benefit both to them and to the nation when those Ministers are asked to take on even greater responsibility.

In that case, it seems reasonable to see what actually happened to the people leaving that office. The first two were banished to Northern Ireland and the last two have left the Government in order to spend more time with their families. The current holder of the office is a Welshman. I wonder whether, like Lord Lundy, in Hilaire Belloc's cautionary tale, he will soon be told "Go out and govern all of Wales".

Having delivered myself of that little homily, in conclusion I wish to compliment the noble Lord, Lord Strathclyde, on the good humour with which he has conducted the Bill through your Lordships' House. I also thank him most sincerely for the way in which, less formally, before the Committee stage of the Bill he took the initiative in facilitating agreement between the Opposition parties and the Government concerning the procedures to be followed in our discussions. I join the noble Baroness, Lady Turner of Camden, in wishing him well in his new responsibility.

Lord Boyd-Carpenter

My Lords, the noble Baroness, Lady Turner of Camden, was quite right when she said that this Bill was a further example of the Government's step-by-step approach in dealing with trade union law. Where I differ from her and where the facts of the situation differ very dramatically from her view is the effect that we have seen over the past decade of a series of measures. The noble Baroness and your Lordships will recall that 10 or 12 years ago there was an enormous series of industrial disputes with all the drama of midnight meetings at No. 10 Downing Street, with people summoned at the last moment in the hope of averting damaging strikes. Much damage was done to our economy.

I suggest that, very largely as a result of the Government's step-by-step improvement of the relevant law, we now have an extremely good situation in respect of industrial relations. Strike action is very much less than it has been. We have done much less damage to our economy than we used to do through such actions. The facts themselves make it abundantly clear that the step-by-step approach and the steady improvements which we have made to industrial law have been a very large contributor to, if they are not the sole cause of, this great improvement.

This Bill contains some very important provisions. It spells out what many of us have pressed for for years—that is to say, the abolition of the pre-entry closed shop which is an absolutely indefensible provision. Insistence on it always seemed discreditable to the trade union movement as a whole. To suggest that a man or a woman should not be able to take a job which an employer was prepared to offer simply because he or she was not a member of a union, if looked at logically, is utterly indefensible. I am very glad to see that this Bill brings that provision to an end.

Equally, the Bill deals with perhaps the more difficult and almost equally serious matter of secondary action. Again, that seems to be very effectively dealt with by the series of clauses following Clause 3. I hope and believe that this provision will prevent a good deal of trouble of that kind. The Bill contains the provision on which the noble Baroness spent some time—that is to say, the dismissal of persons taking part in industrial action and the abolition of the all-or-none rule, as I think it was called.

It does not seem sensible that, if there is a dispute in which a number of people decide to put their jobs on the line by taking industrial action, the employer should be faced with the dilemma that he has to sack all the employees or none. It may be that there often are some whose work is so valuable to the employer and to the industry in which they work that, though misbehaviour is taking place, the employer does not wish to lose their services. I do not see why he should. If a contract of employment, which is an individual matter between an employer and an employee, is broken, I do not see why the employer should be able to act in respect of that only if he acts in respect of all of them. That has always seemed to be a wholly indefensible provision. Here again the Bill makes a considerable improvement.

I do not want to go over all the debates we have had on the Bill, but I want to say that the Bill is a most valuable contribution to the working of our economy through improved industrial relations. I wish it extremely well on its progress. I should also like to join other noble Lords in congratulating my noble friend Lord Strathclyde on the way in which he conducted the passage of the Bill. The tact, resourcefulness and knowledge, and where necessary firmness, which he showed contributed to the Bill having—I will not say an easy passage—a much easier passage than previous measures of this kind have sometimes had. That owes a great deal to him. He leaves the Department of Employment with an extremely good reputation behind him. He will be missed there and the Department of the Environment is jolly lucky to have him.

12.30 p.m.

Baroness Seear

My Lords, I am sure the noble Lord, Lord Boyd-Carpenter, will agree that, although a step-by-step approach may have been quite useful up to a certain point, one does not necessarily have to go on walking indefinitely in the same direction, which is what the Government seem determined to do. As my noble friend Lord Rochester said, we on these Benches supported a good many of the Government's first steps. There was no doubt that trade union power had gone far too far and that the Labour Government had completely failed to put the kind of curbs on trade union power that were needed. Therefore, in the initial stages, we supported the Government's approach. But the Government would be very well advised to call a halt to these steps.

Important and necessary changes have been made but the Government must recognise that freedom of association is a fundamental human right. Freedom of association in industrial matters is meaningless unless there is a real right to strike to back it. There is not much point in association if at the end of the day people cannot say that they refuse to accept the conditions and are therefore out on strike. For my part, I should like to see a proper right to strike rather than the cumbersome procedures which, for historical reasons, we have adopted in this country.

I put it strongly to the Government. The noble Lord, Lord Boyd-Carpenter, says that there has been more industrial peace over recent years. Some of that, I have no doubt, is due to the legislation. I am sure the noble Lord really will accept that some has undoubtedly been due to the industrial situation and the shortage of jobs until very recently. People do not go on strike when there are no jobs to be had. It is foolish of anyone to claim that the improvements that have taken place are wholly the result of the legislation. The legislation has helped, but that is by no means the whole story.

What about industrial relations in the future? The Government are confident of moving back to a position of full employment. They also recognise the tough competition that we are up against. We shall not win these competitive battles in the world unless we have good industrial relations in this country. Good industrial relations are not brought about by sniping repeatedly at trade unions. I do not know whether the Government have it in their mind that they can run in an industrial country a system of industrial relations without responsible and co-operative trade unions. By "co-operative" I mean trade unions which are prepared to fight when it is right to fight, but which do not fight when it is unnecessary so to do and there are better means of achieving solutions to problems.

The Government will not get the kind of trade unionism that is essential under full employment, and is essential if they are to have a sensible approach towards pay and sensible controls over excessive pay claims, if the trade unions feel that the Government are out to wing them on every possible occasion and to do them down in every way they can. The Government are building up industrial relations troubles in the future that will be very disadvantageous for all those causes which the Government seek to promote and which we in many ways also wish to promote.

Lord McCarthy

My Lords, thanks and congratulations are in the air and I do not wish to depart from those sentiments. I should like to congratulate the Minister on three counts. First, I congratulate him on the gallant way in which he stood alone on the burning deck. In previous engagements in this House on industrial relations legislation the Government were tempted to change the watch now and again. But the noble Lord has been there, bowling away from the gasometer end, all the way through the proceedings on the Bill. All the Government answers have been his own work, subject to the flow of paper from time to time. I congratulate him on that count.

Secondly, I congratulate him on the fact that several times the Government saw sense. The noble Lord listed all the times when they accepted certain arguments that we put. They could have made it much more sensible if they had accepted rather more. In the case of the amendment of the noble Lord, Lord Campbell of Alloway, which I think was the finest, the best and most significant concession made on the Bill, they could have accepted it somewhat earlier when the noble Lord, Lord Campbell of Alloway, introduced his Bill It was not for us to lead at the Minister all the things that he said on those occasions: it was for us to thank him for what he had done.

Thirdly, I congratulate him on escaping as he has done to the soft pastures of poll tax revision. It is quite true, as the noble Lord, Lord Rochester, said that his career development continues apace. He is not yet sent back to his family, and we hope that he will not be for some time. However, as he packs his bag and moves north in the direction of Marsham Street, we are left with what he has done and what his friends have done in Tothill Street. I must say that the arguments he put forward today seemed to have changed somewhat from the arguments he put forward at Second Reading.

At Second Reading the Minister spoke a good deal about the way in which the Bill would continue what he called the transformation of the economy, begun by the six previous sons of Frankenstein. We did not hear so much about that today. He did not tell us how it would help to reverse falling productivity and rising prices. He did not say how it would help to reverse—the noble Lord, Lord Boyd-Carpenter, referred to strike figures—the fact that in the past four years the number of working days lost has increased from 2 million to 4.1 million. That claim has not been made by the Minister today. What he has tended to do is to go back over the ground over which he went at the time of the Committee stage of the Bill and to focus on unofficial strikes.

The way in which the Government have focused in this Bill on unofficial strikes is remarkable. Most people in industrial relations would say that the problem today is official strikes in the public sector. That is why the number of working days lost has risen in the past four years. It has not been because of unofficial strikes and it has certainly not been because of unofficial strikes across the board—in the private sector. There are now fewer unofficial strikes than at any time since 1935. In case the noble Lord, Lord Boyd-Carpenter, thinks that it has anything to do with the legislation, the number has been falling since 1971.

The number has been falling at roughly the same rate since 1971. Indeed, if one takes into account the number of union members per strike, the number of strikes is about what it was in 1927, the day after the general strike when we had an unemployment rate of 10 per cent. We do not have a problem of unofficial strikes. The Government are not really suggesting that we do. They certainly did not put any examples before us in the Green Paper. There have been 12 examples over five years—and in only two cases in the Green Paper did the Government suggest that the unions concerned had not done all they could to settle those strikes.

Therefore, we must return to the questions which we asked the Minister, particularly on Report. I should like to repeat four of them because they all relate not so much to what the Bill is trying to do but to how well, precise and effective it is.

First, we do not know—and the Minister has not told us—what the legal position is of a union which links endorsement to a ballot. We want to know whether a union is entitled to delay repudiation in order to have a lawful ballot. That is a perfectly reasonable action for a union to take. However, we do not know whether it is legal. Secondly, we do not know where at one point undue pressure in an area involving safety and unsafe conditions is established. We do not know when the situation slides out of being considered due pressure. Thirdly, we still do not know what is the purpose and effect of the word "call" in Clause 6. The Minister has not explained this to us. Fourthly, we do not know why people cannot have two days in which to repudiate.

The fact is that the Government are tired. Indeed, they are almost as tired as we are by the legislation. That is why year by year when they sit in Tothill Street trying to discover another damage limitation exercise, the Bills get sloppier and the words become vaguer. Even the Government's advisers have had enough of this legislation. When the Minister goes off to Marsham Street, he leaves us with this deposit.

Lord Renton

My Lords, surely one of the Government's greatest achievements is what we have done over the past 10 years by way of restoring democracy within the trade unions and declaring the rights of trade union members. I hope that those concerned will not mind my drawing attention to this fact, but the Liberal Democrat Party, so ably represented by the noble Lord, Lord Rochester, and the noble Baroness, Lady Seear, has tried to explain and excuse its change of attitude by saying—if I understand the arguments correctly, which I do not always find easy—that it is necessary to obtain a good balance between the rights of employers and employees. But this Bill does just that. This can be seen if we look at the plain words of the first two lines of Clause 1 of the Bill. It is worth emphasising this point and putting it on record. The clause begins with the words: It is unlawful to refuse a person employment— (a) because he is, or is not, a member of a trade union". That is a plain statement of the law and of what it should always have been. The Government deserve credit for that, as well as for other provisions in the Bill.

The noble Lord, Lord McCarthy, drew what I thought was a surprising conclusion from the fact that there are now fewer unofficial strikes. He said that there is no problem now as regards unofficial strikes. I am glad to say that that seems to be more broadly so. However, why is it so? Surely it is thanks to the results of our previous legislation.

Lord McCarthy

My Lords, if that is the case, how does the noble Lord explain the fact that the number of strikes has been falling since 1971? Indeed, it has fallen through both Labour and Conservative Governments at more or less the same rate. The only escalation which occurred was in 1980 when there was no legislation from this Government on the statute book. Ever since that time it has fallen at much the same rate, long before any of this legislation was heard of.

12.45 p.m.

Lord Renton

My Lords, I hope that I do not have to take up too much of your Lordships' time by reminding the noble Lord of the appalling circumstances which existed especially in the years from 1976 to 1978. They were years in which through the efforts of one man—namely, "Red Robbo"—the nationalised British motor industry was said to be losing about £2 million a day. I mentioned this during a debate some years ago and, in any event, it is all on record. It is quite absurd to attribute the fall in unofficial strikes to something which happened before we came into power. It is due to the results of our legislation; there is no doubt whatever about that fact.

I should like to join in the congratulations expressed to my noble friend Lord Strathclyde and to wish him well in his next appointment. On a personal basis, I should like to add that in my view the noble Baroness, Lady Turner, also deserves great credit. She really played a valiant part in the proceedings. She made herself very clear and always did so in moderate terms. As we are paying tribute across the Floor of the House, as I said, I believe that she deserves much credit.

The only other point I should like to make about the Bill is that necessarily all legislation is experimental. Even our earlier legislation was experimental within this subject. The Bill has clarified and amended the law in various detailed ways which were necessary, as well as achieving certain advances in principle. For that, too, we should be grateful to the Government.

Lord Strathclyde

My Lords, perhaps I may briefly thank all noble Lords who have spoken in this debate. I should like to thank them especially for the kind words which were directed towards me personally.

On Question, Bill passed, and returned to the Commons with amendments.