Lords Sitting of 26 April 1993

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
PrayersߞRead by the Lord Bishop of Worcester.
Lord Rodney Lord Rodney ߞ Sat first in Parliament after the death of his father.
Viscount Massereene and Ferrard Viscount Massereene and Ferrard ߞ Sat first in Parliament after the death of his father.

The Lord Chancellor: Leave of Absence
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, before the commencement of business, I take the opportunity to inform the House that with the approval of Her Majesty the Queen I am to attend the Commonwealth Law Conference in Nicosia, Cyprus between the dates of Tuesday 4th May and Friday 7th May 1993. Accordingly, I trust that the House will grant me leave of absence from Tuesday 4th May to Thursday 6th May 1993.

Russian Commemorative Medal
Lord Williams of Elvel Lord Williams of Elvel asked Her Majesty's Government:
Whether British servicemen' who received the Russian commemorative medal in recognition of their service to the Russian war effort are allowed to wear it and, if not, why not.
Viscount St. Davids: My Lords, the Russian commemorative medal can be accepted as a souvenir only and is not to be worn. Permission to wear a foreign award is not normally given if it is offered more than five years after the event it commemorates or if an official British award has been instituted for
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the same period of service. The Russian commemorative medal was not instituted until 1985, and the contribution of British servicemen to the Soviet war effort had already been recognised by the award of the Atlantic Star.
Lord Williams of Elvel: My Lords, I thank the noble Viscount for that Answer, which will come as no surprise and yet will be a deep disappointment to the Royal Naval Patrol Services Association. Is the noble Viscount aware that escorting convoys to Russia during the Second World War required enormous bravery, courage and hardiness and that anything that anybody can do to reward the people who performed that essential service, who for obvious reasons are now coming towards the end of their lives, should now be done? Would the noble Viscount further accept that it was, in fact, the Foreign and Commonwealth Office which imposed restrictions on the wearing of this medal, not the Soviet authorities?
Viscount St. Davids: My Lords, I am sure that your Lordships' House will concur with the noble Lord's assessment of the bravery of those involved in the campaign. However, after World War II more than 50 different nations, including the United Kingdom, instituted awards and medals for campaign service in that war. In 1946, agreement was reached between the allied nations that there would be no interchange of campaign awards between countries as each nation would have instituted its own campaign stars and medals for particular periods of service.
Lord Mason of Barnsley: My Lords, first, is it not a fact that the Russians decided in 1985, the 40th anniversary of the last war, that these men should be recognised and a commemorative medal was struck to which about 12,000 men are entitled? Is it not also a fact that if they receive the medal, they wear it on suits—on mufti—and not on a military uniform? How can the Ministry of Defence object to that? Secondly, what are the views of the Royal British Legion? Do not its members want to see their comrades wear this medal alongside their other campaign medals? Finally, is it

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not an insult to the nation concerned that, having recognised our men for their gallantry during the last war, its medal cannot be worn publicly?
Viscount St. Davids: My Lords, the Government believe that a multiplicity of medals can only cause confusion and will lower the perceived value of those which are authorised by the sovereign in the eyes of both the recipients and the nation.
Lord Mayhew: My Lords, is the noble Viscount aware that his attitude towards these elderly and brave war veterans must strike many noble Lords as ungenerous? Does he agree that, although perhaps 50 allied governments agreed about not wearing other nations' commemorative medals, this medal has a unique feature—namely, the extremely grudging attitude of Stalin and his government towards the bravery of these people at the time? It may well be most appropriate that the new Russian Government should wipe that out by a commemorative medal such as the one that they are now offering.
Viscount St. Davids: My Lords, I would draw your Lordships' attention to the regulations which govern the wearing of medals. They emanate from the Foreign and Commonwealth Office. Part A of the regulations pertains to those who are in the service of the Crown. Those people are obviously covered by the disciplinary Acts. Part B governs the wearing of medals by those who are not in the service of the Crown. Clause 1 states:
"It is The Queen's wish that Her Majesty's subjects should not accept and wear the insignia or any such Order or decoration without Her Majesty's permission".
We believe that the integrity of campaign medals will be maintained only if their authorisation and subsequent issue remain the prerogative of the sovereign.
Lord Boyd-Carpenter: My Lords, is my noble friend aware that, while I do not dispute his decision on the basis of the present regulations, those regulations appear to be unduly restrictive and in the case of those who faced all the risks and dangers of the Russian convoys and received a very proper reward from the Russian Government an exception should be made? If such an exception is contrary to the regulations, would it not be a good thing to amend them?
Viscount St. Davids: My Lords, it would be proper if I were to bring this matter to the attention of my right honourable friend and to express your Lordships' views to see whether it is possible to bring about some amendment to the restrictions.
Lord Ennals: My Lords, I greatly welcome the Minister's reply. Will he consult some of the organisations, such as the Royal British Legion, of which I am proud to be a member, to see what they feel about this matter? This period after the end of the cold war when we can search for ways of paying credit to one another would surely be a good time to reconsider the issue.
Viscount St. Davids: My Lords, I shall bring the noble Lord's comments to the attention of my right honourable friend.
Lord Mowbray and Stourton: My Lords, is not it true that after the last war the French Government, at various times, awarded medals to British citizens for their great services to the allied cause during the Second World War? Those medals were always accorded acceptance by the Monarch through the Government. That is a point worth thinking about when considering this matter.
Viscount St. Davids: My Lords, we should not confuse medals which are awarded for gallantry and services and campaign medals.
Lord Molloy: My Lords, I am very close to the Royal British Legion as I am president of the metropolitan area. We greatly welcome the Minister's reply. We believe that any British serviceman or woman, wherever they have served in the interests of our country, should be proud to wear whatever medals they have, and, what is more, the Government should congratulate them.
Viscount St. Davids: My Lords, the noble Lord's connection with the Royal British Legion is well known to your Lordships' House. Again, I shall refer his comments to my right honourable friend.
Lord Grimond: My Lords, does not the ruling in this matter go back to a rather casual remark made by Queen Elizabeth, who said:
"My dogs shall wear no other collars but mine own"?
Is not that wholly inappropriate now? Everyone is glad that the noble Viscount will raise this matter, because the restriction is clearly out of date.
Viscount St. Davids: My Lords, I am afraid that the comments of Her Majesty Queen Victoria do not lie within my brief.
Noble Lords: Queen Elizabeth!
Lord Williams of Elvel: My Lords, I thank the noble Viscount for his response. He has summed up the feeling of the House extremely well. I greatly hope that his right honourable friend will pay particular attention to the views that have been expressed on all sides of the House and will make the change in the regulations that the noble Lord, Lord Boyd-Carpenter, suggested.

Prescription Charges
2.47 p.m.
Lord Molloy Lord Molloy asked Her Majesty's Government:
What is the annual revenue to the Department of Health from prescription charges for the latest period for which figures are available; and how much of that revenue is spent on the administration of the prescription scheme.
The Parliamentary Under-Secretary of State, Department of Health (Baroness Cumberlege): My Lords, it is estimated that £338 million will be raised

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from prescription charges in the current year. It is not possible to identify the exact cost of collection, but we believe it to be minimal.
Lord Molloy: My Lords, I thank the Minister for that Answer. I acknowledge the difficult situation with regard to prescription charges. Will she say, for example, whether general practitioners are meeting their immunisation targets? Are many people going to the chemist to collect various forms of medicament only to find that they cannot afford them when they know the cost? Should not such things be looked at? The pharmaceutical industry earns a great deal of money overseas for Britain, which is good for the NHS and the Treasury. Nevertheless, should not its price regulation scheme be reconsidered to bring it into line with everyone's efforts to help the NHS?
Baroness Cumberlege: My Lords, the Government are well aware of the contribution which the pharmaceutical industry makes to this country's balance of payments. Vaccination and immunisation rates have never been higher. That says a lot for the Government's scheme of incentive payments for GPs to reach their targets. For those people who cannot afford to pay for medicines, there are some very comprehensive exemption schemes available.
Lord Mellish: My Lords, will the Minister be good enough to confirm or deny the reports which have appeared in the local and national press stating that some pharmacists are going out of business because the Government intend to challenge the present rate of charges?
Baroness Cumberlege: My Lords, a fundamental review is going on at the moment concerning pharmacists' remuneration and the way medicines are dispensed. I think that the present fears will prove to be unfounded.
Lord Bruce of Donington: My Lords, despite the many exemptions and allowances being made in respect of these charges, is the Minister aware that the point has been reached where the charges are extortionate and a public scandal?
Baroness Cumberlege: My Lords, 80 per cent. of all items dispensed by pharmacists are free of charge. We have no evidence showing less use of medicines due to the increase in charges.
Lord Ashley of Stoke: My Lords, is the Minister aware that there are always people just above the poverty line and that they are always being hit? The increase in prescription charges is yet a further blow. Those people are not poor enough to qualify for the Government's inadequate exemption scheme but they are too poor to pay for medicines. Therefore, their suffering will be exacerbated. Will the Government please recognise that prescriptions are not a dispensable commodity and that sick people must have medicines, which should be affordable by everyone?
Baroness Cumberlege: My Lords, I cannot accept what the noble Lord says. People who receive either income support or family credit, men aged over 65 and
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women aged over 60, children under the age of 16, students in full-time education, pregnant women and women who have had a baby during the previous 12 months, war disablement pensioners and people who suffer from certain medical conditions, are granted remission of charges. That is a very comprehensive exemption list.
Lord Ennals: My Lords, will the Minister give two other relevant figures? Will she give the amount of savings expected from the new 10-item limited list announced in November? Secondly, will she say how much is expected to be saved as a result of the instruction by the Secretary of State to the NHS executive to make savings on treatments which in future will not be available on the National Health Service?
Baroness Cumberlege: My Lords, it is impossible to say how much money will be saved by the new selected list since the advisory committee has not yet decided on the medications which will be included. However, I wish to remind your Lordships that the money which accrues from prescription charges alone is enough to buy 88,000 hip replacements or 57,000 coronary artery bypass grafts. Without that money the National Health Service would be much the poorer.
Lord Stallard: My Lords, will the Minister comment on reports that old age pensioners in receipt of free prescriptions will in the near future be charged for their prescriptions based on new means test procedures?
Baroness Cumberlege: My Lords, the Government at this moment have no plans to introduce such a scheme.
The Countess of Mar: My Lords, does the Minister agree that the vast majority of prescriptions are issued to people over the age of 65 and that it has been estimated that approximately 40 per cent. of hospital admissions of the elderly are due to adverse drug reactions? Does she further agree with the large body of opinion which suggests that there is a great deal of overprescrihing for the elderly? Will she say what procedures the Government are taking to ensure that there is no such wastage?
Baroness Cumberlege: My Lords, the Government have invited family health service authorities to introduce a scheme to give advice to GPs on prescribing. That is already having some effect. I agree with the noble Countess that there is not a pill for every ill. I believe that the general practitioners should look more carefully at their prescribing habits.
Lord Desai: My Lords, will the Minister confirm that the rise in prescription charges is 12 times that of the rate of inflation? Will she also confirm that although £339 million is a lot of money it is one-third of what the internal market set-up has cost the National Health Service? Should not the Government be economising where economies are more necessary rather than through prescription charges?
Baroness Cumberlege: My Lords, it is the duty of every Government to try to hold down costs.

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Although the increase in prescription charges has been higher than the rate of inflation it has not been higher than the rate of increase of the drugs bill. During our recent debate I welcomed very much the support of the Opposition Front Bench for the selected list.
Lord Molloy: My Lords, is the Minister aware that the ABPI says that there is a danger of cheap drugs driving out efficient and expensive drugs, which could threaten research and lead to a deterioration in patient care? Will those issues be taken into consideration?
Baroness Cumberlege: My Lords, that is very much the purpose of the advisory committee which will be considering the issue.

Clean Coal: R&D
2.56 p.m.
Viscount Hanworth Viscount Hanworth asked Her Majesty's Government:
Whether, in view of the importance to some countries of generating electricity from coal, they would support an international approach to research and development of clean coal solutions; and whether they have taken action to this end.
The Parliamentary Under-Secretary of State, Department of Trade and Industry (Baroness Denton of Wakefield): My Lords, the development of clean coal technologies is a global issue and my department is already supporting 30 projects involving United Kingdom and overseas companies, the European Community, the International Energy Agency and the United States.
Viscount Hanworth: My Lords, I thank the Minister for that Answer. Does she consider that the coal-topping cycle is the most likely to be successful and that, if so, funds will be required for a demonstration plant? Secondly, will the Minister explain the position on the research which is being carried out in the United States?
Baroness Denton of Wakefield: My Lords, a substantial part of the additional £12 million of new money for coal research announced in the coal White Paper will be spent on the key components of the topping cycle because it is viewed as being of great importance. However, during the review my honourable friends had close discussions with a number of companies about the level of support required for demonstration projects. It was clear from those discussions that in the present market conditions none of the projects was economic. In view of the fact that such a plant would therefore not materially affect the number of coal mines kept in operation in the United Kingdom during this decade, it was considered inappropriate to spend public money in that area. I assure the noble Viscount that we are working extremely closely with the United States, where there is a memorandum of understanding. Its work in this field is advanced and the benefits will come to Britain in due course.
Lord Mason of Barnsley: My Lords, is the Minister aware that, as regards cleaner coal power station technology, we began development on the fluidised bed, especially at Grimesthorpe near Barnsley, in which other nations participated and gave financial help? Do I now take it that Her Majesty's Government have withdrawn their support from the development of fluidised beds and that the research has gone abroad? What is the latest position?
Baroness Denton of Wakefield: My Lords, I am delighted to confirm the noble Lord's remarks. Much work was done in developing technologies to improve the efficiency of coal utilisation. Indeed, during the past 10 years the United Kingdom public sector, with support from the European Community, invested more than £1 billion in that area. Currently the DTI is involved in 60 projects with a contract value of about £120 million. Those are assessed on values coming forward.
The Earl of Halsbury: My Lords, does the Minister agree that the problem is not to find a clean coal solution but to choose between a substantial number of different clean coal solutions in order that, in making haste slowly, we shall not pay too high a premium for prototype development?
Baroness Denton of Wakefield: My Lords, as usual the noble Earl puts the issue in an extremely straightforward way.
Lord Dean of Beswick: My Lords, the Minister will have noticed that the noble Viscount's Question is about the international rather than the domestic clean coal situation. Is the Minister aware that the last time on which there was a full debate on energy in your Lordships' House, the figure quoted for the increase in coal-fired power stations internationally, taking into account China, was enormous? I hope that the Government will continue to press for international agreement for cleaner power stations, otherwise we shall fall behind and not move forward, as we should all like to do.
Baroness Denton of Wakefield: My Lords, I thank the noble Lord, Lord Dean, for that question. The size of the issues is such that they must be played on an international platform. I am delighted to confirm that we have 30 joint contracts.
Lord Ezra: My Lords, in the recent coal review the implications were that the Government would not agree to finance any major demonstration plant in clean coal technology in this country. Does the noble Baroness agree that other countries would be left to develop those technologies? As it is a matter of such great importance to the British coal industry and one about which the coal review was concerned, is that not regrettable and should we not make greater efforts in that regard?
Baroness Denton of Wakefield: My Lords, I believe that the noble Lord, Lord Ezra, misunderstands the situation when he says that we are not making efforts.

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We are indeed making efforts. We are collaborating internationally, which means that we do not waste taxpayers' money.
Lord Peston: My Lords, to pursue the international theme raised by my noble friend Lord Dean, I should like to ask the noble Baroness whether we realise the scale of the problem. If the Chinese communist state becomes remotely economically successful and, for that matter, if the Soviet economy gets going again, both countries will go forward using conventional coal technology. Am I not right to say that the consequences for atmospheric pollution are massive compared with anything which is happening in this country? Is the international collaboration to which the noble Baroness referred on a scale which will save the environment or shall we not be saying simply that it is too late and that the damage has been done?
Baroness Denton of Wakefield: My Lords, the noble Lord, Lord Peston, draws attention to an extremely important point. While looking at the clean coal technology, about which the noble Viscount asks, the Government are looking at options, recognising that environmental issues will move forward extremely quickly. My honourable friend the Minister of State for Energy will visit the United States in the near future to discuss further the size of the issues we face. I assure the noble Lord that we do not underestimate them.
Lord Peston: My Lords, I should like to put on record a further point. The problem is—
A noble Lord: Question!
Lord Peston: My Lords, perhaps the noble Lord will hold his horses and wait to hear what I have to say.
A noble Lord: Thirty minutes!
Lord Peston: My Lords, I am well aware of that but it is not this Question which has taken up the time. The more that the noble Lord interrupts me, the longer it will take for me to ask my question, which I shall ask. Is not the central point that new technology will be more expensive than existing technology? Therefore, there is no reason to believe that the main users will use it.
Baroness Denton of Wakefield: My Lords, the development of new technology obviously concerns itself with costs as well as environmental issues. It is important that we share those with all our partners.

Caledonian Pine Forests
3.4 p.m.
Lord Campbell of Croy Lord Campbell of Croy asked Her Majesty's Government:
Whether they support the proposal to recreate the Caledonian pine forests of Strathspey and Mar contained in the report Common Sense and Sustainability: A partnership for the Cairngorms by the Cairngorms Working Party appointed by the Government.
The Minister of State, Scottish Office (Lord Fraser of Carmyllie): My Lords, my right honourable friend the Secretary of State for Scotland announced on 26th March that he would be consulting publicly on the recommendations made to him by the Cairngorms Working Party. The consultation period ends on 30th June and no announcements will be made until Ministers have had the opportunity to consider the responses received during the consultation period.
Lord Campbell of Croy: My Lords, I am grateful to my noble and learned friend for that reply. Do the Government agree that the present remaining fragments of the original forests provide important natural habitats and that the proposed regeneration would enhance the attractions and facilities of the Cairngorms area while increasing local employment in forestry?
Lord Fraser of Carmyllie: My Lords, that is indeed so. As a consequence of sharing that view, we already support the regeneration of native pine woods by providing for higher grants under the woodland grant scheme. In that connection, we should clearly wish to pay the closest attention to the recommendations of the working party on the regeneration of the Caledonian pine forests and the creation of new forests in Strathspey and Mar.
Lady Saltoun of Abernethy: My Lords, to what density per hectare is it considered necessary to reduce the red deer population in order to permit natural regeneration of the Caledonian pine forests? Do the Government believe that it would be practicable to reduce the red deer population to that extent?
Lord Fraser of Carmyllie: My Lords, while I cannot give the noble Lady a precise answer in terms of the reduction, as is implicit in her question, it is quite clear that significant efforts must be made to cull, in particular, the hinds. For that reason we support fully not only the efforts of the Red Deer Commission but we support also private estates in their endeavours.
Baroness Nicol: My Lords, will the Government pay particular attention to the recommendation in the report about the possible over-use of access roads, especially on the high ground? Can we be assured that, whenever practically possible, limitations will be placed on the use of tractor vehicles on high ground? Will the Government take on board that the excessive use of four-wheeled vehicles now being made by members of the public is causing a great deal of damage in England and Wales? Will the noble and learned Lord assure us that, if possible, that danger will be diverted from the Cairngorms?
Lord Fraser of Carmyllie: My Lords, the report makes some interesting and important recommendations in that regard. For example, it discusses fully the concept of the long walk in to ensure that there is regulation of access. It makes also a number of observations with regard to that part of the Cairngorms which are accessible both by way of the ski road and the ski lift. All I can say at present is that there are clearly strong views on this matter and there

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is a conflict of interest. I hope that all those who have views will make their representations during the consultation period.
Lord Campbell of Croy: My Lords, is my noble and learned friend aware that there could be one drawback, to which I must admit; namely, that extending those forests could provide habitat for the unpopular highland midge? In those circumstances the need to encourage its natural enemies will be even more important.
Lord Fraser of Carmyllie: My Lords, I suppose that any plan to revert land to its natural state carries such a risk. However, for all kinds of reasons it is clearly desirable that the original Caledonian forests should be restored in so far as it is possible.
Lord Carmichael of Kelvingrove: My Lords, I am grateful to the noble Lord, Lord Campbell of Croy, for raising this matter. This extremely good and far-reaching report has been well received in Scotland. It makes possible a much more structured management of the Cairngorms. The Minister said that the consultation period would conclude at the end of June. Is he aware of the suggestion in today's Glasgow Herald that an interdepartmental working party of officials only will report soon? Will that impede the possibility of the public report being able to influence the Minister? The suggestion is that the interdepartmental committee may propose privatisation. I hope that the Minister will remember the debate that we had some two weeks ago when about 20 noble Lords who took part were solidly against the idea of privatisation?
Lord Fraser of Carmyllie: My Lords, in considering our response to the Cairngorms Working Party, we must bear in mind what is similarly offered to us by way of that internal review. However, it would be wrong for me to anticipate either at this stage.

Business
Lord Hesketh: My Lords, it may be for the convenience of the House to know that the Report stage of the Trade Union Reform and Employment Rights Bill will be adjourned at about 7p.m. for about one hour and that during this adjournment the Second Reading of the Local Government (Overseas Assistance) Bill will be taken.

Trade Union Reform and Employment Rights Bill
3.10 p.m.
Report received.
Clause 1 [Election scrutineer to check register]:
The Parliamentary Under-Secretary of State, Department of Employment (Viscount Ullswater)The Parliamentary Under-Secretary of State, Department of Employment (Viscount Ullswater) moved Amendment No. 1:
Page 2, line 27, after ("day") insert ("before the day").
The noble Viscount said: My Lords, I must say that it is pleasant to start the proceedings with a
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government amendment that not only reflects the view that the noble Lord, Lord Wedderburn, expressed in Committee on the subject but, indeed, one that replicates exactly the wording used in the amendment he tabled at that stage.
As noble Lords will be aware, Clause 1 of the Bill provides that the terms of appointment of a scrutineer appointed to oversee the conduct of a union election ballot must enable him to inspect the union membership register either of his own volition or in response to a request made by a union member or candidate during the "appropriate period". The appropriate period is defined in the clause as the period beginning with the first day on which an individual may become a candidate (or on the scrutineer's appointment, if later), and ending with the day on which the scrutineer makes his report to the union. Schedule 1 and Clause 4 make identical provision in respect of political fund and merger ballots respectively.
The noble Lord, Lord Wedderburn, tabled an amendment in Committee to provide instead that the appropriate period would end on the day before the day on which the report is submitted. At the time I accepted his argument, widely supported in this Chamber, that the scrutineer might need a final day in which to complete his report, free of the obligation to consider any requests to inspect the register on which he would then be obliged to report.
We certainly wish to ensure that the scrutineer's report could not be continually delayed by late requests, possibly even mischievous ones, from members. I think that the amendments meet the concerns expressed by noble Lords in Committee. I beg to move.
Lord McCarthy: My Lords, on behalf of those of us on this side of the House I should like to thank the noble Viscount for tabling the amendments. As he said, they are precisely what my noble friend moved in Committee. I do not know whether this is a complete and utter precedent in the 12 years in which we have followed such Bills. However, it comes fairly close to it. Let us hope that it is an encouraging sign for what will follow during the rest of the week because, of course, all our amendments are equally reasonable.
Lord Rochester: My Lords, I too am glad that the noble Viscount has been as good as his word in moving the amendment and in meeting the very valid point made by the noble Lord, Lord Wedderburn. I welcome the amendment.
Lord Wedderburn of Charlton: My Lords, I should like very briefly to thank the Minister. Like my noble friend, I hope that this is how we will proceed for the rest of the afternoon.
Viscount Ullswater: My Lords, I am grateful for the comments of all noble Lords. I commend the amendments to the House.
On Question, amendment agreed to.
Schedule 1 [Political fund ballots]:
Viscount Ullswater Viscount Ullswater moved Amendment No. 2:
Page 67, line 42, after ("day") insert ("before the day").
On Question, amendment agreed to.
Clause 4 [Ballots for union amalgamations and transfers of engagements]:
Viscount Ullswater Viscount Ullswater moved Amendment No. 3:
Page 6, line 34, after ("day") insert ("before the day").
On Question, amendment agreed to.
Clause 5 [Ballots for union amalgamations and transfers of engagements: notice and voting papers not to include influential material]:
Baroness Turner of Camden Baroness Turner of Camden moved Amendment No. 4:
Page 11, line 24, at end insert ("but may be accompanied by a statement, not exceeding 200 words, explaining the main provisions of the Instrument of Transfer or Amalgamation."
The noble Baroness said: My Lords, as noble Lords will recall, Clause 5 says that when a union ballots its members on a merger or a transfer of engagements it may not send anything else with the voting paper. We discussed the clause very carefully in Committee and we on this side sought, unsuccessfully, to move an amendment which would at least let the members of a union know what their leadership thought about a proposed merger at the time that the ballot papers were sent out.
As we know, the clause was added to the Bill at a very late stage. It apparently arose because some complaints were made by, I think, only three people in the recent ballot to form Unison, the new public sector union. The individuals do not appear to have utilised the procedures open to them of appealing to the certification officer, but simply complained to their MP. On that very slender basis, the Government proposed to legislate.
On Second Reading, I said that when I first saw the clause I thought that the Government had gone a bit dotty. That is still my view. I cannot see why it should be regarded as some kind of right that information should be withheld from members unless the union agrees to double the expenditure in which it is being involved in carrying out the ballot in the first place. We were told by the Minister in Committee that there was nothing to prevent a union sending out material so long as it does not go with the voting papers themselves. But it is at the point of voting that people actually want information.
Moreover, I can recall the intervention by the noble Earl, Lord Harrowby, at col. 1388 of Hansard in Committee on 16th March, when he pointed out that members of Lloyd's frequently receive
"sheaves of papers and voting papers in the same envelope".
The case is similar with trustees. I am a trustee of a small scheme and recently voted on a change of rules. In the same envelope, and perfectly properly, I received information about the background plus a resolution which had been approved by a meeting of members.
I do not understand why it is necessary to treat unions so differently—although perhaps I do. In the years that I have spent in your Lordships' House, and looking back at previous Bills with which I have been involved, I have come to understand that there is a basic hostility towards anything to do with unions. It seems to me that the Government want to make life as
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difficult for them as possible. Of course, one means of doing so is continually to introduce legislation on the slightest pretext which will make union administration more complex, difficult and also more expensive.
Another way is to prevent unions becoming stronger. One of the ways in which unions have been strengthening their position during the recession has been by amalgamation. At one time, all the pundits, including those on the government side, seemed to think that that was a good idea. But, again, along come the Government equipped with three complaints to an MP attempting once again to change the law. I should have thought that three was not significant, given the thousands of members who participated in the Unison ballot.
We failed in Committee with what I thought was a reasonable amendment. But I still believe that even if members do not go to conferences, attend their branch meetings or read their journals, they are entitled to vote and to do so on the basis of a reasonable amount of information. Even the noble Lord, Lord Boyd-Carpenter, seemed to accept that view in Committee. He said that union members,
"should receive a clear, clean statement of what they are voting on".—[Official Report, 16/3/93; col. 1386.]
He continued to say that the statement should not be able to be construed as advising them to vote one way or the other. So, despite our strong objections to the clause itself, we have come back with what I think is a minimalist approach. The amendment says that voting papers,
"may be accompanied by a statement, not exceeding 200 words, explaining [in simple terms] the main provisions of the Instrument of Transfer or Amalgamation".
Surely the Government would not object to that. In any event, as I understand it, the material has to be approved by the certification officer before it is issued. It would be a very bad thing if, as a result of the clause in the Bill, future mergers were to be voted upon by sections of the membership who had little idea what it was all about. I beg to move.
Lord Rochester: My Lords, for the life of me I cannot see why, in principle, companies and trade unions should be treated in different ways in this respect. When company shareholders are invited to vote on a major matter, the view of their board of directors is sent to them along with any voting paper. Why should unions be treated differently? It seems to me, as it does to the noble Baroness, Lady Turner, that Clause 5 is yet another example of punitive legislation imposed on trade unions which does not apply to other organisations. I say "punitive" because of the very considerable additional expenditure which is involved in having to send out two sets of papers where one would suffice.
When compared with the voluminous material to which company shareholders are subjected in similar circumstances, the amendment asks for very little. By confining any statement that may accompany the voting paper to no more than 200 words, the amendment seeks out a compromise with the Government which I hope the Minister will accept.
Lord Wedderburn of Charlton: My Lords, the noble Lord, Lord Rochester, anticipated my mentioning this

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point. I support the argument that this is yet another case where that which is allowed to companies, however large or small, is not allowed to trade unions for no good reason at all. However, I pass over that point to a further point. The history of trade union law since 1980 does not make it unreasonable occasionally to wonder what will follow a particular Bill which is before your Lordships' House. One wonders whether the Government's argument does not allow for the next Bill to include a provision that there should not be one-sided material presented, at any rate at the time of the vote or somewhat before, in trade union decisions.
On Report in another place the Minister of State said that the principle was,
"that one-sided material should not go to members when the ballot papers are sent out".
That summarises the Government's argument. The Minister of State continued:
"Surely the hon. Gentleman can see that it is difficult to understand why the union's view should be presented again at the final stage, when people are asked to vote in the ballot". —[Official Report, Commons, 16/2/93; col. 161.]
The final stage is not necessarily confined to the day of the ballot. It might be argued that the final stage is the final stage of the argument. Why does that principle not also apply to elections if one is to deal with organisations in this arbitrary manner? It could apply to decisions of all kinds at the final stage. Are the Government giving us a Bill which states that in the period before a trade union ballot on an important matter one sided material is not allowed? I know the Minister will say that that is not what the Government are promoting on this occasion. However, since 1982 every Bill that has been passed on this matter has contained a raised flag on what is to follow. Unless the Minister can give us an assurance that this principle will not be applied elsewhere in trade union law, your Lordships should draw the conclusion that that may well occur. On that basis the modest amendment of my noble friend should surely be supported.
Lord Boyd-Carpenter: My Lords, as has already been pointed out, I expressed some doubts about this matter at a previous stage. This is a difficult issue. On the one hand, it seems not unreasonable that the notice of the decision to be taken should be accompanied by some information about it. On the other hand, as the Bill now stands, that statement could be biased very much in one direction or another. As I understand it, there is no provision in the Bill to prevent a biased or not wholly subjective statement being included. The trouble with this is that in 200 words anyone could state a powerful argument in favour of either one side or the other. Although I sympathise with the desire on the part of the union to avoid having to submit a separate statement, I see real difficulty with this amendment in as much as it would provide an opportunity for a wholly argumentative, non-objective point to be put in favour or against the proposal. In 200 words one can do quite a lot. The provision would not secure that the statement was the objective statement which I believe most of your Lordships would like to see included.
Lord Murray of Epping Forest: My Lords, unless the Government actually regard inconsistency as a possible virtue—I should not have thought they did—surely they will accept this amendment as being not only desirable on merit, as has been said, but also as being totally and absolutely consistent with much of the legislation on trade unions which has preceded this Bill over the past 10 years. We have been told again and again by the Government Front Bench that one of the main purposes in this great sweep or thrust of legislation has been to ensure that trade unionists are properly informed so they can be fully in control of decisions which are made in their name. That has been the doctrine that has been quite properly enunciated from the Government Front Bench. Surely it is only consistent with that that the membership should be informed of what is happening and of the reason that the proposals are being put forward. The argument that the membership should be deliberately kept in the dark sits ill with that idea. The Minister shakes his head. I am glad to have the assurance that it is not the intention to keep the membership in the dark. I believe the Government's intention should be to illuminate the membership on the decisions they have to take. That is the case we seek to make.
A point which the Government have consistently made in discussing legislation of this kind is the need to use the resources and the financial provisions of members of trade unions effectively and efficiently and to prevent waste. Again this amendment would serve that purpose. Further, the Government have said they seek to improve industrial relations. The main purposes of mergers and transfers of the kind we are discussing are to use the resources of members more efficiently and more effectively; to spend their money more carefully and more effectively; and to reduce unnecessary competition at the expense of employers at the workplace. On all these grounds I should have thought the Minister would have been disposed to recognise the value and the virtues of this amendment and to accept it.
Lord Mottistone: My Lords, instead of pursuing this argument, would not a union do better to leak the 200 words to the press? The members would probably be far keener to read the statement if it appeared in the press than if the statement were posted to them in an envelope with the voting papers. I am more inclined to read what is in the press on company issues than a long argument produced by the chairman of some company. I should have thought the position would be much simpler if that were done. The unions would have to leak the information of course; otherwise the press might not pick it up.
Baroness Seear: My Lords, that is a most extraordinary suggestion from the noble Lord, Lord Mottistone. Does he really think that the press, which is largely anti-union, will present a case which will be seen to be fair, even if it is—one must have doubts about that—and one that will be believed by trade union members? I should think the most likely effect of such a process would be to make union members vote the.other way. However, that remains to be seen. Will the noble Viscount explain why the matter we are

17
discussing is not a good step for unions to take when everyone else may take it? That is what strikes so many of us as being vindictive against unions. I believe I have said previously when discussing this Bill that there is a strong feeling among those who have supported previous legislation that this Bill is out to get the unions. If the Minister wishes to disabuse us of that idea, will he explain why a step which every other organisation is allowed to take is not to be permitted to unions? They are to be obliged to do something which will place a heavy burden upon their already restricted resources. If he cannot convince us on this matter, that is yet further evidence that the purpose of the legislation is totally to undermine unions. I fail to see how one can obtain good industrial relations if one does that.
3.30 p.m.
Lord Blease: My Lords, I was interested to hear the remarks of the noble Lord, Lord Boyd-Carpenter. It appeared to me that he was in total agreement with the principles contained in the amendment. However, I believe he suggested that a statement of 200 words was too lengthy. Would 150 or 100 words be more acceptable to the noble Lord?
Viscount Ullswater: My Lords, I am grateful to all noble Lords who have taken part in the debate, and especially to the noble Baroness, Lady Turner, for her explanation of the aims of the amendment. The fact that noble Lords opposite divided the House twice on issues connected with Clause 5 left us in no doubt of their resistance to its provisions.
Union members entitled to vote in a merger ballot will, of course, always receive a notice about the ballot, approved by the independent certification officer, with the voting papers. Provisions in paragraph 55 of Schedule 7 to the Bill will ensure that, in future, such notice must go out with the voting papers for a merger ballot. In deciding on the form of notice on which it will seek the certification officer's approval, the law will continue to give unions a choice.
The union may opt for a notice setting out, in full, the instrument of amalgamation or transfer for which the ballot seeks approval. Alternatively, it may seek the certification officer's approval for a notice giving an account of the instrument, as set out in Section 99(2) (b) of the 1992 Act:
"sufficient to enable those receiving the notice to form a reasonable judgment of the main effects of the proposed amalgamation or transfer".
Therefore, I cannot accept the comments of the noble Lord, Lord Murray of Epping Forest. We are not trying to prevent union members from knowing all that is going on or keeping them in the dark.
Such an account would certainly cover what the amendment describes as "the main provisions" of the instrument. It would probably have to do more, if that was necessary in the view of the certification officer, to give the union's members a sufficient account of the main effects of the amalgamation or transfer. The point is that if a union believes that that is a better way to proceed than by sending out a copy of the full instrument—and my noble friend Lord Mottistone
18
will have views on that—it is, and will continue to be, free to seek the certification officer's approval for such an account.
The noble Lord, Lord Wedderburn, mentioned election ballots in his arguments in support of the amendment. Union merger ballots are quite different from union election ballots. Quite obviously, the question at issue is completely different. Merger ballots concern the very future existence of the union. That is the point at issue and that is what I should like to draw to the attention of the noble Baroness, Lady Seear. On the other hand, election ballots, and the different law which relates to them, concern a choice between individuals competing to hold union office. The analogy is not a good one. Just because the law requires candidates' addresses to be sent out with election ballot voting papers, that is no argument for saying that there must be some broadly equivalent arrangements for merger ballots. The law already applies in quite different ways in respect of those ballots.
For example, there is nothing even remotely equivalent in the law on union elections to the arrangements which have always applied for the certification officer to approve the notice about a merger ballot. Indeed, it is difficult to see what the basis of an analogy could be. Perhaps it might involve the certification officer considering whether the candidate in an election really meant what he said in his address. I can assure your Lordships that we have no plans for such requirements.
Lord Wedderburn of Charlton: My Lords, I am grateful to the Minister for giving way. Taking all of the argument which he has put to us, does it not appear odd that at that final stage, when the very existence of the union is at stake, as the noble Viscount put it, the law will permit material to be sent in a different envelope from that in which the Government had refused to allow it to be included?
Viscount Ullswater: My Lords, no. I do not know whether the noble Lord is in order in raising a different point. If the union wishes to persuade its members how to vote I do not believe that that should be within the scope of this law. That is why we suggest that the statement should be sent without such persuasive literature.
I appreciate that the noble Baroness in particular and other noble Lords who have spoken stressed that the amendment aims at only a limited and modest change to the provisions in the proposed new Section 99(3A). I have given careful consideration to the possibility that we should allow some additional explanatory statement relating to the instrument of amalgamation or transfer which is the subject of the ballot to be sent out with voting papers. However, as I have explained, I have concluded that there is no need for that, given the nature of the law relating to the notice which will be allowed to accompany the voting papers. I agree with the noble Lord, Lord Boyd-Carpenter, that we have the right balance in the Bill. Therefore I hope that the noble Baroness will withdraw the amendment.
Baroness Robson of Kiddington: My Lords, I am not a leading participant in this debate but I have been listening to it very carefully. The noble Viscount stated that no persuasive literature must go out on the question of a merger between two trade unions. To take the analogy used by my noble friend Lord Rochester, when I receive a merger proposal from a company in which I happen to be a shareholder I am sent the most persuasive arguments to make me vote one way or the other. I cannot see the difference.
Viscount Ullswater: My Lords, the difference is quite clear. The law relating to trade unions and the law relating to companies is quite different, quite distinct and needs to be treated differently because of the nature of the two different identities.
Lord McCarthy: My Lords, this is precisely what we are always asking the noble Viscount. He says that the law is different. We know that the law is different. We are asking him why the law is different. He never gives us a reason why when, as he says, the future existence of the union is at stake the executive and democratically elected leaders of the union are not allowed to put their point of view whereas the person who is involved in a takeover is allowed to put his point of view. What is the difference which justifies the law?
Viscount Ullswater: My Lords, I believe that I have answered that point succinctly.
Lord Murray of Epping Forest: My Lords, perhaps I may clarify one point.
Lord Mottistone: Order! This is Report stage and one cannot clarify a point. One can ask a question. I believe that if noble Lords look at the rules of the game they will find that that is the case. Therefore, if the noble Lord restricted himself to a question rather than a clarification it would be better.
Lord Murray of Epping Forest: My Lords, I am indebted to the noble Lord for drawing to the attention of your Lordships the fact that a question is pending at any second now. This is my question. Will the Minister clarify the impression that he has given that the Government do not object to a letter containing advice or a view arriving through the same letter box in the same post, in a different envelope, with a different stamp onto the same table of the same member, but he does object to one letter containing all the material arriving through the letter box in one envelope and with one stamp? Does he see a real distinction between those two things?
Viscount Ullswater: My Lords, with the leave of the House, my answer to that question is that the law requires that a notice should accompany the ballot paper. It does not require that such other additional material should be sent. That is entirely for the union to decide.
Lord Murray of Epping Forest: My Lords, but does he object? That is my question.
Baroness Turner of Camden: My Lords, I am rather disappointed with the way in which the Minister
20
responded. As I made clear when moving the amendment, this is a minimalist amendment. We have tried to deal with the arguments advanced by the Minister when we put a different amendment at Committee stage. In the drafting of the amendment I tried to address the argument put by the noble Lord, Lord Boyd-Carpenter, to the effect that members should receive a clear statement but should not receive persuasive literature. Indeed the amendment simply says that the ballot paper:
"may be accompanied by a statement, not exceeding 200 words, explaining the main provisions of the Instrument of Transfer or Amalgamation".
The Minister said that together with the voting paper it would be possible to send either a full copy of the instrument, which is usually a legalistic document, or a statement which will cover the main points of the instrument, in consultation with the certification officer. That I understand. On the other hand, surely in the case of a merger one would wish the individual members to receive the actual legal document, even if they do not always read it. In addition, they should receive a summary which would set out simply the main provisions.
I do not believe that the Minister has adequately replied to the points put from this side of the House. I am not satisfied. He has produced no valid arguments for trade unions being governed differently from companies under the law covering mergers or takeovers. Surely the arguments are similar for unions. The identity and existence of the organisation may be at stake. In both instances, the member and the shareholder are entitled to have similar considerations. However, with regard to trade unions we have different and, I believe, much more punitive legislation.
I should have thought that the Government would wish to do everything possible to encourage mergers between unions. It is not so long since the German trade union movement was being held up to us in Britain as an example. We were told that we had far too many unions. Since those days the unions have made a substantial attempt to reduce their number through merger and amalgamation. They have had some success. However, the legislation now being introduced seems to me to run counter to that trend. I believe that it is not to the advantage of either the unions or their members.
Nevertheless, it is not my intention to press the amendment to a vote. When the provision is on the statute book we shall have to consider how best it can be applied in union terms. The unions will have to work out how best they can continue to ensure that their members are kept fully informed of potential mergers and transfers of engagements. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 6 [Confidentiality of trade union's register of members' names and addresses]:
Viscount Ullswater Viscount Ullswater moved Amendment No. 5:
Page 12, line 4, at end insert:
("and any reference in this Act to "the duty of confidentiality" is a reference to the duty prescribed in this subsection.").
The noble Viscount said: My Lords, in moving Amendment No. 5, I speak also to Amendments Nos. 103 and 104. These are minor technical amendments which we believe will make the provision to be inserted by the Bill into the 1992 Act more easily understood.
As noble Lords will be aware, Clause 6 requires a trade union to impose a duty of confidentiality on any scrutineer or independent person whom it appoints to oversee certain ballots. Even if the union fails to observe this duty, however, it is automatically incorporated into the terms of the appointment of the scrutineer or independent person by references to be introduced at appropriate points in the 1992 Act by this Bill.
It seems that those references to an incorporation of a duty of confidentiality, as currently set out in the Bill, have caused some puzzlement. The amendments therefore make it clear that any reference to a duty of confidentiality is a reference to the duty defined under Section 24A(3) to be inserted by Clause 6: I trust that your Lordships will agree that it is helpful to clarify matters in this way. I beg to move.
3.45 p.m.
Baroness Turner of Camden: My Lords, I thank the Minister for that explanation. In the circumstances, we do not offer any opposition to the amendment.
On Question, amendment agreed to.
Clause 7 [Ballots: repeal of provisions for financial assistance and use of employers' premises]:
Lord McCarthy Lord McCarthy moved Amendment No. 6:
Page 12, line 34, after ("116") insert ("except in regard to elections carried out in accordance with 115(2) (b))").
The noble Lord said: My Lords, we now turn to Clause 7 which, as the House knows, deals with the repeal of the scheme for financial assistance to unions in relation to ballots. The objective of the clause is to deny unions any form of assistance to pay for what are now legally imposed ballots, all of which have to be postal. The amendment makes one exception to the general repeal in relation to election ballots. We do not suggest that there should be any money in future for strike ballots, although they now have to be postal, or for ballots about rule changes, political funds, amalgamations or, to use that strange phrase in the consolidation Act, "any other purpose". We simply provide that in the case of election ballots the provisions that exist should remain in place.
We put forward the amendment following the arguments advanced by the Government and their supporters both in this House and in another place for what they were doing. For example, the spokesman for the Government stated on 16th February, at col. 162 of the Official Report in another place, that the clause is there because of the widespread and well accepted scheme which does not merit a continued subsidy. In other words, the fact that the scheme is widespread and well accepted means that it does not merit a continued subsidy. We have never been able to understand that argument. Indeed, the Government had difficulty in explaining it and elaborating upon it. They subsequently came forward with another
22
explanation. At col. 163, the Minister stated that they were abolishing the scheme because it was not justified to give public money to subsidise strikes. He stated:
"We have to decide between using public funds to subsidise ballots on strike action or … other worthy causes".
In seeking to follow the arguments of the Government, the House will remember that at Committee stage we moved an amendment to take out the word "strikes". At that point the Minister put forward another two reasons. On 16th March, at col. 1404 of the Official Report, he stated that there was no case to continue a scheme because it was created as an incentive to postal balloting when the practice was not statutory. In other words, because it has become statutory —there is no option and no alternative—the unions should be denied the money. He also stated that the Government had already decided to phase out the scheme and to provide no more Treasury money in three years' time. In other words, they were already into that process. They therefore could not take notice of our amendment because it was too late.
I suggest that those arguments do not add up to a consistent case. It is not an argument for abolishing a scheme because it is working well. It is not an argument for abolishing a scheme because one is extending the burden, with full postal voting on amalgamations, strikes, and so on. It is not a case for abolishing a scheme that the Government have decided to phase out the mechanism. What they can phase out they can phase in. Therefore we now seek to persuade the Government to accept that there is a case for continuing the scheme in one particular respect. The election element is the most costly single factor in the process of balloting. The number of elections in unions, for the most part imposed as a result of legislation, has become the single most expensive form of balloting. It is no secret that the bulk of the £4.2 million which the Government gave unions last year was spent on election ballots. Election ballots now cost unions more than £5 million a year. Most of that cost is imposed upon them by the Government. Therefore we say that the least the Government can do in those circumstances is to honour the pledge that they made in 1980 to fund some of the costs of those ballots. Most people would suggest about 50 per cent. of the cost. Therefore, it will still cost unions several million pounds a year to come into line with the Government's own requirements. I beg to move.
Lord Rochester: My Lords, I have put my name to the amendment. When a somewhat similar provision was debated in Committee, I deplored the fact that this clause of the Bill was introduced at Report stage in another place without any prior consultation. In reply the noble Viscount, Lord Ullswater, told me that the decision to phase out financial assistance for union ballots was taken in the wake of the public expenditure settlement last autumn; and that, given the claims on that expenditure, funds for union ballots could no longer be justified. Yet at the same time as funding is to be phased out, under the Bill unions are to be obliged to spend even more on ballots. In future virtually all ballots are to be postal and subject to independent scrutiny. That caused me to say at

23
Second Reading that the Government's decision smacked of a certain meanness. I continue to have that feeling.
The amendment does not seek to overturn the clause altogether, but simply to limit continued government funding so that it applies, as the noble Lord, Lord McCarthy, said, only to ballots for the election of union officers or representatives. Those are ballots which trade unions are under a statutory duty to hold at periodic intervals. They account for a large part of the expenditure on the totality of ballots. It seems to me reasonable that, in holding such ballots, unions should continue to receive some financial assistance. I therefore support the amendment.
Lord Boyd-Carpenter: My Lords, I wonder whether my noble friend the Minister can tell noble Lords what amount of public money is involved. If this amendment were to be accepted, what would be the total cost?
Lord Wedderburn of Charlton: My Lords, before the Minister answers that question, I should like to support my noble friend in moving this very important amendment. It is my belief that the historian will find that the Government are in breach of promise and in breach of faith in this matter. I exempt the Minister, who was not around when the turn of policy came. But now he comes, as it were, to finish it off.
In 1980 it was said that there should be more secret postal ballots, financed in great part through public funds. I believe that my noble friend is right in saying that that is now done to the extent of some £4 million to £5 million a year.
Perhaps I may quote the noble Earl, Lord Gowrie, who said on 20th May 1980, which is where the story begins:
"The provision of public funds for secret postal ballots has been widely welcomed as following best existing practice of many trade unions and as part of our overall aim of encouraging greater participation by rank-and-file members of unions". [Official Report, 20/5/80; col. 740.]
That policy was followed in the teeth of divided trade union counsels. There were many who said: "Don't trust it. Don't take the money". But gradually more money came forward, and it is the tendency of mankind, shared perhaps by companies and trade union leaders, to take money when it is offered. The money was taken, and is being taken. At the same time the Government made more ballots compulsory; and then made more compulsory ballots postal. So one reaches the point now where the breach is finalised; namely, the law is pushed forward to include more postal ballots which are obligatory on the trade union, and in the next two years or so the money is to be taken away. Against that picture my noble friend's amendment is modest indeed. I have spared noble Lords the detail of the history, partly because I am sure that all noble Lords know very well that that outline is correct. I support the amendment.
Lord Stoddart of Swindon: My Lords, I too support the amendment on very much the same grounds as those stated by my noble friend Lord Wedderburn of Charlton. There is no doubt at all that the unions have
24
been duped. Indeed, the Government would have had a great deal more trouble in introducing their provisions for compulsory postal ballots had the bitter pill not been sweetened by some financial assistance. The Government did not then say that there was a time limit on that particular form of assistance. They did not make it absolutely clear that there would be a further Bill which would remove the financial assistance. But now we have such a Bill. One cannot help believing very seriously that it is the intention of the Government, in spite of their protestations, to undermine the trade union movement through financial means. This particular provision will cost the trade unions dear—and many of them are in dire financial straits at the present time—for having to do things which are imposed upon them statutorily by Parliament, by the Government. At the behest of the Government, in large measure they will have to use their funds to do things in which they do not believe.
However, there is another catch in the Bill. There is another provision which will hurt the trade unions very much if the Government have their way. That is contained in Clause 14, where in my view the Government deliberately set out to wean people away, perhaps by default, by persuading people that they need not pay the trade union subscription every week. So the Government are getting at the trade unions in two ways. First, they are increasing their expenditure, which they promised not to do; then, at the same time, in the same Bill, they are doing their best to undermine the income of the trade unions. I believe that through this Bill, the Government show their animosity towards the trade union movement, and show perfectly well that, in spite of the fact that they have said they believe in a strong democratic trade union movement, they do not believe in the trade union movement at all. As I have said before, the only reason that they tolerate the trade union movement is that in some instances trade unions are administrative conveniences for the employers.
Baroness Denton of Wakefield: My Lords, I thank the noble Lord, Lord McCarthy, for his explanation of the thinking behind the amendment. But, like the related amendment that was tabled and debated in Committee, I am afraid that it remains unacceptable to the Government.
Perhaps I may start my remarks by answering my noble friend Lord Boyd-Carpenter, who asked for the costs incurred under the scheme. In 1991 the certification officer made payments totalling over £4 million to 77 unions. In 1992 a similar amount was paid to 80 unions. Amounts paid range from as much as over £1 million to the Transport and General Workers' Union to as little as £315 to the National and Provincial Building Society Staff Association. The amount of money that a union receives depends on the extent to which the union holds ballots and incurs expenditure which can be refunded under the terms of the scheme. It also depends on whether the union chooses to apply for refunds. Some unions do not.
Clause 7 repeals Sections 115 and 116 of the Trade Union and Labour Relations (Consolidation) Act 1992. Section 115 empowers the Secretary of State to establish a scheme under which payments may be

25
made to trade unions in respect of certain postal ballots. It will become obsolete once the trade union ballot funding scheme which the certification officer currently administers has been phased out in 1996, and we are therefore using the opportunity afforded by this Bill to repeal it. Section 116 is defined in terms of Section 115. Without either Section 115 or the scheme, it will become meaningless. It therefore makes sense that it too should be repealed.
The noble Lord made it clear that the main intention behind the amendment is that a ballot funding scheme should continue to exist in respect of union elections. As we emphasised in Committee, Clause 7 has no effect on whether or not the existing trade union ballot funding scheme is phased out. That decision was taken quite separately and is being implemented by a statutory instrument which came into effect on 1st April. Clause 7 simply repeals the power to establish such a scheme, a power that is clearly becoming redundant now that the Secretary of State has decided that it is no longer right or an appropriate use of public funds for such a scheme to operate.
It may be helpful if I set out once again the reasons for phasing out the trade union ballot funding scheme. The scheme was introduced in 1980 to encourage the voluntary practice of secret balloting at a time when there were no statutory requirements for unions to ballot their members before calling strikes or when electing leaders. Since 1984 such ballots have been a legal requirement. The original objectives of the scheme are no longer relevant and it now largely operates as a government subsidy for ballots which unions are required to carry out by law.
4 p.m.
Lord Stoddart of Swindon: My Lords, I wonder whether the noble Baroness can answer one question. When the provision for financial assistance for postal ballots was introduced in 1980, was it made clear at that time that the assistance was only temporary and not permanent?
Baroness Denton of Wakefield: My Lords, in 1980 the scheme was to encourage balloting. Indeed, it is surprising that the Trades Union Congress boycotted the scheme until 1985. I understand that it almost expelled two unions for using the scheme. Since 1986, unions have been allowed by the Trades Union Congress to use the scheme. It never welcomed the scheme. The issue is not the cost. That was dealt with by the statutory instrument that phased out the trade union ballot funding scheme. This clause takes out unnecessary legislation.
Lord Stoddart of Swindon: My Lords, I am most obliged to the noble Baroness for trying to answer my question but I fear that she has not done so. Will she please answer it? In 1980 when the scheme was introduced, was it introduced on the basis that it would be or could be phased out at some point in the future? Was it made clear to the trade unions—never mind about the Trades Union Congress, which is not concerned here since this involved financial assistance to individual trade unions and not to the Trades
26
Union Congress—that it could be phased out, or was the impression given that it was introduced on a permanent basis?
Baroness Denton of Wakefield: My Lords, it was never indicated that the funding was permanent. The purpose of the scheme was to encourage balloting. That is now a legal requirement.
Lord Wedderburn of Charlton: My Lords, as the noble Baroness has said that there was no such indication from the Government, can she say why the Secretary of State made the following comment? In a major speech that he made on the issue of postal ballots in December 1979, he told the trade unions:
"if you are thinking of having one, you do not have to worry about the cost, for the taxpayer will reimburse you".—[Official Report, Commons, 17/12/79; col. 165.]
I do not select those words out of context. There is nothing in the context to suggest a limitation as to time.
Baroness Denton of Wakefield: My Lords, the issue then was the availability of the funding to encourage balloting. Balloting is now required by law.
Lord Stoddart of Swindon: My Lords, perhaps I may just try again.
Lord Howie of Troon: My Lords, I wonder whether the noble Baroness would make it clear whether or not it was presented to this House—not to any outside body—that this funding was a temporary measure? In my recollection it was not, but I may be wrong.
Baroness Denton of Wakefield: My Lords, let me once more repeat for the benefit of the noble Lord, that it was not presented as a permanent measure.
Lord Howie of Troon: My Lords, was it presented as a temporary measure?
Lord Harmar-Nicholls: My Lords, perhaps I may ask my noble friend what legislation is permanent, in the sense that this House, if it so wishes cannot vary it at a later stage in the light of new circumstances? The noble Lord's question is irrelevant in the context of the powers of Parliament itself.
Baroness Denton of Wakefield: My Lords, I thank my noble friend for drawing attention to the real position of legislation. I return to the clause to which the amendment of the noble Lord, Lord McCarthy, applies. I stress that the scheme is being abolished because it no longer represents a justified use of public money. That applies to all and any ballot that it funds. Trade union ballots can and should be funded by trade unions, not by the taxpayer.
The Government cannot accept the amendment. I hope that the noble Lord will withdraw it.
Lord McCarthy: My Lords, with respect, the noble Baroness has a genius for non-justification. It is no answer to say that we abolished this because we abolished something else. We have phased out the scheme and you cannot ask us to explain or defend it because we have done it. That is like saying that we have switched off the life support machine and it is done now; you are dead. Do not ask why. We have

27
done it. Of course the Government can switch the machine back on again. They know that. We are asking them why they do not do so. It is not even true to say that they did it before they published the Bill. The Bill was published before they abolished the scheme. The Bill was published in November 1992. In explaining the Bill, the Government said that they were going to abolish the scheme. The trade unions complained and asked for an explanation. They have not been given an explanation today. It is no answer to say, "We did it to encourage balloting and now that balloting has been encouraged, we do not need to do it any more." Balloting is taking place and it still costs money. It was because it cost money that Mr. Prior (who is now the noble Lord, Lord Prior) introduced the scheme in the first place. It is no justification to say that the scheme is being abolished because it was introduced as an encouragement to do something—to encourage us to be good boys and girls—.and then to say, "You are such excellent boys and girls that we shall take away the money." That is no justification.
My noble friend Lord Wedderburn is absolutely right. A promise was made. It was not made in so many words on the Floor of the House but it is well known—I wish that the noble Lord, Lord Prior, was in his place—that the then Minister wanted to encourage trade unions to engage in balloting. In fact he had friends in the trade unions and knew what they wanted and felt about these matters. Those friends said to him, "Yes, we would like to have ballots, Jim, but they are very expensive." He said, "Don't worry. Leave it with me. I'll do something about that." He did something and now, because it has been successful, the Government are taking it away.
It is no excuse to say, "You are all doing it." Every time the Government bring a Bill to this House it adds to the cost. This adds to the cost while taking away the means of paying the cost. I have explained to the House before what additional costs will be incurred by trade unions to deal with the additional functions placed on scrutineers for the surveillance and extension of elections. Even general secretaries and presidents who do not have votes have to be regularly elected. That costs unions more than £100,000 and £150,000 a year—all done by the Government. There is no justification for taking away that support. It constitutes a breach of faith and we intend to divide the House.
4.10 p.m.
On Question, Whether the said amendment (No. 6) shall be agreed to?
Their Lordships divided: Contents, 87; Not-Contents 131.

Division No. 1

CONTENTS

Addington, L.

Bruce of Donington, L.

Ardwick, L.

Carmichael of Kelvingrove, L

Ashley of Stoke, L.

Carter, L.

Aylestone, L.

Cledwyn of Penrhos, L.

Beaumont of Whitley, L.

Cocks of Hartcliffe, L.

Blease, L.

Dean of Beswick, L.

Bonham-Carter, L.

Desai, L.

Boston of Faversham, L.

Dormand of Easington, L.

Bottomley, L.

Ennals, L.

28

Ezra, L.

Merlyn-Rees, L.

Falkland, V.

Mishcon, L.

Fisher of Rednal, B.

Molloy, L.

Fitt, L.

Morris of Castle Morris, L.

Gallacher, L.

Mulley, L.

Galpern, L.

Murray of Epping Forest, L.

Geraint, L.

Nicol, B.

Gladwyn, L.

Northfield, L.

Graham of Edmonton, L. [Teller.]

Ogmore, L.

Pitt of Hampstead, L.

Greene of Harrow Weald, L.

Plant of Highfield, L.

Gregson, L.

Ponsonby of Shulbrede, L.

Grey, E. [Teller.]

Prys-Davies, L.

Hampton, L.

Richard, L.

Hanworth, V.

Robson of Kiddington, B.

Harris of Greenwich, L.

Rochester, L.

Hilton of Eggardon, B.

Sainsbury, L.

Hirshfield, L.

Seear, B.

Hollis of Heigham, B.

Sefton of Garston, L.

Holme of Cheltenham, L.

Serota, B.

Howie of Troon, L.

Shackleton, L.

Hughes, L.

Stallard, L.

Jay, L.

Stoddart of Swindon, L.

Jay of Paddington, B.

Strabolgi, L.

Jeger, B.

Taylor of Blackburn, L.

Jenkins of Putney, L.

Taylor of Gryfe, L.

John-Mackie, L.

Thomson of Monifieth, L.

Judd, L.

Tordoff, L.

Kilbracken, L.

Turner of Camden, B.

Lockwood, B.

Wallace of Coslany, L.

Longford, E.

Wedderburn of Charlton, L.

McCarthy, L.

White, B.

Mclntosh of Haringey, L.

Williams of Elvel, L.

Mallalieu, B.

Williams of Mostyn, L.

Mason of Barnsley, L.

Winchilsea and Nottingham, E

NOT-CONTENTS

Aberdare, L.

Elton, L.

Acton, L.

Erroll of Hale, L.

Alexander of Tunis, E.

Faithfull, B.

Allenby of Megiddo, V.

Finsberg, L.

Arran, E.

Flather, B.

Ashbourne, L.

Forbes, L.

Astor of Hever, L.

Fraser of Carmyllie, L.

Auckland, L.

Fraser of Kilmorack, L.

Barber of Tewkesbury, L.

Gainford, L.

Belhaven and Stenton, L.

Gardner of Parkes, B.

Bellwin, L.

Geddes, L.

Bessborough, E.

Gibson-Watt, L.

Blatch, B.

Goschen, V.

Boardman, L.

Halsbury, E.

Borthwick, L.

Harding of Petherton, L.

Boyd-Carpenter, L.

Harmar-Nicholls, L.

Brabazon of Tara, L.

Hayhoe, L.

Braine of Wheatley, L.

Hemphill, L.

Butterworth, L.

Henley, L.

Cadman, L.

Hesketh, L. [Teller.]

Caithness, E.

Hives, L.

Campbell of Croy, L.

Holderness, L.

Carnegy of Lour, B.

HolmPatrick, L.

Carnock, L.

Hood, V.

Chalker of Wallasey, B.

Hooper, B.

Charteris of Amisfield, L.

Hothfield, L.

Chelmsford, V.

Howe, E.

Clark of Kempston, L

Hylton-Foster, B.

Cockfield, L.

Johnston of Rockport, L.

Constantine of Stanmore, L.

Lauderdale, E.

Cox, B.

Lindsay, E.

Cranborne, V.

Lindsey and Abingdon, E.

Cullen of Ashbourne, L.

Liverpool, E.

Cumberlege, B.

Lloyd-George of Dwyfor, E.

Davidson, V.

Long, V.

Denham, L.

Lyell, L.

Denton of Wakefield, B.

Mackay of Ardbrecknish, L.

Dundonald, E.

Mackay of Clashfern, L. [Lord Chancellor.]

Eden of Winton, L.

Effingham, E.

Mancroft, L.

Elles, B.

Margadale, L.

Elliott of Morpeth, L.

Marlesford, L.

Elphinstone, L.

Merrivale, L.

29

Mersey, V.

St. Davids, V.

Milverton, L.

Saltoun of Abernethy, Ly.

Monteagle of Brandon, L.

Shannon, E.

Mottistone, L.

Sharples, B.

Mountevans, L.

Skelmersdale, L.

Mowbray and Stourton, L.

Slim, V.

Moyne, L.

Stewartby, L.

Munster, E.

Strathclyde, L.

Murton of Lindisfarne, L.

Strathmore and Kinghorne, E. [Teller.]

Nelson, E.

Newall, L.

Sudeley, L.

Norrie, L.

Swansea, L.

Orkney, E.

Terrington, L.

Oxfuird, V.

Teviot, L.

Park of Monmouth, B.

Torrington, V.

Pender, L.

Trumpington, B.

Peyton of Yeovil, L.

Ullswater, V.

Plummer of St. Marylebone, L.

Vaux of Harrowden, L.

Quinton, L.

Vivian, L.

Rankeillour, L.

Wade of Chorlton, L.

Reay, L.

Whitelaw, V.

Rippon of Hexham, L.

Wynford, L.

Rodger of Earlsferry, L.

Young, B.

Rodney, L.

Resolved in the negative, and amendment disagreed to accordingly.
4.18 p.m.
Clause 13 [Right not to be excluded or expelled]:
Baroness Turner Baroness Turner moved Amendment No. 7:
Page 24, line 45, at end insert:("but does include conduct which is in breach of the rules of the union and which is calculated to impair its position to negotiate with an employer on behalf of its members generally or at the place of work of the individual.").
The noble Baroness said: My Lords, Clause 13 was discussed thoroughly in Committee. It is the clause which removes the right the trade union movement has had for many years to regulate itself under what are called the Bridlington principles. It is one of the most important clauses in the Bill. It is right that we should have spent a lot of time discussing it at Committee stage.
However, we did not succeed in convincing the Committee that the clause as it stands would be damaging to the maintenance or growth of single union deals or that it would be responsible for undermining industrial stability. The clause makes it impossible for a union to refuse admission to an individual whose terms and conditions of employment are governed by a negotiating agreement held with another union, and also makes it impossible to exclude anybody on the same grounds.
As we said in Committee, at the present time the TUC has its own system of regulation. It is a system of self-regulation which, despite the criticisms sometimes made—it would be astonishing if criticisms did not arise from time to time, particularly in those instances where an award has gone against a specific union—has played a significant role in ensuring a degree of industrial stability. Generally speaking, unions have gone along with the decisions made. The fact that TUC membership is still something desired by ordinary members is clear from the recent ballot conducted by the merged engineering union.
Nevertheless, the Government have not been moved by the arguments that we advanced. Moreover, in Committee, your Lordships rejected in a Division the amendment I advanced that would have allowed a union to refuse membership to an applicant where
30
exclusive bargaining rights were held by another union. In Committee the Minister sought to maintain that union membership and union recognition are two quite separate things. I speak from some experience when I say that they are not; they are really very closely connected indeed.
When attempting to organise at a green field site where there is no union membership the very first questions that union organisers are asked by potential members are, "Will the employer recognise the union? What will you do to get recognition?" That is quite natural, for although over the years unions have developed other individual services—legal aid, discount trading, insurance services, holiday and tourist services and so on— the main reason for a union's existence is to negotiate pay and conditions of service. They began as collectives to represent employee interests in situations where the individual had vastly less bargaining power than the employer. That is still the situation and it is why, despite all the efforts of the Government, who, I insist, plainly do not like unions and would make them much more difficult to organise if they could get away with it, unions still continue to exist despite unemployment and despite all the legislation we have had since 1979 and it is why they will continue.
My amendment seeks to salvage at least something from this and to provide some kind of safeguard for industrial stability. It is built on the assumption that a union highly prizes its negotiating rights once it has got them. It seeks to deal with the situation which occasionally arises in which an individual, having fallen out with his colleagues or perhaps finding himself in a minority following a vote on a pay deal or even perhaps as a result of political motivation aided by outside influences which are anti-union, deliberately sets about undermining the union's position. He may seek to organise a breakaway. He may perhaps, deliberately with malicious intent, seek to utilise the provisions of the Bill to undermine the single union agreement which has been established and to which the majority of employees adhere.
Some such situation was envisaged by Nissan when it wrote the letter the text of which I read to your Lordships on the 18th March at col. 1563 of the Official Report in Committee. The letter pointed out, it will be recalled, that the clause if unamended could undermine single union agreements and could put employers in an impossible situation. Surely if an individual, maliciously motivated, sets about trying to undermine the negotiating position of a union it should be possible for the union to deal with him under this clause of the Bill. That is what the amendment is about. It is quite a minor amendment given the size of the clause and the impact that the clause is likely to have when it is in legislation. Nevertheless, it provides some minor safeguard to unions where they have a single union agreement. For that reason it is important. I hope that the Minister will be prepared to give it favourable consideration. I beg to move.
Viscount Ullswater: My Lords, this amendment raises issues which I really thought we had laid to rest, in Committee both in this House and in another place.

31
The Government believe that individuals should not be prevented from joining the trade union of their choice because of a cartel arrangement between trade unions which preserves their spheres of influence while taking no account of the wishes of members and potential members. Central to the Bridlington principles are the "rules" that a union may not recruit members of another union where that union objects to their transfer and that a union may not organise at a place of work where another union has a majority of members. Those are a clear denial of those individuals' freedom to join the union of their choice. If they consider that another union would serve them better, why should they not be able to join it?
We do recognise of course that unions should not be required to accept anyone and everyone into membership. The clause provides sensible exemptions from the general right of individuals to join the union of their choice. One of these exemptions provides that a union may refuse membership on grounds of conduct. However, it is important that a union cannot use this exemption to exclude someone for a reason that has nothing genuinely to do with "conduct". We must ensure that it does not allow unions to re-introduce aspects of the Bridlington principles by the back door, or undermine other essential planks of our trade union legislation.
In so far as the effect of the amendment is to allow a union to exclude an individual on the ground that it is the intention of that individual to cause damage to the legitimate interests of the union, I have to say, as I have said already in the House, that the amendment is entirely unnecessary. The clause already allows such exclusions. Let us be perfectly clear: any conduct other than that specified in subsection (4) of the clause will be a legitimate reason for exclusion or expulsion, so long as it is the sole reason for that exclusion.
The noble Baroness's arguments have again demonstrated the confusion that appears to linger in the minds of some noble Lords in respect of trade union membership and trade union recognition. This clause is about union membership. It has nothing to do with recognition. As we have said on many occasions, it is up to an employer who, if anyone, he chooses to negotiate with. If he wishes to negotiate collectively, he may choose to do so with one union or with several. That is his decision. That decision may of course be influenced by a number of factors. It has nothing to do with the right of individuals to join the union of their choice.
For the purposes of this clause there are two kinds of conduct: conduct for which exclusion from a union is explicitly not permitted, and any other form of conduct for which exclusion is permitted, provided that it is the sole reason. To the extent that the amendment seeks to reinforce the latter point, it is unnecessary. To the extent that it seeks to limit the former category—the conduct for which exclusion or expulsion is not permitted— I cannot accept it. I hope that the noble Baroness will therefore be persuaded to withdraw the amendment.
Baroness Turner of Camden: My Lords, I have to say that I really am rather unpersuaded. Again I
32
emphasise that there is not this distinction between trade union membership and trade union recognition. The two go very much together. That has been seen by numbers of people who were concerned that the clause as it now stands would be a danger to improvement in the spread of single-union agreements.
The intention is to rule out conduct which is in breach of the rules of the union and which is calculated to impair its position to negotiate with an employer on behalf of its members generally or at the place of work of the individual. In other words, it is elaborating precisely what kind of conduct can be dealt with under the terms of the clause. It is intended to deal with the situation where an individual maliciously seeks to undermine the union's negotiating position. As we said when we discussed the single union situation last time round, we are not alone in our concern that the clause, if unamended, will result in a great deal of industrial instability. We think that the Bridlington principles, though they have been decried on numerous occasions by the Minister, have over the years resulted in a much greater degree of industrial stability than could have been expected otherwise. By removing that kind of restraint on unions we are letting ourselves in for a great many problems and for a great deal of general industrial instability.
In view of the importance of the clause and the fact that this was a minimal attempt to minimise its impact I feel that I have no alternative but to test the opinion of the House.
4.29 p.m.
On Question, Whether the said amendment (No. 7) shall be agreed to?
Their Lordships divided: Contents, 88; Not-Contents, 133.

Division No. 2

CONTENTS

Addington, L.

Grey, E.

Airedale, L.

Hampton, L.

Archer of Sandwell, L.

Hanworth, V.

Ardwick, L.

Harris of Greenwich, L.

Ashley of Stoke, L.

Hilton of Eggardon, B.

Attlee, E.

Hirshfield, L.

Aylestone, L.

Hollis of Heigham, B. [Teller.]

Beaumont of Whitley, L.

Holme of Cheltenham, L.

Blease, L.

Howie of Troon, L.

Bonham-Carter, L.

Hughes, L.

Boston of Faversham, L.

Jay, L.

Bottomley, L.

Jay of Paddington, B.

Bruce of Donington, L.

Jeger, B.

Carmichael of Kelvingrove, L.

Jenkins of Putney, L.

Carter, L.

John-Mackie, L.

Cledwyn of Penrhos, L.

Judd, L.

Cocks of Hartcliffe, L.

Kilbracken, L.

Dean of Beswick, L.

Lockwood, B.

Dormand of Easington, L.

Longford, E.

Ennals, L.

McCarthy, L.

Ezra, L.

Mclntosh of Haringey, L.

Falkland, V.

Mallalieu, B.

Fisher of Rednal, B.

Mason of Barnsley, L.

Fitt, L.

Merlyn-Rees, L.

Gallacher, L.

Mishcon, L.

Galpern, L.

Molloy, L.

Geraint, L.

Morris of Castle Morris, L.

Graham of Edmonton, L.[Teller.]

Mulley, L.

Murray of Epping Forest, L.

Greene of Harrow Weald, L.

Nicol, B.

Gregson, L.

Northfield, L.

33

Ogmore, L.

Stoddart of Swindon, L.

Pitt of Hampstead, L.

Strabolgi, L.

Plant of Highfield, L.

Taylor of Blackburn, L.

Ponsonby of Shulbrede, L.

Taylor of Gryfe, L.

Prys-Davies, L.

Thomson of Monifieth, L.

Richard, L.

Tordoff, L.

Robson of Kiddington, B.

Turner of Camden, B.

Rochester, L.

Wallace of Coslany, L.

Sainsbury, L.

Wedderburn of Charlton, L.

Scanlon, L.

White, B.

Seear, B.

Williams of Elvel, L.

Sefton of Garston, L.

Williams of Mostyn, L.

Serota, B.

Winchilsea and Nottingham, E.

Shackleton, L.

NOT-CONTENTS

Aberdare, L.

Hooper, B.

Acton, L.

Hothfield, L.

Aldington, L.

Howe, E.

Alexander of Tunis, E.

Hylton-Foster, B.

Allenby of Megiddo, V.

Johnston of Rockport, L.

Arran, E.

Lauderdale. E.

Astor of Hever, L.

Lindsay, E.

Auckland, L.

Lindsey and Abingdon, E.

Barber of Tewkesbury, L.

Liverpool, E.

Bellwin, L.

Lloyd-George of Dwyfor, E.

Bessborough, E.

Long, V.

Blatch, B.

Lyell, L.

Boardman, L.

Mackay of Ardbrecknish, L.

Borthwick, L.

Mackay of Clashfern, L. [Lord Chancellor.]

Boyd-Carpenter, L.

Brabazon of Tara, L.

Mancroft, L.

Braine of Wheatley, L.

Margadale, L.

Brougham and Vaux, L.

Marlesford, L.

Butterworth, L.

Merrivale, L.

Cadman, L.

Mersey, V.

Caithness, E.

Milverton, L.

Campbell of Croy, L.

Monteagle of Brandon, L.

Carnegy of Lour, B.

Mottistone, L.

Chalfont, L.

Mountevans, L.

Chalker of Wallasey, B.

Mowbray and Stourton, L.

Chelmsford, V.

Moyne, L.

Clark of Kempston, L

Munster, E.

Constantine of Stanmore, L.

Murton of Lindisfarne, L.

Cox, B.

Nelson, E.

Craigavon, V.

Newall, L.

Cullen of Ashbourne, L.

Norrie, L.

Cumberlege, B.

Orkney, L.

Davidson, V.

Oxfuird, V.

Denham, L.

Park of Monmouth, B.

Denton of Wakefield, B.

Pender, L.

Dundonald, E.

Peyton of Yeovil, L.

Eden of Winton, L.

Plummer of St. Marylebone, L.

Elles, B.

Quinton, L.

Elliott of Morpeth, L.

Rankeillour, L.

Elphinstone, L.

Reay, L.

Elton, L.

Renwick, L.

Faithfull, B.

Ridley, V.

Ferrers, E.

Rippon of Hexham, L.

Finsberg, L.

Rodger of Earlsferry, L.

Flather, B.

Rodney, L.

Forbes, L.

Romney, E.

Fraser of Carmyllie, L.

St. Davids, V.

Fraser of Kilmorack, L.

Saltoun of Abernethy, Ly.

Gainford, L.

Sharpies, B.

Gardner of Parkes, B.

Skelmersdale, L.

Geddes, L.

Slim, V.

Gibson-Watt, L.

Stewartby, L.

Goschen, V.

Strathclyde, L.

Greenway, L.

Strathcona and Mount Royal, L.

Halsbury, E.

Harding of Petherton, L.

Strathmore and Kinghorne, E. [Teller.]

Hardwicke, E.

Harmar-Nicholls, L.

Sudeley, L.

Hemphill, L.

Swansea, L.

Henley, L.

Teviot, L.

Hesketh, L. [Teller.]

Thomas of Gwydir, L.

Hives, L.

Thurlow, L.

Holderness, L.

Torrington, V.

HolmPatrick, L.

Trumpington, B.

34

Ullswater, V.

Whitelaw, V

Vaux of Harrowden, L.

Wynford, L.

Vivian, L.

Young, B.

Wade of Chorlton, L.

Resolved in the negative, and amendment disagreed to accordingly.
4.37 p.m.
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 8:
Page 27, line 3, after ("section") insert ("including rights arising from an agreement relating to the application of criteria in subsection (3) of that section").
The noble Lord said: My Lords, the purpose of this amendment to Clause 13 is to ensure that certain fundamental liberty of contract-making is clearly held by trade unions. It is a matter about which there has been widespread concern and ambiguity.
I wish to make five points on the amendment. The first is as to context. This clause prevents workers from establishing and joining organisations of their own choosing without any distinction whatever, subject only to the rules, without need for authorisation. They have the liberty to draw up their constitution and rules and elect their representatives in full freedom. Those words are the nub of the convention on freedom of association of the International Labour Organisation. I think it was established in Committee that, to put it mildly, there is clearly a grave risk of the breach of that convention, which the Government do not answer by simply stating that the clause is not in breach. I hope that at some point in our proceedings the noble Viscount will be able to tell us whether the Government are willing now, having looked at the matter again, to give greater publicity—perhaps by placing documents in the Library—to the transactions at which the various bodies of the ILO have looked regarding this and previous similar legislation, especially in view of the fact that yet again this clause makes use of unjustifiable conduct. That is a category which the ILO has found not to be in accordance with the convention's minimum standards.
Secondly, in that context the clause demands that the trade unions set their admissions and exclusions within the range of what it says are acceptable criteria. For the first time in our law there are limited criteria in this clause as to the right of trade unions to admit and exclude. But they include a number of phrases in the new Section 174, such as invitation by way of a profession, occupation, or trade, or the like. I take those three as characteristics of new Section 174(3).
The question then arises whether, if those criteria are not observed, there is a remedy, and at whose hands. As the clause stands—and I take it that the Government are confident enough by now not to wish to change the basic structure—the new Sections 174(3) and (5) refer on to Section 177. May I read subsections (3) and (5) of Section 177. They give the remedy. Subsection (3) says:
"The remedy of an individual for infringement of the rights conferred"——
that is an individual who has been excluded improperly—

35
"is by way of a complaint to an industrial tribunal in accordance with that section, Sections 175 and 176, and this section, and not otherwise".
The rights being set down are remediable by action for compensation in the industrial tribunal.
Indeed, the clauses are framed in a traditional way, repeating what has occurred in previous Bills. Subsection (5) of the new Section 177 states:
"The rights conferred by Section 174 are in addition to, and not in substitution for, any right which exists apart from that section; and, subject to subsection (4) nothing in that section, Section 175 or 176 or this section affects any remedy for infringement of any such right".
In other words, the subsection maintains all the rights which would exist, quite apart from this section, unless, of course, they are in clear breach of the new section. All rights are reserved. Any right which exists apart from the section is maintained.
The question that has arisen comes from the desire of the amendment to add to subsection (5) the words:
"including rights"—
that is to say, maintaining the rights
"arising from an agreement relating to the application of criteria in subsection (3) of that section".
Perhaps, in view of the context, it would have been better to say subsection (3) of Section 174.
Why should we need to do that? It is because terms like "specified trade", "specified profession" or "specified occupation", are notoriously uncertain. I do not go into conduct for the moment. That raises rather different issues. There are great doubts about the meaning. In real life, practices and agreements are likely to grow up around what people understand to be specified professions or occupations. Often they tend to agree—sometimes implicitly—that a certain meaning should be observed, not in contravention of such criteria but to elucidate their application.
For example, if union A and union B—I go straight to the trade unions—agree that as a matter of common sense, since that has always operated in the area of shipyards, or rather shipbuilding as there are scarcely any shipyards, that one of them will take into membership marine engineers while the other will offer itself to all the rest, that would be quite sensible. It does little more than permit trade unions, in agreements even possibly involving employers, through the freedom of contract (which the general law allows the parties) to attach trade meanings and usages as a meaning to any terms other than those prohibited by statute.
Some people have said that it may be the Government's intention to prohibit this kind of agreement. The clause does not do so, in my submission, as it stands. However, it would be of some value to know that the Government really mean to keep to what they have here, possibly even in a later Bill. Obviously, the industrial situation— and the industrial situation not merely for unions but for managers —would be different if the parties were not allowed to agree, not in contravention of the Bill but in application of the Bill. It would be a situation of some gravity for them if they were prevented from doing that which any other citizen could do in that regard.
In my submission the amendment would cure ambiguities. It is not only my submission. There are others who are worried —that the same freedom of contract should be allowed as is allowed to other parties; those, for example, who attach a customary meaning to terms of a contract which is not a breach of a statute. Within the boundaries of the Act I submit that it would be useful for everybody, not simply for trade unions but for industrial relations generally, to make clear at this stage that there is nothing wrong in the kind of conduct that every other citizen in the land can conduct quite properly. I beg to move.
4.45 p.m.
Baroness Turner of Camden: My Lords, I support the amendment moved by my noble friend. I do not want to go over the same arguments. My noble friend has explained clearly what the amendment is about. Speaking with some experience of trade union work over a long period, I stress that it would be a great pity if the kind of inter-union arrangements to which he referred were not permitted. A union can decide to recruit marine engineers and another union will have an agreement with that union under which it recruits the rest. That kind of agreement or arrangement is common in industry and works extremely well. It leads to the degree of industrial stability that I hope we all aim for. With that in view, I hope that the Government feel able to accept the arguments of my noble friend and the amendment that he has moved.
Viscount Ullswater: My Lords, I have to confess that I found it difficult to understand the purpose of the amendment. Therefore, I am grateful to the noble Lord for setting out his reasons for tabling it. I am sorry if my response does not fully deal with his arguments.
Perhaps it would be helpful if I outline the rationale behind the structure of Clause 13 and the purpose of subsection (3) in particular. As noble Lords are aware, the purpose of Clause 13 is to give individuals greater freedom to join the union of their choice. The approach taken in the clause concentrates on the individual right, subject to certain exceptions, rather than defining in the first instance the circumstances in which a union may exclude or expel individuals from membership. Subsection (2) details the reasons which are permissible as grounds for exclusion or expulsion by a trade union. The first of these is that an individual does not qualify, or no longer qualifies, for membership by reason of an enforceable membership requirement in the union's rules. What constitutes an enforceable membership requirement is defined further in subsection (3).
An enforceable requirement is one which restricts membership solely by reference to employment in a specified trade, industry or profession; occupational description (including grade, level, or category of appointment); or possession of specified trade, industrial, or professional qualifications or work experience. Such restrictions are commonly used by trade unions to ensure a commonality of interest among their membership and to make the tasks of

37
representation and negotiation realistic and meaningful. It has never been our intention to force unions to accept into membership individuals who have nothing in common with their existing membership. Such restrictions are therefore acceptable as reasons for exclusion.
The requirement that these exclusions must be specified in the union's rule book, unlike the other acceptable reasons for exclusion in subsection (2), is included to ensure that it is a genuine, generally-applied, rule of the union that membership be restricted in this way. It might otherwise be possible for a union to use these exemptions as a route to exclude specific members in particular circumstances. This would clearly be unacceptable.
The clause therefore provides adequate protection for trades unions against being required to accept inappropriate individuals into membership, while providing the widest appropriate right for individuals to join the trades union of their choice.
I cannot see how the amendment contributes anything worthwhile to the clause. If it simply ensures that rights based on the criteria in subsection (3) and contained in the union's rules are additional remedies to those provided for in the clause, then I believe it to be unnecessary. The clause already makes it quite clear—in the very subsection to which the amendment refers—that the rights conferred by the section are in addition to any other rights. There is no need to specify any of those rights.
I can confirm that the clause does not outlaw agreements between unions as to the matter referred to in subsection (3) of Section 174. However, subsection (5) is not ambiguous. The amendment is superfluous and in no way clarifies subsection (3).
When moving the amendment, the noble Lord, Lord Wedderburn, referred to reports from the ILO and the Council of Europe and asked whether they would be made available. I believe that he asked—if not on this occasion, then on a previous occasion—whether they could be placed in the Library. I have to say that they are made available. I believe that I said in Committee that they are made available to the Trades Union Congress and to the Confederation of British Industry and that they are not confidential. I have no objection to placing the relevant documents in the Library. Having said that, I hope that the noble Lord will accept the explanation that I have given and that he will feel able to withdraw his amendment.
Lord Wedderburn of Charlton: My Lords, I thank the Minister for his reply and especially for what he said about ensuring that ILO documents and the like are readily available. However, having based his reply upon the foundation, as I understood it, that this amendment was difficult to understand, the Minister then readily found that it was unnecessary and superfluous. I find that a somewhat awkward conjunction of argument.
If I may put it this way, I gave the Government reading time on this question because I raised it in Committee on another amendment. Perhaps the Minister will remember that I used the example of a gumboot worker and referred to a real example from years gone by of one trade union which organised
38
workers in the rubber industry and another trade union which organised workers in the shoe industry. The question that arose was: who should organise the workers in the gumboot factory? It seems wrong to say that those two unions cannot possibly reach an agreement on what is meant by the relevant occupation. I was not at all sure at the end of the day whether the Minister said that they could or could not reach such an agreement.
The amendment does not create exemptions. It has nothing to do with exemptions from the section. It has to do with parties who make agreements within the terms of the new law. The amendment does not, by any means, ban freedom of choice. It relates to the freedom of choice of all the people concerned—the members of the various unions and the members who want to join this or that union. As I understand it, the Government accept the fact that if someone comes along and says to a union, "I am a marine engineer and want to join you", and the union says, "No, sorry, we don't cater for marine engineers", that is all right because it is in their rules. That seems okay. All that I am saying is that that is "freedom of contract" within the clause and within the new law. Plainly, the same argument applies to all sorts of other contracts, as those who have more knowledge of industrial relations than I have will be able to explain.
I must advise Ministers generally that, as they know, the courts have now decided, by a decision of your Lordships' Appellate Committee, that they are allowed to look at Hansard. I must say that the answers to some of these amendments are likely to convince them that they had better reverse that decision, because it will not help them to look at this particular debate, which is on a matter that I should have thought rather important. It is about freedom of contract, which is something that I thought that the Government believed in. It is about an amendment which is not a breach of the new law; it is about its application. It is about industrial relations and about doing things sensibly by agreement, yet all we get is a negation of the amendment with the words, "It is too difficult to understand". With great respect to the Minister, that is not good enough.
However, perhaps I can do little more than let the amendment lie upon the table. Without pursuing the matter, I suggest to my noble friends that that is the right and proper course because, if the Government are now understanding the point, perhaps they will look at the matter again on Third Reading. Indeed, I say to them, "Please look at this again on Third Reading because there is an area of ambiguity which could easily be cleared up". If it is acceptable to the House, I shall let the amendment lie.
The Deputy Speaker (Lord Hayter): My Lords, I did not understand. Is the noble Lord withdrawing the amendment?
Lord Wedderburn of Charlton: My Lords, I understand that it is perfectly permissible to let the amendment lie and not to press the matter to a Division.
The Deputy Speaker: My Lords, is it your Lordships' pleasure that the amendment be withdrawn?
Amendment, by leave, withdrawn.
Clause 14 [Right not to suffer deductions of unauthorised or excessive subscriptions]:
Lord McCarthy Lord McCarthy moved Amendment No. 9:
Page 27, line 11, at beginning insert ("(1) Subject to subsection (10A) below").
The noble Lord said: My Lords, I sincerely hope that this will be a little simpler—at least for the Minister. In moving Amendment No. 9, I am speaking also to Amendment No. 13, which deals with the check-off system, which, in itself, is simple enough. The Minister said that he did not understand the amendment just moved by my noble friend Lord Wedderburn, but that he was against it. I hope that he will understand this amendment and be in favour of it.
This is the last attempt to deal with the realities of the check-off system. We are concerned solely with how the worker gets to know, first, that he is still paying to his union and, secondly, how much he is paying to his union. It seems to us that that is the essence of what we should be concerned with. In the amendment we seek to provide alternative means for establishing those two things. The amendment provides an alternative to the elaborate procedure in the new Section 68 of the 1992 consolidation Act, as amended by Clause 14 which, as we have seen, takes us into a whole maze of notifications, appropriate sums, calculations, authorisations and so on and so on.
In the amendment we suggest as an alternative a situation in which one would not have to apply that complicated and, it seems to us, fairly unpopular way of dealing with a problem which we know the CBI and the TUC do not like. We are not saying that the Government's procedure should be ruled out, but we suggest a parallel procedure. An alternative way of operating a lawful check-off would be based, in effect, on the situation which exists in most industries, firms and areas in which the check-off now exists.
First, the worker must personally authorise the payment by direct debit of a particular sum relating to his or her union subscription (just as happens now from banks accounts for payments such as mortgages, subscriptions to clubs and all kinds of things until we stop those direct debits). Secondly, the employer involved must agree to act as, in effect, the collector, agent or banker. As I have said, the employer agrees to act as agent and the worker authorises a direct debit. As long as the third condition applies—the worker is told regularly that such a deduction is being made and is told whenever it increases (which is precisely the system of rules operating for direct debits)—that system can continue until it is changed either by the worker saying that he does not want to pay any more or by the employer saying that he no longer wants to act as agent.
That is a precise parallel—or as precise as we can get it—to the procedure which exists in other circumstances. That is what we have tried to provide. However, it is also something that, as we pointed out in Committee, regularly happens in industry today
40
because workers obtain, with their pay slips, a notification from the employer of all deductions. As what we are suggesting happens now, in that employees are told regularly what deductions are being made for their union subscriptions, the amendment would not involve employers in any vast new bureaucracy. For that reason, we hope that it will be supported by the friends of the CBI and employers generally.
Of course—and I stress this or it might be misunderstood—the employee can stop payment if he does not like it, just as he can stop it with a direct debit at any time that he does not like it. Of course, the provisions of Section 63A still apply. If there is a complaint that, in one way or another, the provisions of the Bill are not being carried through, that complaint can be dealt with as specified in the Bill. What we suggest squares with all other kinds of deductions: for clubs, political parties, charge accounts at Austin Reeds and Harrods; membership of the National Trust, dependants' allowances; ex-wives and so forth. Those who say that this simple system cannot be done for trade unions have, once again, to say what is so different about trade unions that we cannot accept the provision. I beg to move.
5 p.m.
Lord Rochester: My Lords, in my view Clause 14 is another example of burdens being placed upon trade unions which do not apply to other organisations. I cannot see why individuals, in their capacity as union members, are to be obliged to re-authorise the deduction of union subscriptions from their wages every three years when the same individuals, as subscribers to clubs, charities or other organisations, can enter into a direct debit arrangement with their bank which continues until such a time as they choose to cancel it.
I do not see why employees should be treated as morons in one capacity and as intelligent citizens in another. As I see it, the amendment seeks to correct that anomaly by ensuring that union subscription deductions may be authorised by a direct debit arrangement; and, as a consequence of that arrangement, the obligation to re-authorise payment every three years should not apply. That proposal seems to me to be a reasonable one, and therefore I support the amendment.
Lord Mottistone: My Lords, the noble Lord, Lord McCarthy, said in passing that the amendment would appeal to the CBI among other bodies. Unfortunately since knowing about the amendment I have not had time to discuss it with the CBI so I cannot speak for it. There seems to be a certain amount of logic in the amendment, and I shall be interested to hear what my noble friend has to say.
Lord Howie of Troon: My Lords, in my position as a civil engineering journalist, I am a member of two well-known organisations, one of which is the National Union of Journalists, with which I agree from time to time, and the other is the Institution of Civil Engineers with which I agree more or less all the time. Under these proposals my debit arrangements

41
for subscriptions will be different for the Institutions of Civil Engineers from those of the NUJ. They are equally important to me in my profession, calling or trade—whatever one chooses to call it—and it is absurd that the subscription arrangements should be different. I am sure that the amendment—when the Government think about it—should be supported.
Lord Stoddart of Swindon: My Lords, I too support the amendment. I spoke about this clause earlier this afternoon and in Committee. I must confess that, having heard the replies of the Government Front Bench, I am still not convinced of the necessity for this clause, nor can I understand why it has been brought forward, unless it is to attack further the financial base of the trade union movement. As I understand it, there has been no call for such a provision from the employers. Again, as I understand it—I may be wrong —the employees have been happy to go along with the situation as it presently appertains. There has been no great call from the employers that the arrangements should be altered. Indeed, I further understand that if there is to be any authorisation at all, the employers would prefer that the authorisation period should be longer than three years and at least five years. Why are the Government coming forward with this restrictive provision?
The Government Front Bench is well aware that I am a fair and reasonable person, but on this occasion one is forced to the conclusion that the Government have a firm agenda, and it is an agenda which envisages a much smaller trade union movement than we have at present. I do not know their target; I have heard the figure of 25 per cent. and 20 per cent. of all employees. My guess is that it is the lower. So far, the Government have failed to convince me, and I feel sure that they have failed to convince this side of the House, that that is not one of the prime reasons for this clause.
One is bound to be suspicious, is one not? As has been pointed out by the noble Lord, Lord Rochester, and my noble friend Lord McCarthy, if employees once authorise a charitable donation, that will continue for so long as the employee does not cancel it. So why on earth should a trade union subscription be any different? That, too, is a voluntary subscription and, in many cases, it is also a charitable subscription because the articles of some trade unions are of a charitable nature. Why should trade unionists who are making a voluntary—not forced—contribution to a trade union be required to make an authorisation every three years, whereas if they want to make a regular contribution to the Red Cross or some local charity, they have to make the authorisation once only? This requirement does not just place a burden upon the employee and the trade union involved, it places a great burden on the employers themselves. And it puts the employer at risk, because if an employer deducts an amount from his employee's wages which has not been authorised, perhaps because of an oversight, the employer could be legally liable, taken to court and fined.
Lord McCarthy: My Lords, yes.
Lord Stoddart of Swindon: My Lords, I am grateful to my noble friend Lord McCarthy for confirming that that is right. Under those circumstances, I cannot understand why the Government are so resistant to every amendment put forward regarding this clause. I sincerely hope that they will find themselves less resistant this afternoon.
Baroness Denton of Wakefield: My Lords, I have listened with interest to the several points made by my noble friend Lord Mottistone and noble Lords opposite. However, noble Lords will not be surprised that they have failed to convince me. The noble Lord, Lord McCarthy, said earlier that I was defending in an indefensible way. I felt that our defence was straightforward: we believe that trade unions should fund their own ballots. I cannot be clearer than that, and I hope that I am also clear on this occasion.
Perhaps I may draw attention to the issue which is at point in Clause 14 in relation to the major differences, ideas and suggestions to which the noble Lord has referred. It was interesting to note that the examples quoted varied among noble Lords. The noble Lord, Lord Howie, referred to professional subscriptions; the noble Lord, Lord Stoddart, referred to charitable subscriptions; and the noble Lord, Lord McCarthy, referred to the use of charge cards at stores. In all those instances the funds being donated or assigned are already in the bank. In this instance we are talking about the money which is the wage packet of the employee and not already with him. We are talking about informing the employee of deductions to be taken from his salary and not the expenditure of funds already paid—
Lord McCarthy: My Lords, does the noble Baroness agree that in the average deduction slip which the average worker receives at the end of the average week or the average month the average employer is making many deductions from funds which are not in the bank? We want to square with that situation.
Baroness Denton of Wakefield: My Lords, they are legal, authorised deductions. We are not talking about choosing what to take. Clause 14 offers trade union members who pay their subscriptions through check-off significant new legal protections. With respect to the noble Lord, Lord Stoddart, the reform is rooted in improving the rights of individual trade union members and not the rights of employers. Many employers and employers' associations have supported the principle of the reform. The purpose of the amendment appears to be that when employers operate direct debit arrangements—and quite what is meant by the use of the term here is not clear—none of those protections applies. There is what appears to be the right to be informed when a deduction has been made but nothing more—not even a requirement that written consent should be obtained.
It seemed that as the Bill progressed through your Lordships' House and through another place, we had established that there was general agreement about some of the features of Clause 14. The principle of written consent seemed to be accepted, as did the right

43
to information in advance of increases and the right to withdraw from the arrangements at any time. But apparently that consensus has vanished. Under the terms of the amendments, employers are to operate something called "direct debit" arrangements—though it is certainly not what is normally understood by the term "direct debit"—and protection for the individual has disappeared.
Employers cannot operate direct debit. The direct debit system was established and is administered by banks and building societies. No one but banks or building societies may make direct debit deductions. The deductions are made from bank accounts, not from salaries. It is simply nonsensical to suggest that any arrangement which employers might operate in respect of trade union deductions can come under the heading of "direct debit".
Baroness Seear: My Lords, will the Minister inform the House how that lines up with the give-as-you-earn scheme, which is deducted? That similarly is deducted from salaries and not from money already in the bank. I ask for information.
Baroness Denton of Wakefield: My Lords, those are deductions approved by the individual. In this case we are trying to protect the individual's rights—
Lord Stoddart of Swindon: My Lords, I am sorry to interrupt but we on this side of the House are very puzzled about what the noble Baroness is trying to tell us. On the one hand, she says that she wishes to protect workers' rights in relation to trade union subscriptions but, on the other hand, she says that she does not wish to protect the rights of people under the give-as-you-earn schemes. They are exactly the same in law and they are the same in operation; they are authorisations made by the employee to the employer to deduct funds from his wages for a specific purpose. One purpose is to contribute to the trade union and the other is to contribute to a particular charity. What on earth is the difference? The Minister has not explained that and she certainly has not convinced us.
5.15 p.m.
Baroness Denton of Wakefield: My Lords, perhaps I may make it clear that we are not trying to stop check-off. Check-off is separate and special. Only check-off gives rise to the thoroughly unsatisfactory legal position under which the only legal right to stop making payment in this way is to leave the union. Additionally, there is the legal possibility that check-off arrangements which are a part of a collective agreement can be implied into an individual's contract of employment without his express consent—
Lord Wedderburn of Charlton: My Lords, I apologise for interrupting the Minister but she has made a pronouncement of extraordinary importance in regard to the present law. Will she confirm that she is of the opinion that the only way to end a check-off arrangement is for a worker to leave the union? If the Minister confirms that, will she tell us the precedent in case law or in statute on which that proposition is founded?
Baroness Denton of Wakefield: My Lords, the matter arose in Committee and there was a disagreement of view. There are many ways, but the only legal way—and that is what we are trying to correct—is to leave the union.
Lord Pitt of Hampstead: My Lords, I belong to the British Medical Association, which is a trade union. My subscriptions are deducted from my bank account every year. I do not have to leave the BMA to stop that. That is nonsense.
Baroness Denton of Wakefield: My Lords, I believe that the noble Lord is somewhat confused; that is not check-off, to which we are applying this clause. Additionally, there is the legal possibility that check-off arrangements which are part of a collective agreement can be implied into an individual's contract of employment without his or her express consent. The proposals in Clause 14 rectify the current and unsatisfactory legal status of check-off. If noble Lords are anxious to ensure that trade unions can collect their members' subscriptions by direct debit, there is nothing in this Bill or in any law to prevent them from doing so. The provisions in the Bill, which intentionally apply only to check-off arrangements, would not impact on an arrangement between a union and its members for subscriptions to be paid by direct debit from the members' bank or building society.
I suggest that the amendments do not have a real meaning. Employers cannot operate direct debit arrangements on behalf of their workers and there is no valid comparison between check-off arrangements and direct debit. Therefore, I hope that the noble Lord will not press the amendment.
Lord Stoddart of Swindon: My Lords, before the noble Baroness sits down, and I am sorry to trouble her—
Lord Mottistone: My Lords, on a point of order—
Lord Stoddart of Swindon: My Lords, there is no point of order.
Lord Mottistone: My Lords, this is Report stage.
Noble Lords: Stoddart!
Lord Stoddart of Swindon: My Lords, the noble Baroness has worried many of us. She appeared to be saying—and I wish that she would confirm it—that there are trade unions in this country which will allow their members to have their subscriptions paid to the trade union only through a deduction from wages and that they will not accept subscriptions in any other way; that is, not at a branch, by direct debit, by cash, by post and so on. I have never heard of that. If the noble Baroness has a precedent, she owes it to the House to give it.
Baroness Denton of Wakefield: My Lords, the trade union rules are such that the legal position as regards check-off is that the individual member cannot move from those rules.
Lord McCarthy: He can resign.
Baroness Denton of Wakefield: My Lords, that is what we are saying. The aim of our clause is to avoid that being the only way out.
Lord McCarthy: My Lords, the noble Baroness would not deny that an individual trade unionist who does not wish to pay by check-off can write to the secretary of the branch and say, "In future, issue me with a card. I am stopping check-off." There is nothing impossible about that and he would not have to leave the union.
Lord Greene of Harrow Weald: My Lords, may I ask the Minister a question?
Noble Lords: Order, order!
Baroness Denton of Wakefield: My Lords, I should point out that the clause is not based on what unions do or do not do. It is based on the unsatisfactory legal position which currently pertains. I do not disagree with the remark made by the noble Lord. that that is a possibility, but here we are dealing with the legal position.
Lord McCarthy: My Lords, we are extremely disappointed in the way in which the amendment has been received. It is notable that the Government have not been defended. They are not alone but they have not been defended. The only person who has intervened in the debate on the Government's side is the noble Lord, Lord Mottistone. He rather smiled upon the amendment and said that he thought that the CBI might also have smiled upon it. Therefore, all noble Lords have supported the amendment and none of the Government's doughty supporters felt that they wished to attack this significant amendment.
The noble Baroness gave us a series of interesting and novel arguments against it. First, she says that this cannot be done because the other examples which I gave all come from bank accounts—sums in the bank. That is not true, as my noble friends have said. An employer makes all kinds of deductions from people who do not have bank accounts; for example, you can give to Oxfam, you can pay into an insurance scheme and you can pay into a pension fund through the employer. Indeed, he makes superannuation deductions. Those people do not necessarily have bank accounts. That is the end of that argument.
Secondly, what has a bank account to do with this anyway? We are talking about deductions. Whether or not people have bank accounts and whether they have surpluses or deficits is not an argument for doing or not doing anything. In fact, it is not even a difference because in many cases people do not have bank accounts.
The noble Baroness said that a kind of consensus had been achieved in the other place which we are trying to get rid of by virtue of this amendment. I thought that I had made it clear—and I apologise if I did not—that this is an alternative to the existing provisions in a Bill. We are not saying, "Take all that nonsense away". We are saying that that nonsense will continue to apply, which will antagonise the employers and muck up the unions, unless our common-sense alternative is accepted. We are not
46
getting rid of the consensus in any way. The consensus agreed that there should be regular notification from the unions and the situation should not exist, which the Government always say does exist, where this can be achieved through collective agreements, although I know of no examples of that. In future, agreement will have to be given by the individual worker for the check-off to continue. That is the unsatisfactory aspect of the present legal position, according to the Government. We are quite prepared to get rid of that and that is not affected by our amendment because our amendment provides for individual agreement.
The noble Baroness says that the phrase "direct debit" cannot be used because it is sacred—it applies only narrowly. It is a term of art in law. If that is the only objection, we will call it direct deduction. If that phrase cannot be used, then we shall find another phrase which can be used. The phrase itself does not matter. We all know what we are suggesting; namely, an effective alternative which most people seem to think will work reasonably.
The final defence—and I have tried to think about this, as have other noble Lords on this side of the House—is the perpetual argument from the Government that they cannot accept the amendment because under the present situation, if a member leaves check-off, he leaves the union. The Government are saying that that is the only way that you can leave check-off. Suddenly and strangely, the Government do not like people leaving unions. They will not do what the TUC wants because they believe that the TUC wants to engage a situation in which people inadvertently leave unions. As great supporters of the trade union movement, they will not allow that. We must not allow workers to leave trade unions.
I have tried to think what that means. If you stop the check-off arrangement and at that point you do absolutely nothing else, of course you leave the union because you run out. That is what the Government wish to prevent people doing—running out. The Government should not worry about that because people will not run out of the unions: they will join them. If that is the only defence that the Government have, they do not have a defence and I must test the will of the House.
5.27 p.m.
On Question, Whether the said amendment (No. 9) shall be agreed to?
Their Lordships divided: Contents, 80; Not-Contents, 137.

Division No. 3

CONTENTS

Addington, L.

Cledwyn of Penrhos, L.

Archer of Sandwell, L.

Dean of Beswick, L.

Ardwick, L.

Diamond, L.

Ashley of Stoke, L.

Dormand of Easington, L.

Attlee, E.

Falkland, V.

Aylestone, L.

Fisher of Rednal, B.

Beaumont of Whitley, L.

Fitt, L.

Blease, L.

Gallacher, L.

Bonham-Carter, L.

Galpern, L.

Boston of Faversham, L.

Geraint, L.

Bottomley, L.

Graham of Edmonton, L.[Teller.]

Brooks of Tremorfa, L.

Bruce of Donington, L.

Greene of Harrow Weald, L.

Carmichael of Kelvingrove, L.

Grey, E.

47

Hampton, L.

Mottistone, L.

Hanworth, V.

Mulley, L.

Hayter, L.

Nicol, B.

Hilton of Eggardon, B.

Peston, L.

Hollick, L.

Pitt of Hampstead, L.

Hollis of Heigham, B.

Plant of Highfield, L.

Holme of Cheltenham, L.

Prys-Davies, L.

Hooson, L.

Redesdale, L.

Houghton of Sowerby, L.

Robson of Kiddington, B.

Howie of Troon, L.

Rochester, L. [Teller.]

Hughes, L.

Scanlon, L.

Irvine of Lairg, L.

Seear, B.

Jay, L.

Sefton of Garston, L.

Jay of Paddington, B.

Serota, B.

Jeger, B.

Shackleton, L.

Jenkins of Putney, L.

Stoddart of Swindon, L.

Kennet, L.

Strabolgi, L.

Kilbracken, L.

Taylor of Blackburn, L.

Lockwood, B.

Thomson of Monifieth, L.

Longford, E.

Tordoff, L.

McCarthy, L.

Turner of Camden, B.

Mclntosh of Haringey, L.

Wedderburn of Charlton, L.

Mallalieu, B.

White, B.

Mason of Barnsley, L.

Williams of Elvel, L.

Merlyn-Rees, L.

Williams of Mostyn, L.

Molloy, L.

Winchilsea and Nottingham, E

Morris of Castle Morris, L.

NOT-CONTENTS

Acton, L.

Fraser of Kilmorack, L.

Aldington, L.

Gardner of Parkes, B.

Alexander of Tunis, E.

Geddes, L.

Allenby of Megiddo, V.

Gibson-Watt, L.

Arran, E.

Goschen, V.

Astor, V.

Greenway, L.

Auckland, L.

Halsbury, E.

Banbury of Southam, L.

Hardwicke, E.

Belhaven and Stenton, L.

Harmar-Nicholls, L.

Bessborough, E.

Harmsworth, L.

Birdwood, L.

Hemphill, L.

Blatch, B.

Henley, L.

Boardman, L.

Hesketh, L. [Teller.]

Borthwick, L.

Hives, L.

Boyd-Carpenter, L.

HolmPatrick, L.

Brabazon of Tara, L.

Hooper, B.

Braine of Wheatley, L.

Hothfield, L.

Brougham and Vaux, L.

Howe, E.

Butterworth, L.

Hylton-Foster, B.

Cadman, L.

Jellicoe, E.

Caithness, E.

Jenkin of Roding, L.

Campbell of Croy, L.

Johnston of Rockport, L.

Carnegy of Lour, B.

Killearn, L.

Carnock, L.

Kinnoull, E.

Chalker of Wallasey, B.

Lauderdale, E.

Chelmsford, V.

Layton, L.

Clark of Kempston, L

Leigh, L.

Colnbrook, L.

Lindsay, E.

Colville of Culross, V.

Lindsey and Abingdon, E.

Colwyn, L.

Liverpool, Bp.

Constantine of Stanmore, L.

Long, V.

Cox, B.

McColl of Dulwich, L.

Craigavon, V.

Mackay of Ardbrecknish, L.

Cranborne, V.

Mackay of Clashfern, L.

Cullen of Ashbourne, L.[Lord Chancellor.]

Cumberlege, B.

Manton, L.

Davidson, V.

Margadale, L.

Denham, L.

Marlesford, L.

Denton of Wakefield, B.

Marsh, L.

Derwent, L.

Merrivale, L.

Dundonald, E.

Mersey, V.

Elles, B.

Milverton, L.

Elliott of Morpeth, L.

Mountevans, L.

Elphinstone, L.

Moyne, L.

Elton, L.

Munster, E.

Faithfull, B.

Murton of Lindisfarne, L.

Ferrers, E.

Nelson, E.

Finsberg, L.

Norrie, L.

Flather, B.

Orkney, E.

Forbes, L.

Orr-Ewing, L.

Fraser of Carmyllie, L.

Oxfuird, V.

48

Park of Monmouth, B.

Strathmore and Kinghorne, E[Teller.]

Pender, L.

Peyton of Yeovil, L.

Sudeley, L.

Plummer of St. Marylebone, L.

Swansea, L.

Rankeillour, L.

Swinfen, L.

Reading, M.

Teviot, L.

Reay, L.

Thomas of Gwydir, L.

Rennell, L.

Trefgarne, L.

Renton, L.

Trumpington, B.

Ridley, V.

Ullswater, V.

Rippon of Hexham, L.

Vaux of Harrowden, L.

Rodger of Earlsferry, L.

Vivian, L.

Romney, E.

Wakeham, L.[Lord Privy Seal]

St. Davids, V.

Saltoun of Abernethy, Ly.

Waterford, M.

Sharpies, B.

Whitelaw, V.

Skelmersdale, L.

Wynford, L.

Stewartby, L.

Young, B.

Strathclyde, L.

Strathcona and Mount Royal, L.

Resolved in the negative, and amendment disagreed to accordingly.
5.35 p.m.
Baroness Denton of Wakefield Baroness Denton of Wakefield moved Amendment No. 10:
Page 27, line 36, leave out ("date of') and insert ("day on which the worker signs and dates").
The noble Baroness said: My Lords, this is a technical amendment to remove a minor uncertainty in the drafting of Clause 14. Under the terms of the clause, check-off deductions may lawfully be made from an individual's wages if he has signed and dated an authorisation document. Once he has done so, and unless he chooses to withdraw his consent, deductions may continue to be made for up to three years. The amendment puts beyond doubt that the authorisation document should be dated with the actual date upon which it is signed and that it remains valid for three years from the day on which the worker signs and dates it. I hope that your Lordships will be able to accept the amendment. I beg to move.
Lord McCarthy: My Lords, I have no objection at all to the amendment.
On Question, amendment agreed to.
Lord Mottistone Lord Mottistone moved Amendment No. 11:
Page 28, line 6, at end insert:
("( ) Where the worker has received appropriate notice as defined in subsection (7) from the trade union or some other source, nothing in subsection (5) (b) above shall prevent a deduction of the increased amount of subscription from being a deduction of a permitted amount. For the avoidance of doubt, nothing in this subsection shall affect the right of complaint contained in section 68A.").
The noble Lord said: My Lords, in moving Amendment No. 11, I should like to speak also to Amendments Nos. 14, 15, and 16. The amendments deal with the question of just exactly how to identify the employers who, as I see it in the check-off, are acting as agents between the union and its members. Parts of the new Section 68 imply that employers are responsible for the moneys and that they are not just agents.
In relation to the last amendment, my noble friend Lady Denton said that because no one objected to Clause 14 in the other place she understood that all employers thought that it was all right. It is

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unfortunate that, in going through another place, the CBI took a view that it was better to put the employer's viewpoint to officials and not to bring it to the Floor of the House. Whether or not that was a good plan is another matter. But it certainly was not the case that the employers thought that Clause 14 was good. In fact, they foresee considerable problems with particular provisions in the clause.
Employers are particularly keen that the clause should show that they are merely acting in the role of a collection agency. They are not in any way concerned with the benefit which the individual may or may not derive through membership of a trade union or what that individual is prepared to pay for that privilege. It is their firm belief that any responsibility for notifying union members of increases in subscriptions, and indeed for reminding individuals of their right to pay their subscriptions by alternative means, should rest with the union and the union alone. They recognise—and here we return to the last amendment—that there are other ways of paying.
In the course of our debate in Committee my noble friend Lady Denton made the point that, as the employer is the person who collects the subscriptions, the employer must be held responsible for the deductions from wages and that, therefore, this justified placing the burden of notifying increases in subscriptions on employers. I still believe that that is a matter for the trade unions. However, although I would have preferred to table again the amendments that I tabled in Committee which were much more straightforward on this point, I have altered them—No. 11 is the key amendment that I have altered—to try to take account of what my noble friend Lady Denton said in Committee.
This amendment does not seek to remove the employer's accountability for unlawful deductions from pay, nor, as redrafted, does it remove the primary obligation on the employer to ensure that any subscription deductions do not exceed the permitted amount. However, the amendment ensures that in any case where the employee has received the prescribed form of notice from the union, there is no need for the employer then to duplicate the very same procedure. I believe that is a mild way of dealing with this situation. I hope therefore that my noble friend the Minister will give it great regard in deciding whether he can perhaps go some way to meeting me.
An additional benefit of Amendment No. 11 is that it would permit employers and trade unions to agree between themselves which of them would be responsible for providing the necessary notice. I am sure that where the check-off system operates, the unions would be happy to follow that kind of practice.
My Amendments Nos. 14, 15 and 16 are consequential to the main amendment and provide the necessary protection for the employer who has relied in good faith on the trade union having agreed to notify increases in subscriptions and subsequently finds himself being held liable for the union's own default, where this exists. I suggest to your Lordships that in this instance there must be some mechanism through which the employer can seek redress. It seems
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to me wrong in principle in Clause 14 that the only law insists on the employer finding the cash and has no particular call on the union to find the cash where there has been an error and the matter has been brought to a court or to a tribunal as the case may be in relation to the relevant subsections of this clause.
I believe that my amendments as redrafted go some considerable way towards meeting the Government's position. By ensuring that the individual receives a notice, by leaving the responsibility for the deduction with an employer, but at least providing some facility for alleviating the employer's burden if the employer incurs a burden before a court or a tribunal, I believe that my amendment satisfies all the objectives as put to me by my noble friend the Minister.
These amendments will not only avoid confusing the relationship between trade union members, their union and the employer but will relieve substantially the extra administration which employers currently face as a consequence of this part of the Bill. My noble friend the Minister made the point in Committee that as there is no legal duty to undertake the check-off system, this is a burden which is voluntarily assumed by employers. I have to say that there are significant advantages both for employers and for employees in carrying out the check-off. However, my amendments merely seek to permit that process to be made more manageable and not to create wrong impressions about who is responsible for what in this general picture. I hope that my noble friend will on this occasion be able to go some way towards meeting me. I beg to move.
Lord Rochester: My Lords, in Committee I agreed with the noble Lord, Lord Mottistone, and indeed with the TUC that it should be for the union rather than an employer to give notice to the employee of any increase in the amount of union subscription to be deducted from wages. We are now in the position that we have to accept the Government's view that this responsibility should lie with the employer. However, I support the noble Lord, Lord Mottistone, in his contention that in cases where the employee receives the prescribed notice from the union, the employer should not then be required to duplicate exactly the same procedure.
It must follow that where the employer has thus relied on the union to notify the increase in subscription, and the employer is subsequently held liable for the union's default, if that should happen, the employer should be entitled to redress in the form that is set out in Amendments Nos. 14 to 16. I hope that I have already made it plain enough that I would much rather see this clause excised from the Bill altogether, but if we must have it I feel that I should support the amendments.
5.45 p.m.
Lord Wedderburn of Charlton: My Lords, I hope that I may briefly register a mild word of agreement with the noble Lord, Lord Mottistone. I hope that does not cause him too much astonishment. I submit that the importance of this approach is that it is based upon the notion, as the noble Lord put it, that it is best

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if the employer and the trade union agree which of them is to send a notice or take whatever other step is necessary. The best way to operate a check-off is of course by a negotiated agreement. That can often solve problems of this kind. That does not rest on whether or not there is a duty in the law to operate a check-off. In a jurisdiction not many hundreds of miles away on the Continent that duty exists but, of course, it is operated through joint agreements. The trouble with the Government's clause, particularly as regards the approach the noble Lord, Lord Mottistone, has adopted, is that it does not give much scope for negotiated methods of operating the check-off. It seems to me that the employer must remain responsible in the last resort for his deductions, but that is a minor point compared with the measure of consensus that we have achieved that this matter should be operated by agreement between employers and unions. It is the failure of the Government to include that element that is causing them so much trouble.
Lord Boyd-Carpenter: My Lords, I hope that my noble friend Lord Mottistone can clear up one point in his amendment which puzzles me. The amendment states:
"Where the worker has received appropriate notice as defined in subsection (7) from the trade union or some other source".
What other source is that?
Lord Mottistone: My Lords, the notification may come from the trade union directly or it may come from an official within the company or from the trade union outside the company. There are various ways in which people can be informed of changes. The shop steward might inform workers of changes as I understand the position. Or it may be the case that a worker receives a letter from his general secretary. I do not know all the details of this matter but that measure was included as a necessary supplement.
Lord Stoddart of Swindon: My Lords, I do not wish to comment except to say that, bearing in mind the previous interventions of the noble Lord, Lord Mottistone, on points of order, the final exchange between the noble Lord and his noble friend although useful was completely out of order.
Viscount Ullswater: My Lords, I trust that I shall be in order. I am grateful to my noble friend Lord Mottistone for his remarks explaining his amendments. I know that in tabling these amendments he has endeavoured to take account of some of the objections we had to the similar amendments that he put forward when your Lordships considered this Bill in Committee. I am grateful to him for that. However, I have to say that I remain unable to accept his amendments.
The effect of the amendments would be to bring about a major change in the provisions contained in Clause 14 of this Bill. They would remove the requirement that advance notice of an increase in the deductions to be made from an individual's wages by his employer in respect of union subscriptions must be issued by that employer. As a consequence of that
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shift in responsibility, the remedy for a wrongful deduction would also be altered, to enable trade unions to be joined in tribunal proceedings. The substantive amendment in this group goes quite contrary to government policy on the issue of check-off deductions, and we therefore cannot accept it.
In explaining the Government's response to this amendment, I should like to return to the first principles of Clause 14. The provisions it contains are being introduced to protect the interests of individual trade union members who pay their trade union subscriptions through the check-off. The principles it contains were, of course, the subject of wide consultation and were welcomed by many.
Clause 14 offers trade union members new protection in two respects: it gives all trade union members the right to have their consent sought before these deductions are made and at intervals thereafter, and it gives them the right to receive information about increases in the amounts of money being deducted from their wages at source.
I believe that my noble friend, Lord Mottistone, and, I dare say, other noble Lords around the House, object to none of this. They may have comments to make about whether it is the right thing to do. We disagree only in respect of who should issue the advance information about increases required by the clause. I contend that in assigning that responsibility to the employer the Government have chosen the only logical answer to this Question, as well as one that is consistent with the policy underpinning the clause.
The subject of the clause is the check-off, which in this context is an administrative arrangement between employer and employee. It is quite separate and distinct from the direct relationship between the union and its members. It is a financial transaction. Just as the amount that an employer pays his employee is a matter between them, so any amounts of money that the employer deducts from that employee's pay in respect of trade union subscriptions are a matter between them both. The act of deduction is and must be the responsibility of the employer who effects the transaction.
We are resisting the amendment, therefore, because it is inappropriate to the purpose and effect of Clause 14. Of course we agree that trade unions should inform their members when they increase their subscriptions. They should so inform all their members—not just those who pay through the check-off. But that is not our concern here. We are concerned only with deductions made by employers via the check-off arrangement. It is only right that employers should remain responsible for ensuring that they are acting lawfully at all times.
It is entirely up to the employer to decide the terms in which he notifies the increases. He can certainly say in the notice that he issues that "The union has informed me … " and so on, but there is no need to spell that out on the face of the Bill.
It may be, however, that there are those who fear that the requirement to issue advance notice of increases places too heavy a cost burden on employers. Let me reassure your Lordships that any

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such fears are groundless. Employers are currently and will remain quite at liberty to pass on to the relevant union any costs associated with the collection of check-off payments. After all, in operating the check-off they are providing a service for the union.
It may also be that the consequential amendments of my noble friend Lord Mottistone concerning tribunal proceedings reflect a fear among employers that any eventual proceedings may also place a cost burden on them. Again, I can allay any such fears. Employers will be quite at liberty to require those unions on whose behalf they operate the check-off to indemnify them financially against any legal proceedings or wrongful deductions. Therefore, no employer need suffer any financial penalty for operating the check-off.
I understand that my noble friend has changed the wording of his amendments to take account of our discussions at Committee stage. I have considered them carefully, but I believe that they go against the principle of Clause 14. I hope that what I have said will persuade my noble friend that he should withdraw his amendment.
Lord McCarthy: My Lords, I wonder whether the Government realise how alone they are on this issue.
Noble Lords: Order!
Lord McCarthy: My Lords, I did not think that we had made a contribution from this side of the House. The Government will never know how alone they are!
Lord Mottistone: My Lords, I believe that it is perfectly proper for the noble Lord, Lord McCarthy, to speak because he has not yet intervened in the debate.
Viscount Goschen: My Lords, at Report stage it would not be in order because the noble Lord would be speaking after the Minister.
Lord Mottistone: My Lords, that is right. I had forgotten that.
I find it difficult to be convinced by my noble friend's initial statement that my amendments would totally upset what the Government believe to be the purpose of Clause 14. I cannot see that that is so. Nor did my noble friend provide a good explanation as to why, even if that is so, it is necessary for Clause 14 to be in such a form that the amendments would spoil it. I see the reason for Clause 14 —although I suspect that some noble Lords do not see it—but I do not understand why it is said bluntly that my amendments, including those moved at Committee stage, are unacceptable because they go against the principle of Clause 14. Nothing that my noble friend said, or that my noble friend Lady Denton said at Committee stage, has persuaded me otherwise.
Amendments Nos. 14 to 16 seek to write into the Bill protection for the employer in the event that he deducts an amount from somebody's wages about which the union has not told the employee and the employee takes the employer to the tribunal. My noble friend said that once the employer has paid whatever the tribunal or the court tells him to pay, he can get the money back from the union. If it is
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necessary for the employee to be given the powers which are contained in the latter part of the clause to enable him to take the employer to the tribunal in order for the employee to get his money back, it is not unreasonable for the Bill to state that, furthermore, the employer can then be reimbursed by the union.
My noble friend said grandly that the employer can, I suppose, sue the union. That will cost him money whereas if the matter is written into the Bill the process would be automatic. I do not consider it unreasonable to include those protective amendments, even if we agree that Amendment No. 11 destroys the purpose of Clause 14, which I do not understand. In a sense the issues are separate.
I am totally dissatisfied. However, I do not believe that there is any point in taking the matter to a Division because I do not believe that I stand a chance, in view of the result of earlier Divisions. Furthermore, to do so would remove the option, which I intend to work towards, to return to the argument at Third Reading. I have to he persuaded why the amendments are unacceptable. They provide a reasonable protection for the employer in his role as agent between unions and employees. My noble friend said that employers were just that. I was delighted to hear him say that because if they are agents, it should be clear beyond all peradventure in the clause that that is what they are. That would clarify the issue for everybody.
At this stage I shall reserve the right to return to the matter at Third Reading. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6 p.m.
Lord Howie of Troon Lord Howie of Troon moved Amendment No. 11A:
Page 28, line 9, at end insert ("or to an increase in a wage rate by reference to which the worker's subscription deductions are calculated and which has been notified to all members concerned by the Union.").
The noble Lord said: My Lords, I have been asked to put down the amendment by the Society of Telecom Executives, which is a moderate union to which I give extremely moderate advice from time to time when the need arises.
The amendment is a technical rather than a philosophical matter about which the union is worried. As I understand it, the Government's intention in Clause 14 is to deal with unions which seek to make subscription increases greater than those to which a union member might have agreed had that member been given a specific choice. The purpose of Amendment No. 11A is to cover those cases where unions and their members have agreed, usually through the rules, that the union contribution should be tied to a particular wage rate. I am told that that arrangement has two advantages. First, it can be represented as performance pay for the union. As a union achieves an increase in members' rates, so the union's income rises. Secondly, it is simply and readily understood. The number of minutes' work per week needed to pay for the union's subscriptions every year remains unchanged.
Where such arrangements exist, they are accepted by employees as a sensible way of regulating the

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contribution to the unions and are not a source of extra work to the employer. However, under circumstances in which union members have agreed to contributions on that basis, it is unreasonable for the Government to insist that each employer must remind each worker on every occasion that the application of the formula leads to such an increase—that is, every time the employer negotiates an increase in the wage rate—of an individual's right to cease paying union contributions.
Given that the law requires a three-yearly authorisation of check-off, those actions would add considerably to the administrative effort required by the employer in providing check-off arrangements. They must therefore provide an incentive to the employer not to provide such arrangements.
Noble Lords will be aware that trade unions are voluntary organisations. Their members belong to them because they have chosen to do so. The right of the union to seek an agreement with an employer so that the trade union members —the employees of the firm—may enjoy the benefit of that convenient way of paying subscriptions should be a matter for agreement between the union and the employer. I believe that it is perverse for the Government deliberately to make more difficult an arrangement which is simple, well understood and flows from a clear understanding of how contributions are to be determined.
The amendment seeks to put that right. It provides that, first, where the subscription increase flows directly from an increase in a wage rate on a published formula, and, secondly, where that increase has been notified to all the members concerned by the union, there should then be no requirement for the employer to have to take those excessive and potentially expensive actions. I believe that the main inconvenience of the provision falls initially upon the employer and runs against the Government's general approach to regulation. I beg to move.
Lord McCarthy: My Lords, I hope that the Minister will correct us if we are wrong because we are in great sympathy with what the noble Lord wishes to do. However, so far as we understand, the matter is dealt with on the face of the Bill. New Section 68(6) refers to that amount of increase which is disallowed because, in a sense, it has not been authorised. It states:
"So much of the increase referred to in subsection 5(b) is relevant as is not attributable solely to an increase in the wages payable on the relevant day".
That seems to us to cover the point that the noble Lord makes. However, he wishes to add,
"or to an increase"…
that is another qualification…
"in a wage rate by reference to which the worker's subscription deductions are calculated and which have been notified to all members concerned by the Union".
That last part of the amendment does not seem to be required by new Section 68(6) of the Bill. On that basis we do not favour the amendment. However, if matters are otherwise, I look forward to hearing from the Minister.
Viscount Ullswater: My Lords, I am grateful to the noble Lord, Lord Howie of Troon, for his words of explanation on the amendment. I am afraid that, reasonable as he suggests they are, I am unable to accept it.
One of the important features of Clause 14 is the new right that it gives to trade union members who pay their subscriptions by deduction from their wages at source to be notified in advance of any increase.
We have discussed separately the issue of who should be responsible for sending out that notification, and we have made it clear that it is our belief that the employer should, because it is his proper responsibility.
However, it is most certainly not our intention that employers should be unreasonably burdened by the new provisions. Therefore, we accepted in another place arguments put to us that where a union's subscription rate is calculated by reference to an individual's own earnings, for example as a percentage of his pay, as highlighted by the noble Lord, Lord McCarthy, then it would be unreasonable to expect employers to issue advance notice every time.
After all, if we take the case of a worker who pays a percentage of his pay as his union subscription, every time his pay alters his subscription will alter. He might earn overtime periodically, and each time his subscription might alter. Every time that subscription increased, his employer would have to notify him a month in advance. In many cases, such a requirement would simply not be practicable.
We therefore agreed that in these cases, advance notice of increases which result solely from an increase in the individual's wages need not be issued.
However, the amendment before us is very different. Its effect would be that advance notice of increases need not be issued when subscriptions are calculated by reference to a particular point on a pay scale rather than to an individual's pay.
The situations are quite distinct. Pay scales do not fluctuate as individual earnings may. They probably alter no more often than once a year. The likelihood of the employer being burdened by a requirement to issue frequent notices of increase simply does not arise.
In effect, a union which sets its subscription rate by reference to a particular point on a pay scale is setting a flat rate subscription in a different guise. They are quite entitled to do so. But it does not follow that a union member who pays his subscription in this way should be denied the protection offered to his workmate whose union sets what clearly is a flat rate subscription.
Moreover, whereas a worker will generally be well informed about any increases in his own pay packet and their implications, where appropriate, for his union subscriptions, he may not always be so well informed about increases in the central pay scale. Where an increase results from a change in the pay scale, he therefore should be personally informed by his employer.
As I have said, we can see no case for the amendment. I hope therefore that the noble Lord will see fit to withdraw it.
Lord Howie of Troon: My Lords, I am grateful to the Minister for his reply, and to my noble friend Lord McCarthy for his comments. I shall read them in Hansard tomorrow to see whether I understand them.
I have only one comment to make on the Minister's reply. The amendment was prompted by the Society of Telecom Executives, a body of people who are very well aware of wage scales and matters of that kind. There is no mystery there. They are kept fully informed by the union of the movements in wage scales and would not face the problems which the Minister seems to think other people would face. The Minister may well be right that my amendment is unnecessary. It was intended to remove burdens from employers—an unusual thing for unions to want—as well as to clarify the general issue.
I am a little dismayed that the Minister has turned me down so clearly, but I am not surprised. I have been involved in a small way, as today, in trade union legislation matters over the past 10 or so years as they have been discussed in this House. Over that 10-year period I have noticed one very significant change. Noble lords who are older will remember that when we debated these matters in the early 1980s, the Government would sometimes accept amendments. The noble Lord, Lord Mottistone, will certainly remember having amendments accepted in the past, or at least smiled upon. Sometimes the Government would say that they could not accept an amendment but that they would take it away and look at it. But there has been a change. In recent years it has seemed to me that the Government's only reply to a debate on an amendment is "No". That has the advantage of clarity—"no" being the shortest word which conveys the Government's intentions to us. With those remarks, and a sense of dismay, I shall certainly withdraw my amendment. I shall take further advice upon the reply that has been given to it and the comments that have been made in relation to it, and see what can be done later on. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McCarthy Lord McCarthy moved Amendment No. 12:
Page 28, line 14, after ("withdraw") insert ("or not withdraw").
The noble Lord said: The amendment is minimal. Its object is to continue the line of argument which we opened up in Committee when we debated Amendment No. 55. At this point the Bill deals with what happens when subscriptions rise. It says that the worker must get advance notice and be told how much he must now pay. Secondly, he or she must be told that they can at any time withdraw the authorisation by giving notice in writing. That in effect is what is on the face of the Bill. We argued that that was an unbalanced way of putting the position; that at that point the worker should be told of both options; namely, that he could "withdraw or renew" the authorisation and it was up to him to decide which option to choose. The noble Baroness said that that was unacceptable. At col. 1625 on 18th March, she said that it was unnecessary because it was obvious; the worker would know that anyway. She said it was impossible; the worker had no right to demand to
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renew the check-off, which was entirely a matter for the employer. And, as the Government have done so far when in doubt, she produced the point about the law saying that one cannot challenge the check-off without leaving the union. We shall leave that one aside.
We did not claim to understand those objections and we do not claim to understand them now. But we pushed a number of alternatives. As noble Lords will remember, we said, if the Government would not accept our alternative, would they accept "withdraw or continue"? That was said to be unacceptable because it could place an obligation on the employer. We suggested "renew or not renew". We were told that that was unacceptable. We suggested "withdraw or not withdraw". There I thought we might have made an inch of ground because we were told that the noble Baroness and the Government would not think that that bore any relation to the clause. At least it is not impossible. It is not misleading. It is not contrary to the statute. It does not bring up the one about resigning from the union. So we come back with the phrase which is, I believe, based on that. It is very similar. We are saying "withdraw or not withdraw". That seems simple enough. If your Lordships do not like that, we can have "cancel or continue", or "renew or fail to renew". What we are trying to do is quite simple. We think that this is an unfair way of putting the position. Nothing that could be put in the Bill would be an option, an involvement or a liability on the employer to continue the check-off if he did not want to do so. Of course it would not. But it would be accepted by the trade union movement as something which looked roughly fair. On that basis I move the amendment.
Lord Boyd-Carpenter: My Lords, surely this is a wholly unnecessary amendment. If the Bill provides, as it does, that one "may" withdraw—not that one "shall" withdraw, but one "may" withdraw—surely it is perfectly clear that the use of the word "may" means that one need not do so, otherwise there is no point in using the word "may". Therefore to put in "or not withdraw" is simply to add words to the Bill and is, I think, very bad drafting.
6.15 p.m.
Lord Wedderburn of Charlton: My Lords, the amendment moved by my noble friend is surely an example of something that the Government said they did not want to have in regard to mergers; namely, one-sided notices. He suggests that the notice should be even-handed and, if it must be there, it should make clear what the options are. It is difficult to see why that should not be so, and why it should be one-sided. The noble Lord, Lord Boyd-Carpenter, reminds us that the Bill says "may". That is quite true. But the employment relationship, like some other relationships on occasion, is not one in which words used are necessarily neutral. The foreman may tell you that your best interests might be served if you did a bit more overtime. That is perfectly neutral. But if one writes it down and looks at it in this House, that is not necessarily so. What is asked for here is that if the

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employer has to do this unilaterally—I must say that I hope the noble Lord, Lord Mottistone, will pursue the question of just how this ought to operate by agreement—the notice to be given should be even-handed.
Baroness Denton of Wakefield: My Lords, in replying to the noble Lord, Lord McCarthy, on this amendment, perhaps I may say that we made it clear in Committee that this type of amendment was unacceptable and —I was about to say—"unnecessary". My noble friend Lord Boyd-Carpenter has made that point for us. We believe that the word "may" implies total even-handedness. It is a very straightforward matter. There is no statutory right for a worker to pay union subscription by check-off. The check-off is a voluntary arrangement, although it may also become part of a contract between the employer and the worker. The proposals in this Bill are concerned to ensure that there are proper safeguards to protect individual trade union members who opt to pay their union subscriptions in that way. A worker will be required to give his or her written authorisation to check-off deductions. Once given, that authorisation can remain in force for up to three years. But the worker has a right under the law to withdraw from the arrangement at any time. The Bill simply requires the employer to remind the worker of that right when giving a notice of increase in the subscription deduction. The worker does not have to reaffirm his or her consent in writing on receiving that notification. The clause operates on the presumption that deductions will continue to be made, in accordance with the worker's original written authorisation, throughout the three-year period unless either the employer or the worker actively takes steps to alter the position.
The precise wording of the notice of increase will be a matter for the employer. The only statutory requirements are that it should be made at least one month in advance; should specify the amount of the increase and the increased subscription deduction; and should remind the worker of his or her right to withdraw from the arrangement at any time. That is entirely consistent with the Government's policy. To specify that the notice must include a reminder also of the right not to withdraw is, as I said, unnecessary.
Indeed it is possibly arguable that the amendment would cause confusion and increase the administrative burden which noble Lords opposite have been anxious to minimise. The notification of some kind of notional or implicit "right not to withdraw" might give the impression to those receiving it that some action is indeed required if they wish to continue the arrangements. We could have required written consent to be given whenever the amount of check-off were increased, in which case there might have been some force in the arguments that have been put. But we have not done so and I do not believe that noble Lords opposite are pressing us to do so. In the circumstances as I have described them, there is no case for an amendment along the lines of the one we are considering.
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Though some noble Lords opposite seem wary of this part of Clause 14, it is very simple. Individuals should have the right to withdraw from check-off arrangements whenever they wish. They should also be informed and reminded of that right. This provision will ensure that they are. I am sure that if the union is meeting their needs and providing the service and benefits for which they look, this provision is not something the unions need fear. I hope that the noble Lord is reassured about our position and will withdraw the amendment.
Lord McCarthy: My Lords, I am not reassured. The noble Baroness always has on me the same effect. She drives me back to Shakespeare. Lear said to Regan: "O, reason not the need". We know that it is not necessary. We say that it should be equitable and reassuring. Trade unions tell us that people will take it well and the absence of it is taken ill. But the Government do not care how people take things. Therefore I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 13 not moved.]
Lord McCarthy Lord McCarthy moved Amendment No. 13A:
Page 29, line 6, at beginning insert ("subject to subsection (2) below,").
The noble Lord said: My Lords, this is a rather more substantial amendment., which is grouped with Amendments Nos. 17 and 105. This amendment is a rewriting of one that we tabled in Committee on Schedule 8. However, it was late at night and the amendment came so far on in Schedule 8 that we took pity on the Committee and did not move the amendment. Therefore we have, as it were, brought it forward through this paving amendment in Clause 14.
We are trying to extend the period through which the new system for operating the check-off will come in from one year to two years. On the face of the Bill, in Schedule 8, it says that, from the moment the Government invoke the order that brings into effect that particular part of the Bill, the trade unions have one year to create the new system. The amendment seeks to give them two years.
The argument is mounted on several grounds. The fact is that the Government have never argued for one year. The question of whether the period should be one, two or three years has not been debated. At least I cannot find any record of it in the proceedings of the other place. Our information is that it is the opinion of the trade unions that a period of one year from the notification of the new system places them in a difficult position.
In the first place the unions must seek facilities to find out exactly where the check-off exists and which employers and to what extent employers are prepared to co-operate to continue to carry out the check-off. The unions have to do that for every place of work and every employer where they have members. Where problems arise, as we think they may—this has been part of our argument, though I readily agree that the Government do not accept it—in that employers may say that the system is difficult to operate or time consuming with its periodic reauthorisations, unions have to try to persuade employers of the benefits of

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continuing with the check-off. Where they fail to get employers to agree to continue with it, they have to make alternative arrangements.
As we have said over and over again in this Chamber, people talk about resigning from unions when check-offs are cancelled. Of course, in the real world there are many alternative ways to do things. It would be possible for the large number of union members with bank accounts to subscribe by direct debit. That is happening in a considerable number of unions which are organising workers who have bank accounts—for example the First Division Civil Servants. I understand that all or very large numbers of them pay by direct debit. But, where direct debit is not possible, alternative arrangements will have to be found.
Many noble Lords will know that in the 1960s, before the spread of check-off, there was a system—a race—of trade union collectors. Most of them required some form of commission and, in order to carry out their work, had to make arrangements and get facilities to move about the factory, shop or office during the employer's time to collect subscriptions. All those arrangements would have had to be negotiated. Individual unions might find that they had to have a mix of different systems, including maybe some new systems as well.
If the Government want to indicate that this measure is not what it says and is not intended to undermine and reduce the influence and standing of trade unions; and if they want to assure us that it is designed to look after the individual members whom they want to see get fair play, they ought to be prepared to accept this very modest amendment, which is aimed at giving the unions a little more time. I beg to move.
Lord Rochester: My Lords, in the light of what the noble Lord, Lord McCarthy, said, it seems to me that one year is a short time for a union to be given to do all the work involved in obtaining the initial authorisation for the check-off arrangement. Therefore, I hope that the Government will view the amendment sympathetically. If they cannot accept it, I hope that at any rate they will offer an explanation which will satisfy noble Lords as to why the period is as short as that included in the relevant schedule.
Viscount Ullswater; My Lords, I am grateful to the noble Lord, Lord McCarthy, for his explanation of these amendments. He will not be surprised if I say that the amendments are not such as I feel able to accept.
The arguments about Clause 14, with its new provisions on the check-off, have been well rehearsed. There is no need to go over that particular ground again. However, perhaps it is worth setting on the record—this perhaps is what the noble Lord, Lord McCarthy, wished from me—that the Government attach great importance to the new protection that will be offered by this clause to individual trade union members who pay their subscriptions through the check-off. It is therefore fundamental to the clause that all those who pay their subscriptions in this way
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—and not just those new to the arrangement after the clause comes into effect—should benefit from the new protections at an early stage.
At the same time, we recognise that employers who already operate the check-off will inevitably need some time to adjust to the new requirements for those who are already covered by check-off arrangements. That is why we decided that it would be appropriate to allow the period of a full year for those already paying union subscriptions in that way to be given the opportunity to give their written consent. This is the provision that has been made in Schedule 8 to the Bill. The one-year period will also give the employer plenty of time to establish systems for giving advance notice of any increase to those from whom he makes deductions. Of course, everyone will have the right to withdraw from the check-off at any time as soon as the clause comes into effect: that is entirely consistent with the new protections we are introducing.
Whatever the good practice of certain employers, the fact is that in certain cases individual written consent is not a necessary legal prerequisite of the making of check-off deductions. The clause puts right that unsatisfactory position. It is only right, therefore, that we should extend it as a legal right to all those already covered by the check-off at a relatively early date. Moreover, many people covered by the check-off when the clause comes into effect, even if they did give written consent in advance, may have done so many years ago. There is therefore no logic or justification in the argument that people already covered by check-off should have to wait a further two years before they are given the opportunity to reconsider and, if they wish, reaffirm their consent to the arrangement.
I certainly do not accept the argument that one year places too heavy a burden on employers and that they will not have time to make the necessary adjustments. A year is a more than adequate period, and the clock only starts ticking after the clause comes into effect, itself after this Bill's well publicised passage through the House and attainment of Royal Assent. Employers will have had plenty of notice of what is required of them. Effectively, they will be given the opportunity to plan for something that will probably not need to be completed until the autumn of 1994.
I am therefore unable to accept the amendment. It would introduce an unacceptable delay into the implementation of the important provisions in the clause. I hope that my words reassure the noble Lord, Lord McCarthy, that employers will have sufficient time to make the arrangements, and that he will be persuaded to withdraw the amendment.
6.30 p.m.
Lord Wedderburn of Charlton: My Lords. before the noble Viscount sits down, I should like to ask a question. I may have misunderstood him and perhaps he will correct me if I am wrong. His argument seems to rest upon the notion that we need the new clause in order to give employees the opportunity to reaffirm or withdraw. That is a central element of government argument and one must ask again—believing that the notion is wrong and that there is no need for a new clause to allow people to withdraw from check-off,

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which can be done immediately—whether the noble Viscount has any legal basis for that proposition. It has been repeated both by him and his noble friend. On these Benches we have said continuously that in terms of the law it is wrong.
Viscount Ullswater: My Lords, I believe that we have covered this area on a number of occasions. My noble friend and I have sought to say that there are occasions when a collective agreement is in force when, first, an employee may not have given his personal written consent to that and, secondly, if the rules of the union are such that that is also part of the collective agreement, then the employee would not have the opportunity of withdrawing from check-off.
I appreciate all the arguments put forward from the Front Bench opposite and other parts of the House. In many instances, perhaps 99 out of 100, the unions will make accommodation for the member if they so wish. We have said that. We have said that the legal position is such that there may be some instances where the only remedy an employee can take, as the noble Lord from the Front Bench opposite said, is to resign from the union. That is a position we wanted to obviate.
Baroness Seear: My Lords, can the noble Viscount quote any collective agreement where that is in fact the case?
Viscount Ullswater: My Lords, I do not have a case with me. There are many instances where collective agreements are changing from day to day. It would not be right to burden the House with such detail.
Lord McCarthy: My Lords, can the noble Viscount tell us what such a collective agreement would say? It would regulate that most unregulated thing in collective agreements—the relationship between a union and its members. It would ask the employer to agree that, if the individual withdrew from check-off, then the union should not volunteer an alternative way to belong. It is a world of madness. Why should any union sign such an agreement or an employer want it? It is nothing to do with employers.
Viscount Ullswater: My Lords, with the leave of the House, our replies have not stressed whether we can quote instances, but what is the legal position. In this House we are dealing with what the law states. I have said what the law states. That is how I identify to noble Lords the current position of the law and the situation that we intend to change by the Bill.
Lord McCarthy: My Lords, I suppose I am not surprised. I would be more pleased if the Minister was less grateful and more agreeable.
It is true that we have not rehearsed the one-year rule. That is a defect on our part. Both in this House and in another place we allowed the whole question of a period of grace—if I may call it that—that the Government have given the trade union movement, to go by default. On the other hand, the Minister knows that it has not gone by default in negotiations with the Trades Union Congress and the Government. He knows that the Trades Union Congress and the
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individual unions have made it clear that they believe that it will be extremely difficult to implement this within 12 months.
The Minister says that employers will know how long they have to move. My information, which seems to be reasonable, is that employers will not move until they have to. If the Minister went to an employer today and said, "You know there is a Bill; you know it is coming and that you have a year", that employer would not want to know. Employers are dealing with the difficult problem of making their businesses survive. They will get round to it in the end. but how long they will give the union and what can be done in the time at their disposal is of concern. However, the Government are not concerned about the matter.
When the Government make so much, as they do continually, about all the people who have never agreed to be on the check-off, and say that they want to give them rights, it suggests that we are back to our old friend from Bartholomew Fair and his enormities. It suggests that enormities exist. In the Government's mind there must be thousands of trade unionists who want to leave unions but who cannot do so for some reason that is not explained, or who cannot leave the check-off without leaving unions which they do not want to do for some reason that is not explained. It is only when the Government on their white horse come galloping in with this provision that all those people will be able to leave their unions. That is nonsense.
The Government are not giving rights to anybody. Anybody who wants to can leave the union tomorrow. The Government arranged that and from their point of view it was right. But they cannot quote it at us. That was done when the Government abolished the closed shop. That made it possible for anybody to leave a union at any time and the Government are proud of that. But they cannot come trotting along here saying, "We need another piece of legislation to free people so that they can leave unions". That is not the present circumstance. This is a situation where unions are asking for a reasonable time to introduce a new system. We calculate that 6.25 million trade unionists are on check-off. I believe that they deserve a little time and that I should test the mood of the House on the issue.
6.38 p.m.
On Question, Whether the said amendment (No. 13A) shall be agreed to?
Their Lordships divided: Contents, 58; Not-Contents, 117.

Division No. 4

CONTENTS

Airedale, L.

Galpern, L.

Blease, L.

Graham of Edmonton, L.[Teller.]

Boston of Faversham, L.

Carmichael of Kelvingrove, L.

Gregson, L.

Cledwyn of Penrhos, L.

Grey, E.

Clinton-Davis. L.

Hampton. L.

Dean of Beswick. L. [Teller.]

Hollick, L.

Diamond, L.

Holme of Cheltenham, L.

Donoughue, L.

Houghton of Sowerby, L.

Dortnand of Easington, L.

Hughes, L.

Eatwell, L.

Jay of Paddington, B.

Falkland, V.

Jeger, B.

Fitt, L.

Judd. L.

Gallacher, L.

Kilbracken, L.

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Lockwood, B.

Scanlon, L.

McCarthy, L.

Seear, B.

McGregor of Durris, L.

Sefton of Garston, L.

Mclntosh of Haringey, L.

Serota, B.

Mallalieu, B.

Shackleton, L.

Mason of Barnsley, L.

Stoddart of Swindon, L.

Merlyn-Recs, L.

Strabolgi, L.

Molloy, L.

Taylor of Gryfe, L.

Nicol, B.

Tordoff, L.

Peston. L.

Turner of Camden, B.

Pitt of Hampstead, L.

Wedderburn of Charlton, L.

Prys-Davies, L.

Whaddon, L.

Rea, L.

White, B.

Redesdale, L.

Winchilsea and Nottingham, E

Richard, L.

Young of Dartington, L.

Rochester, L.

NOT-CONTENTS

Acton, L.

Kenilworth, L.

Ailesbury, M.

Kimball, L.

Aldington, L.

Kinnoull, E.

Alexander of Tunis, E.

Lane of Horsell, L.

Annaly, L.

Lauderdale, E.

Arran, E.

Leigh, L.

Astor, V.

Lindsay, E.

Auckland, L.

Lindsey and Abingdon, E.

Banbury of Southam, L.

Long, V. [Teller.]

Belstead, L.

Lucas of Chilworth, L.

Biatch. B.

McColl of Dulwich, L.

Boardman, L.

Mackay of Ardbrecknish, L.

Borthwick, L

Mackay of Clashfern, L.[Lord Chancellor.]

Boyd-Carpenter, L.

Brabazon of Tara, L.

Manton, L.

Brentford, V.

Margadale, L.

Brougham and Vaux, L.

Marlesford, L.

Buckinghamshire, E.

Merrivale, L.

Cadman, L.

Mersey, V.

Carnegy of Lour, B.

Milverton, L.

Carnock, L.

Mottistone, L.

Chalker of Wallasey, B.

Mountgarret, V.

Chelmsford, V.

Moyne, L.

Clark of Kempston, L

Munster, E.

Colnbrook, L.

Murton of Lindisfarne, L.

Colville of Culross, V.

Napier and Ettrick, L.

Cranborne, V.

Norrie, L.

Cumberlege, B.

Orkney, E.

Darcy (de Knayth), B.

Orr-Ewing, L.

Davidson, V.

Oxfuird, V.

Demon of Wakefield, B.

Pender, L.

Derwent, L.

Rankeillour, L.

Dundonald, E.

Rennell, L.

Eccles of Moulton, B.

Renwick, L.

Elles, B.

Rodger of Earlsferry, L.

Elphinstone, L.

Romney, E.

Faithfull, B.

Saint Albans, D.

Ferrers, E.

St. Davids, V.

Finsberg, L.

St. John of Bletso, L.

Flather, B.

Saltoun of Abernethy, Ly.

Fraser of Carmyllie, L.

Skelmersdale, L.

Fraser of Kilmorack, L.

Stewartby, L.

Gardner of Parkes, B.

Strathclyde, L.

Geddes, L.

Strathcona and Mount Royal, L.

Gibson-Watt, L.

Glenarthur, L.

Strathmore and Kinghorne, E.[Teller.]

Goschen, V.

Gray of Contin, L.

Sudeley, L.

Hacking, L.

Swansea, L.

Harmar-Nicholls, L.

Thomas of Gwydir, L.

Harmsworth, L.

Trefgarne, L.

Hemphill, L.

Trumpington, B.

Henley, L.

Ullswater, V.

Hives, L.

Vinson, L.

Holderness, L.

Vivian, L.

HolmPatrick, L.

Wakeham, L.[Lord Privy Seal.]

Hooper, B.

Hothfield, L.

Whitelaw, V.

Howe, E.

Wynford, L.

Hylton-Foster, B.

Young, B.

Jeffreys, L.

Resolved in the negative, and amendment disagreed to accordingly.
6.45 p.m.
[Amendments Nos. 14 to 17 not moved.]
Clause 16 [Requirement of postal ballot]:
Baroness Turner of Camden Baroness Turner of Camden moved Amendment No. 18:
Page 30, line 32, at end insert:
("( ) In cases where less than 50 members are to be balloted, each person entitled to vote must be given either—

(i) a convenient opportunity to vote by post, or

(ii) an opportunity to vote immediately before, immediately after, or during his working hours at his place of work or at a place which is more convenient for him.").

The noble Baroness said: My Lords, in Committee we sought to retain the right of union members to have a workplace ballot on strike action. The Government's position in this Bill is that henceforth all strike ballots must be conducted by postal means. The reasons given by the Government for the change are not exactly compelling. The Government were themselves responsible for introducing legislation giving the option of either workplace or postal ballots in the case of industrial disputes. That was as recently as 1988. No evidence that I am aware of—it was certainly not advanced by the Government in Committee—has arisen since 1988 to warrant such a change of view in such a very short timescale.
As recently as the 1987 Green Paper the Government were saying that they accepted that postal ballots were less suitable than workplace ballots in the case of potential strike action. Nothing surely has changed since that time. Everyone agrees that workplace ballots have significantly higher turnouts. For some reason or other, that does not commend itself to the Government as an argument, although if the Government are concerned with ensuring that decisions are based on as wide a mandate as possible it is surprising that they do not consider that that has any importance. Indeed, the Government's own code of practice on industrial action ballots makes it clear that secret workplace ballots are particularly suitable where speed of obtaining the voters' response is of the essence.
Industrial action ballots are different from other kinds of ballots or elections where the time factor may not be quite as important. In his response in Committee the Minister appeared to be arguing that, since 1988 election ballots had to be fully postal, now was the time to bring industrial action ballots into line. But everyone with experience of industrial relations knows that ballots about strikes are about workplace issues of some immediacy. It is necessary not only for union members but also for employers to know the results as quickly as possible.
It is accepted on all sides—or at least it was—that workplace ballots, held under proper, secret conditions, are much more likely to achieve a quick result. We have not been prepared to let the arguments go entirely, even though we made no progress in Committee. We have come back with another

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amendment which would allow workplace balloting in cases where the numbers to be balloted are small. We have set the figure at 50.
Why small numbers? The Minister may well say that there is no logic in making this distinction. However, I believe that the Government themselves were at one time considering a threshold figure—a figure of 50, I believe, although 30 was mentioned on one occasion—and I do not understand why they have decided to depart from that conception. If there is to be postal balloting for large industrial disputes, which could have a major effect on public or private services, surely the same conditions should not apply in the case of much smaller groupings of members, often employed in small undertakings. For such undertakings the arguments are surely strong; that everyone, the employers and the employees, need to know the result as quickly as possible. The employers themselves may not have the resources to cope with a continuing situation of instability. They, even more than the large organisation, need to know as soon as they possibly can what the result of a test of employee opinion is.
Moreover, with relatively small numbers of people, it is much easier to organise secret and safe ballots on site. I hope therefore that the Minister will be able to tell us that he is able to accept at least some of the arguments we have advanced. I was involved, during the time I was a union official, with workplace balloting held on site. My experience was that ballots were always conducted in a rigorously safe, secret and acceptable way. The employers provided facilities. Very often, the numbers to be balloted were relatively small. On the other hand, very tight security was possible with a small number of people involved. If the Government are concerned about security, as appeared to be the position when we discussed the matter in Committee, surely it is understandable that where there are smaller numbers it is much easier to evolve a safe and secure system.
For those reasons, I hope that we shall have a favourable response from the Minister. We have tried, as we have with all our amendments this evening, to cope with some of the arguments advanced by the Government in Committee. We have not come back with exactly the same arguments and exactly the same types of amendments. We have looked carefully at what was said by the Minister in Committee and have tailored the amendments we have put forward to your Lordships today directly to meet some of the arguments advanced by the Minister.
This amendment comes within that category. We have set the number at 50. We believe that that is a reasonable number and that if the Minister were to look favourably upon it at least a message would he sent to the trade union movement outside, which feels very strongly that it has been "sorted out" by the Government and that it has been the recipient of extremely hostile, indeed punitive, legislation. It would send out a signal to unions and their members that the Government are prepared to be reasonable
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and to listen to some of the arguments advanced on behalf of unions and their members. With those comments, I beg leave to move the amendment.
Lord Boyd-Carpenter: My Lords, I cannot see the logic of having a differential when the ballot is over or under 50. I feel that this is an unnecessary addition to the Bill. In addition, I am intrigued by the words of the postal alternative:
"a convenient opportunity to vote by post."
It seems to me a formula that could give rise to infinite dispute as to whether a convenient opportunity was, or was not, given. I take it that "a convenient opportunity" does not mean a stamped addressed envelope.
Baroness Turner of Camden: My Lords, will the noble Lord give way?
Lord Boyd-Carpenter: My Lords, of course.
Baroness Turner of Camden: My Lords, is the noble Lord aware that,
"a convenient opportunity to vote by post",
is the wording used in previous legislation?
Lord Boyd-Carpenter: My Lords, yes, indeed. It seems to me, and I abide by it, that it is a phrase which can give rise, or could give rise, to quite an amount of argument. It is quite unnecessary. However, what is really unnecessary is to make an arbitrary distinction between cases in which the ballot may be over or under 50.
Lord Finsberg: My Lords, the noble Baroness, in introducing the amendment, said that everyone who was engaged in industrial relations would agree that it is a good thing to have workplace ballots. I have had 30 years' experience of industrial relations in the workplace, having to deal with trade unions of all kinds. I do not agree with her. All too often one has had the spectacle I go back to my early days when I was working down the coal mines and had nothing to do with industrial relations—of so-called "free" workplace ballots where there was intimidation and things of that sort. People who saw what happened then know how true that is.
The noble Baroness says that most trade unions act correctly. I agree with her. Unfortunately, when one is legislating one has to be certain that one does not leave loopholes for unions like the NUM or the old electrical trades union, which in those days employed every possible means of perverting decent industrial relations. I believe therefore that it is not necessarily right to rely upon workplace ballots. A workplace ballot can be coloured by the swift emotion of something that has gone wrong. In my judgment, it is better to have a postal ballot, which gives people the opportunity of considering what the issue really is.
Then, of course. there is the idea of 50. Why not 48, or 52? The number has been drawn out of a hat merely to make it different from the argument which was lost in Committee. I hope very much that the Government will not accede to the ingenious attempt to re-insert the "Trojan horse" that many of us were glad to see disappear.
Lord Wedderburn of Charlton: My Lords, however experienced or inexperienced in industrial relations law one may be, the Government are the origin, as Ministers know, of the proposal that a different rule should apply to workplaces where there are less than 50 union members being balloted. The 1991 White Paper, in paragraph 3.21, says that the Government,
"propose that an industrial action ballot should have to be conducted by fully-postal voting in every case where more than 50 union members are entitled to vote."
There was discussion of the possibility of semi-postal balloting in smaller workplaces and what would be be appropriate. The suggestion of my noble friend is that the Government's belief, based upon the existing state of knowledge and research in the area, was that workplace ballots, no doubt with considerable requirements in regard to secrecy and so on, on the whole produced a higher turn-out. That was the suggestion in the research carried out in the early 1980s by Undy and Martin. I remember asking the Minister at some point in Committee whether there was further research that went the other way.
If you really want to have a high turn-out and a ballot conducted in such a way that it is likely to reflect the opinions of the members, then the Government's conclusion in 1991 was that, at any rate in the smaller areas, you could do that satisfactorily by a workplace or semi-postal workplace ballot. What the Government have never explained is, first, whether they have any further research the other way and, secondly, why they have changed their mind about smaller workplace ballots.
Baroness Seear: My Lords, I support the amendment. In small concerns, if a row blows up, it needs to be dealt with quickly. It is much better dealt with through a workplace ballot. Of course there may be abuses, but there can be abuses in any system that you adopt. That is not an argument that really holds very much water.
We know that things have gone wrong. They have gone wrong on postal ballots as well as on workplace ballots. This is a sensible amendment. As the noble Lord, Lord Wedderburn, has said, the Government favoured something of the sort not so long ago. If they would change their minds on things that are worth changing their minds on instead of things that are not, we may well have got on a great deal better.
7 p.m.
Lord Stoddart of Swindon: My Lords, I too should like to support the amendment. I would not have spoken except that the noble Lord, Lord Finsberg, got to his feet and gave us the benefit of his personal experience in industry, which of course we value. Perhaps I could give him the benefit of my experience in industry. When I worked at the power station we often had workplace ballots, which in fact I ran, and ran successfully. There was no question of the secrecy of the ballot being breached, nor was there any intimidation. They worked successfully.
If we can run them at workplaces where there are 250 people, and run them successfully, I am sure that we can run them, and that it is desirable to run them, at workplaces where there are only 50 people. Because
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the ballot would not usually take place about wages—they were probably fixed by the wages council, which we still have but not for much longer, or perhaps by wider collective bargaining—we would be talking about disputes that were local, and very local, and which probably by the time the postal ballot had taken place would have been settled. Therefore, everybody would have embarked on a great deal of time and money wasting. There are good reasons why we should accept this amendment for small concerns.
I believe that employers would be satisfied with that as well. Imagine the entrenched positions that could occur if there was a postal ballot and a majority had voted for industrial action when in fact the need for industrial action had passed. The men may well feel, "Well, we voted for this, we must now do it". It is ridiculous to have postal voting in circumstances such as this. The Government ought to see the benefit of what, as we have heard, they themselves were putting forward at earlier stages of their industrial attack on trade unions and they should agree to this amendment.
Baroness Denton of Wakefield: My Lords, first, let me say that I was intrigued to hear earlier this afternoon that I drove the noble Lord, Lord McCarthy, to Shakespeare. I am sorry that on this occasion I shall not have the benefit of learning to what I drove him.
I have listened carefully to the noble Baroness's arguments. I would be the first to acknowledge her direct experience with unions. But I make no apology for the fact that my reasons for resisting this amendment are essentially the same as those already expressed.
Perhaps I should begin by explaining why we consider it important to ensure that union members have the protection of fully postal voting in an industrial action ballot. First, we believe that only fully postal voting can guarantee members that the ballot will be conducted in a proper manner. It is important that those entitled to vote in an industrial action ballot should be free to do so away from the pressures which might otherwise be brought to bear if that ballot was conducted in the workplace.
Today, as on many previous occasions when we have discussed the Bill, noble Lords and noble Baronesses have indicated that that is not their experience, but my noble friend Lord Finsberg indicates today that it is his, and as the noble Baroness said there will always be instances of abuse to any system. We believe that postal voting has a minimising effect. The temperature of the argument is not related to the size of the vote.
Secondly, only fully postal voting gives union members greater assurance that the ballot is free from the kind of impropriety which might occur—I stress "might"—if ballot papers were collected from the workplace, or returned for counting, otherwise than by post. There is no overriding reason to suppose that the pressures which might be brought to bear during workplace voting will be any less where only a small number of members are involved—indeed, they may well be greater.

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The noble Baroness, Lady Turner, suggested that it may be that in this area the employers did not have the experience or the capacity to deal with these issues. I would point out that instances where the union membership of a particular union voting on this issue was 50 or under would not only apply to smaller employers. But, as my noble friend pointed out, there are no sound reasons for the setting of a threshold, which, at whatever level, would be arbitrary and could give rise to anomalies.
We remain convinced that only fully postal voting for an industrial action ballot can give members sufficient assurance that they have cast their vote in a properly conducted ballot. We do not believe that it is unreasonable to require fully postal voting for all industrial action ballots, and I hope that the noble Baroness will withdraw her amendment.
Baroness Turner of Camden: My Lords, I do not at all accept what the noble Minister has said in response to the debate on this amendment. First, she talks about rights. In my amendment there is an alternative. It says:
"(i) a convenient opportunity to vote by post, or
(ii) an opportunity to vote immediately before, immediately after, or during his working hours at his place of work or at a place which is more convenient for him".
I should have thought that that gave individuals a right. It does not take away a right; it gives a right. It is a right to have the opportunity to vote at work when it may be very much more convenient than to have it sent to your postal address. That may well be the case —and I did not make this point earlier—where the workforce may be a travelling or itinerant one. That is not an unusual situation nowadays.
I do not accept the arguments about intimidation. That experience probably arises from a good many years ago. The Government themselves were responsible for introducing the concept of workplace balloting. The trade union movement at the time, certainly the TUC, was quite willing to accept this and developed its policies around workplace ballots on the basis that this was likely to involve a much higher turnout than postal balloting, and that has certainly proved to be the case.
Moreover, as my noble friends have said, the disputes that we are talking about are often small and local ones, obviously involving, from the amendment, relatively small numbers of people, and obviously small companies. This is a sensible amendment. I regret that the Government have seen fit to trot out arguments in opposition to it that certainly do not seem to me to hold water, and I am sure that numbers of your Lordships will join with me in that sentiment. I do not intend to press this at this point in the Bill. I simply express my concern and regret that, although this reasonable amendment has been advanced by us at this point in the discussion of the Bill, the Government have nevertheless seen fit to adhere to their—
Lord Stoddart of Swindon: —reactionary stance, my Lords.
Baroness Turner of Camden: My Lords, my noble friend is absolutely right— the reactionary stance that they have shown throughout the discussions on this Bill. I shall not advance, as would my noble friend Lord McCarthy, some quotation from Shakespeare on this occasion, but I shall say that it sometimes seems that the Government make a lot of fuss—much ado about nothing—when they talk about intimidation. I have not heard from the other side any examples of intimidation to justify coming forward with such an enormous, wide-ranging and sweeping piece of legislation as we have been discussing this evening. Having said that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Viscount St. Davids: My Lords, I beg to move that further consideration on Report be now adjourned. In moving this Motion, I suggest that the Report stage begin again at 8.10 p.m.
Moved accordingly, and, on Question, Motion agreed to.

Merchant Shipping (Registration etc.) Bill
Brought from the Commons; read a first time, and to be printed.
Road Traffic (Driving Instruction by Disabled Persons) Bill
Brought from the Commons; read a first time, and to be printed.

Local Government (Overseas Assistance) Bill
7.11 p.m.
Baroness Flather: My Lords, I beg to move that this Bill be now read a second time.
This is a wholly admirable Bill, which was chosen by Mr. Jim Lester in another place on being successful in a ballot after no fewer than 18 years of trying. It combines Jim Lester's local authority background with his abiding interest in creating ever-stronger links with the newly democratic countries of Eastern Europe, as well as with less developed countries overseas. He has worked unstintingly towards this end throughout his parliamentary career. It was therefore quite natural for him to hasten to remove the doubt which had suddenly appeared as to the ability of local authorities to provide any assistance at all to equivalent bodies abroad.
The position on "technical twinning"—that is, on technical assistance to twinned overseas authorities —had always been uncertain. However, with lawyers working for individual authorities and the Local Government International Bureau concluding that, on balance, sufficient powers could be inferred to allow authorities to undertake such work, it was certainly understood that there would be no legal problem if the cost of such assistance were to be paid from central government grant.

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What brought the issue to the fore was, of course, the sudden increase in demand from Central and Eastern Europe. Following the collapse of communism in Central and Eastern Europe in 1989, there was keen interest on the part of Ministers at the Department of the Environment, and in the local government communities, in assisting the setting up of stable and efficient systems of local government in these newly democratic countries. This was seen as having the potential to make a major contribution to the achievement of political stability and economic recovery there.
The result was, first, a series of Foreign Office-sponsored programmes of assistance to local government in Poland, Hungary, Czechoslovakia and Bulgaria and, secondly, the technical links scheme. The technical links scheme was set up by the Foreign Office and the Local Government International Bureau in June 1991. It was a joint central-local government initiative, financed by a £700,000 per annum allocation from the Know-How Fund. Its purpose is to contribute to the growth and management of local democracy. Projects aim to deal with urgent technical difficulties, such as environmental, public health, infrastructure or service delivery problems.
Secondly, a programme was set up by the EC, called the Ouverture programme, on the initiative of Strathclyde Regional Council. In addition to Strathclyde Regional Council, selected Spanish, German and Italian local authorities were involved. The programme is funded by the European Community.
Local authorities showed a strong initial interest in both schemes and nine projects were approved in November 1991. However, by December 1991 doubts had begun to arise over local authorities' powers to do such work. For technical twinning, local authorities have relied on the discretionary power in Section 137 of the 1972 Act, on the economic development power in Section 33 of the 1989 Act, and on the power to carry out work conducive or incidental to their functions under Section 111 of the 1972 Act.
A court case on another matter dealt with the scope of Section 111 of the Local Government Act 1972, on which some local authorities had relied. It became clear that Section 111 could not be used because the provision of assistance overseas could not be regarded as conducive or incidental to the discharge of an existing function.
At the same time, lawyers advising the Audit Commission argued that the use of Section 137 and Section 33 was inappropriate because both required expenditure carried out under them to bring direct and commensurate benefits to the authority's area or inhabitants. It was difficult to see how overseas technical assistance could be said to provide such direct benefits. The Audit Commission's lawyers concluded that they were unaware of any powers under which local authorities in England and Wales could carry out such work.
It was clear that, unless action could be taken to remedy these legal doubts, there was a risk of losing an extremely effective scheme for getting assistance to
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Eastern Europe. Jim Lester, by choosing this Bill, has made it possible to save this initiative and British local government's capacity to use its expertise in this manner.
The Bill is a simple two-clause Bill. Its purpose, set out in the Long Title and in Clause 1(1), is to provide local authorities with a power to provide advice and assistance on any matter in which they have skill and experience to overseas bodies engaged in any of the activities of local government. The Bill originally provided for that assistance to be given to overseas bodies engaged in local government. Under the present drafting of the Bill, a British local authority can provide advice and assistance on any matter in which it has skill and experience. This is not restricted to its own functions or to the activities which it and the overseas body have in common. It can provide assistance to any overseas body that has some function or activity in common with or comparable to British local government.
Clause 1(3) makes this power subject to a requirement for the Secretary of State's consent. This is the part of the Bill which has been least welcomed by the local authority associations and they have pressed for its removal. However, it is felt that this is a necessary safeguard to ensure that no significant costs of overseas assistance will fall on the council taxpayer. The consent requirement is not meant to be a heavy-handed control. It is there as an ultimate safeguard. The Secretary of State proposes to give a general authorisation for the provision of technical advice and assistance within the scope of the Bill. That will cover work which is carried out under projects such as the technical links scheme and Ouverture; work where the costs of the work fall below specified de minimis levels; assistance where work up to a specified cost arises out of town-twinning links (that is, up to twice the expenditure which was incurred on these links during the previous year or, where there was no such expenditure, up to twice the town-twinning links planned for the current year); and, finally, assistance where the cost is equal to the income which the local authority receives for providing it.
Clause 1(5) prohibits financial assistance. Originally, the clause simply prohibited all financial assistance. However, the associations pointed out that that would prevent them from donating equipment, such as fire engines, for which they no longer had any use, but which retained a notional capital value. That was accepted, and the current wording is designed to allow such assistance while maintaining the prohibition on financial assistance.
Clause 1(6) is a standard clause, the purpose of which is merely to authorise any expenditure necessary by the Department of Employment, the Scottish Office and the Welsh Office in administering the power provided by the Bill. Clause 1(7) lists the local authority bodies which are to be given the new power. The only significant omissions are parish, town and community councils. The reason for that is merely that Jim Lester and Ministers concluded that since those councils do not employ technical officers it is unlikely that they would have much to contribute to the provision of technical assistance abroad.

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Once the Bill is on the statute book, local authorities will at last have a clear power to provide technical advice and assistance overseas. Despite their understandable reservations about the consent requirement, I believe that the associations see the Bill as a significant step forward which will enable authorities to proceed confidently with the projects under the Technical Links Scheme, Ouverture and other schemes. I beg to move.
Moved, That the Bill be now read a second time —(Baroness Flather.)
7.21 p.m.
Lord Graham of Edmonton: My Lords, perhaps I may first apologise for my husky voice. I have a cold, but I realise that the Bill is not to be sniffed at. I shall keep as far away from the Dispatch Box as I can. I shall begin by congratulating the noble Baroness not just on her good fortune in being a friend of my friend Jim Lester, but on the excellent way she has served the House by explaining so clearly the problems and the solutions that the Bill encompasses. I, like the noble Baroness, and no doubt others who are interested, read carefully the proceedings on Second Reading, in Committee, and on Third Reading in another place. It is clear that, although one or two reservations were put forward in another place on behalf of the local authority associations, there is a depth of goodwill which transcends any party difficulties.
I am happy to begin and end what I have to say by telling the House that we on the Labour Benches recognise the necessity for and value of the Bill. I was interested to read what Mr. Jim Lester said in another place, especially when he described how his interest in the subject was first aroused. He attended a meeting of the International Union of Local Authorities in Toronto in 1970. One's interest in a subject can be stimulated and maintained for a long time as a result of personal experiences. I went to a similar conference a year or two earlier when I was the council leader of the London Borough of Enfield. In the 1960s I had the good fortune to go to the conference before the one in Toronto.
The conference I attended was held in Belgrade, Yugoslavia. I have vivid memories not just of the conference but of the subjects discussed. The differences between Delhi and Pittsburg were debated. The problems resulting from the environment in which people lived in those cities was one of the major subjects. Since then, as a result of the friendships I made and the interest that was aroused, I have always had a high regard for the contacts made at local government level. The noble Baroness has a long experience of serving in high office in local government. I am sure that she will share my feelings.
I was taken by a phrase used by Mr. Lester (col. 106 of Hansard) who produced the slogan, "Think globally, act locally". That is a fair summary of the feeling behind the Bill. From what the noble Baroness said, it is plain that no one will be under any illusion that this will be a free lunch for those involved or a free ride on a vehicle that will do great things; it is not.
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I like the concept that we in Britain have a local government structure from which it is possible for other parts of the world to benefit. Those of us who have been involved in local government have a great deal for which to be thankful. I hope that we do not go too far down the road of saying that what we in this country do, and what the Government have done to local government, provides a model that we should export to other parts of the world. For instance, my good friend Mr. Tony Banks, in his speech in another place, reminded us that there have been 144 Local Government Acts since 1979, 51 of which have been major measures. They did things such as removing control of the budget from local authorities; reducing the rate support grant, which has been cut drastically under this Government; abolishing key local authorities such as the GLC and the other metropolitan counties; transferring key services such as education from local government; taking control nationally of teachers' pay from the local authority body. They have done a great deal of harm with regard to capital receipts. It is a bit rich if people believe that we are the acme of perfection when giving advice on accountability to other nations.
Having said that, we can all be grateful that the authorities interested in this matter recognise that the Bill is too good an opportunity to be missed. I am sure that in Committee I shall be tabling one or two amendments which have already had a canter over the course in the other place. The noble Baroness rightly said that the associations (the Association of County Councils, the Association of District Councils, the Association of Metropolitan Authorities, CoSLA and the Local Government International Bureau) all expressed reservations about the requirement for consent. The noble Baroness was quick to say that too much should not be made of that point and that consent would not be withheld for reasonable projects. However, the associations tell me that they see no need in principle to import a requirement that the Secretary of State give his consent to individual schemes.
Local authorities are responsible bodies, acting within the law and accountable to their electors. They are subject to increasingly tight ministerial control of their overall expenditure. We understand that there is no likelihood that the provision will be dropped; nevertheless, we shall raise the matter. Then there is the "without prejudice" clause. It would have been preferable had the Bill included a clause making it clear that the new power would have no effect upon any existing power to provide technical assistance to bodies outside the United Kingdom. We believe that the clause could be re-drafted to meet the legitimate concerns of the authorities while keeping to the mainstream of what is wanted.
General powers are intended to be used only where no more specific powers exist. I shall wish to raise in Committee the subject of powers for parish, town and community councils. There was previously some doubt as to whether those lower-tier authorities were to be included in the Bill. It is now clear that in England and Wales, at least, a number of such councils are in the process of developing technical

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twinning or partnership links with local communities in Eastern and Central Europe and Africa. That is something which should be encouraged. An amendment at a later stage might serve a useful purpose. Mr. Lester told us what was going on at the moment. He told us that under the existing scheme Bradford is represented in Czechoslovakia; Doncaster, Hull, Dorset, Berkshire, Scunthorpe and Southampton, are all working in Poland; and Hungary has schemes from Croydon, Chorley and Kent. Therefore, we can see that a great deal is being done by authorities in all parts of the country, whether the councils are controlled by Conservative, Labour or any combination of the parties.
We have a useful additional shot in the armoury of local authorities which, despite the enormous burdens under which they labour, believe they have a contribution to make. They want to use their resources and expertise not least among their officers and in the initiatives which they have started. I congratulate the noble Baroness, Lady Flather. She can be assured of the support of Members on these Benches. We look forward to improving the Bill a little further in Committee.
7.30 p.m.
Viscount Goschen: My Lords, perhaps I may first say how pleased I am that my noble friend Lady Flather, who has such a distinguished record in local government, is taking the Bill through the House. As my noble friend explained, the purpose of the Bill is to empower local authorities in Great Britain to provide advice and assistance in matters in which they have skill and experience to bodies outside the UK which have equivalent or comparable functions.
There is nothing new about local authorities providing such assistance. It has often arisen out of the educational and cultural links between British and foreign communities which are commonly known as "town twinning", though it has in the past been on a small scale and incidental to the main twinning activity. Lawyers working for many local authorities, and indeed for the Local Government International Bureau, have in the past concluded that powers permitting such activity could he implied or inferred.
Certainly, as my noble friend explained, it was always understood that if the cost of technical assistance overseas —so-called "technical twinning" —were borne by central government there could be no difficulty in terms of legality. So that when, following the events of summer 1989 in Eastern Europe a strong wish arose in British local government to provide advice and assistance to local authorities in those countries the Government were only too keen to support that. It led to the creation by the Foreign and Commonwealth Office and local authority associations of the Technical Links Scheme. There were initially a substantial number of applications from local authorities for funds to carry out work under it. But by December 1991 doubts had arisen about authorities' powers to undertake such work. Unless we could take action to remedy those legal doubts it was clear that we would lose an extremely effective scheme for getting vital practical assistance to Eastern
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Europe. The situation could be remedied only by primary legislation but there were and are no appropriate government Bills available to allow us to clarify the legal situation here.
We are, therefore, delighted that my noble friend is taking this Private Member's Bill through your Lordships' House. The Bill has the Government's strong support. It offers an excellent example of co-operation between central and local government. Starting from just after First Reading in another place there has been a series of very constructive meetings and detailed correspondence between the Bill's sponsor, the Government and the local authority associations. Throughout we have aimed to accommodate the concerns of local government. As a result the associations have given the Bill their full support.
The associations' principal concern about the Bill has been the fact that the power to provide technical assistance is subject to the Secretary of State's consent. We are afraid that there have to be safeguards against the hopefully remote possibility of an irresponsible authority wasting council tax payers' money. But that is not meant as a heavy-handed control. To meet the associations' concern, the Bill has been amended to provide for the Secretary of State to give a general authorisation. The result will he that applications for the Secretary of State's consent will be very much the exception and that most technical assistance will be covered by the general authorisation.
Other anxieties have related to the need for a "without prejudice" clause, a relaxation of the prohibition on financial assistance and whether the Bill should empower parish and town councils to provide technical assistance overseas. The Bill has already been amended in order partially to meet some of those anxieties so far as that is possible. But the associations have been asked to provide further information on them so that they can be considered again in time for Committee stage.
My noble friend's Bill is a small measure but one of considerable potential value. It would enable British local authorities to provide vitally needed technical advice and assistance to local government in Central and Eastern Europe and also in the wider world. In doing so it will in a small but important way be helping to build democratic and economic stability in those countries. I commend the Bill to the House.
7.35 p.m.
Baroness Flather: My Lords, perhaps I may comment on what was said by the noble Lord, Lord Graham. I was delighted to hear that he counts Jim Lester as a friend, as do I; indeed, he is not only a friend but a mentor. Since I have been a Member of your Lordships' House I have received a great deal of help, advice and encouragement from Jim Lester.
I was sorry to hear a note of politics creep into the discussion; I had hoped that we could keep that out. At least we may be sure that we shall not export what central government may or may not have done to local government in this country but only what local government is able to provide by way of expertise to those who will benefit from that.

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The noble Lord, Lord Graham, spoke of local authorities being responsible bodies in relation to the consent of the Secretary of State. Perhaps because I spent 15 years in local government I can say that some authorities are responsible but some are not. The vast majority are responsible but we know only too well that some are not and, therefore, some safeguard may be necessary.
As regard town and community councils, we are still waiting for evidence from the local authority associations. It is not ruled out that they will be included but as yet the associations have not provided the required amount of evidence. The associations' case for providing a "without prejudice" clause is that it has been found by the lawyers of the Audit Commission that there is no specific power to provide such assistance to authorities overseas. The local authorities associations are asking that that particular power, which does not exist, should be preserved. It is somewhat convoluted that we are here trying to introduce a new Bill specifically to provide that power while saying at the same time that the power which existed should be preserved. The fact is that no such power exists.
I commend the Bill to your Lordships.
On Question, Bill read a second time, and committed to an Unopposed Bill Committee.
The Earl of Strathmore and Kinghorne: My Lords, I beg to move that the House do adjourn during pleasure until 8.10 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 7.38 to 8.10 p.m.]

Trade Union Reform and Employment Rights Bill
Consideration of amendments on Report resumed.
Clause 17 [Notice of ballot and sample voting paper for employers]:
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 19:
Page 31, line 9, at end insert:
("( ) For paragraph (a) of subsection (2) of section 226 there shall be substituted the following—
"(a) the union has held a ballot in respect of the action—

(i) in relation to which the requirements of section 226B so far as it is applicable before and during the holding of the ballot were satisfied,

(ii) in relation to which the requirements of sections 227 to 231 were satisfied, and

(iii) in which the majority voting in the ballot answered "Yes" to the question applicable in accordance with section 229 (2) to industrial action of the kind to which the act of inducement relates"

and paragraphs (h) and (c) shall take effect in accordance with Schedule 7 to this Act.").
The noble Lord said: My Lords, Amendment No. 19 is a somewhat complex matter. Therefore, I must spend a little time on it in an excited and somewhat crowded House.
The Minister has kindly corresponded with me on this matter. Unless he indicates that he has changed
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his mind already, I shall have to take on the task of trying to change it. At first sight it appears to be a somewhat technical point but on inspection I have found that it is a central matter of the law relating to trade union liberties.
It concerns the question of when industrial action, even if in contemplation or furtherance of a trade dispute, will retain protection or immunity because it has the support of a ballot. The question is what hoops must be negotiated for there to be the support of the ballot.
The problem arises in that Part II of the Trade Union Act 1984 set down the basic procedures of ballots for trade union industrial action: they must be in secret; they must be only by those members entitled to vote and so on. Those basic ground rules have remained roughly the same. However, in 1988 a further requirement was imposed in respect of industrial action whereby it had to have the support of a ballot if it were not to be the subject of an application to the court by a member of the union. That was not within the vision of the 1984 Act. Therefore, the question arose as to whether the procedures introduced by industrial action generally in 1984 and those introduced in 1988 in respect of a member's application to the court were to be the same or different. I remember that there was some debate on the matter and the government of the day took an extremely sensible view; namely, that it would be absurd to have two ballots or two different sets of procedures. Indeed, the 1988 Act provided, as Section 62(a) of the consolidation Act now provides that:
"Nothing in this section shall be construed as requiring a union to hold separate ballots for the purposes of this section and sections 226 to 234".
In other words, the Government established a sensible procedure—the only workable procedure—that procedures in the various types of situation requiring ballots would be the same. That was recognised in the 1988 debates and I shall not weary your Lordships with them, but it was an extremely important acceptance by the government of the day that that was the only workable system.
That unity of procedure or, perhaps I should say, that unity of sets of requirements as to what is involved in the support of a ballot has now been broken in this Bill for the first time. I make no complaint but it is only to be found in paragraphs 46 and 73 of Schedule 7. My amendment seeks to rescue the issue from the schedule and bring it out into the light of day of the Bill itself. That seems a more sensible way to debate the matter on Report.
As the Bill stands, where a ballot on industrial action is relied upon by a union and legal action is brought by a member of the union, it must satisfy Sections 227 to 231 of the Consolidation Act. Those are mainly the rules about voting, conduct in the ballot, procedure and so on. However, as regards support for the ballot in a case where an employer pops up as a plaintiff in an action in tort, but nevertheless looking at the same ballot, there is an addition to the same paragraph. Here we have Sections 227 to 231 plus Section 231A. That section contains the requirement that the union must notify

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an employer of the result of the ballot. My amendment would change that in order to try to reunify the procedures.
I am well aware that my amendment would not fully achieve that objective because in the course of its procedures the union must, if it is to succeed against the employer, satisfy three other hurdles: give notice to the employer of those who are to ballot; provide a specimen of the ballot paper and a seven-day notice of those who are about to take action.
The Minister was good enough to write to me on this matter but he only confirmed that that is the Government's intention. Indeed, he expanded on the point and told me that under Section 62, a trade union member will not be able to apply to the court simply because the union has failed to provide details of the ballot result to an employer or—and he added this to be wholly accurate, as I was not in Committee—to notify the employer of its intent to conduct the ballot.
The noble Viscount told me that it would be possible to unite the two sets of procedures but the Government do not believe that that is appropriate or necessary. One can see the force in that. When a member of a union is bringing an action without anything more, one may well ask how it is possible to tell the union that it must notify the employer, although the threat is of industrial action and there would not necessarily be a difficulty in finding to whom one should give notice.
However, the whole description looks at the problem through the wrong end of the telescope. When the union discusses industrial action, the officers and national executive will not know whether the ultimate challenge to the union is to come from an employer, from a member or indeed—and there are three hoops—from a third party. If we look at the schedule, we end up with three possibilities: requirements that the union must satisfy if it is a union member who pops up as applicant to the court; a further requirement—Section 213A, which is another reason for deleting it— if a third party, perhaps a supplier or a customer, brings an action in tort; and three extra hoops if it is the employer who is party to the dispute.
I must admit that the force of that has struck me only since I began to look at the matter in Committee. That situation cannot be right. Let us suppose that one is advising the union, what should one say? One must advise the union that it should go through all the hoops in case it is the employer who launches an interlocutory injunction action in the High Court. One must give that advice. One cannot depend upon it being a member's action where the requirements would be lower, or action by a third party where they would be in the middle.
My amendment would get rid of only one of the oddities. But it is an essential one so far as concerns the third party; namely, Section 231A whereby notice to the employer is a required hurdle when the third party brings an action in the High Court. However, in a sense, it is also to put the Government on notice that, if the Bill is passed in its present form, they should come clean and say that in every case the union
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will have to do what in practice it will have to do—that is, give all the notices to the employer in issue when it is contemplating industrial action.
The Minister must try to put himself in the position of advisers and union officials trying to comply with the law. If you are trying to comply with the law, you will have to tell people to go through the largest number of hoops. Therefore, although the matter is rather technical to begin with—I fully appreciate and acknowledge that further amendment would be needed—if the amendment were accepted, in spirit at any rate, the Government would be able to come back perfectly properly on Third Reading and discover something. That is what Third Reading is for. They could return and say, "Well, we do intend that everyone must go through all the hoops and so we will put it clearly". Alternatively, they could say that that is not their intention and make it clear why there is some division or unify the matter downwards, which would be the preferable arrangement. I apologise for sometimes putting the matter in a technical way. The simple question is: will the Government try to make this last-ditch attempt to recapture the unity of procedure in all types of ballot for industrial action no matter who is the applicant or plaintiff? I beg to move.
Baroness Turner of Camden: My Lords, I support the remarks made by my noble friend on this extremely complicated and difficult matter. I believe that he has flagged up the difficulties of those advising unions about these legislative quagmires who, if the Government do not do something about amending this part of the Bill, will have to say to people, "You have to go through all the hoops and take all the hurdles if you are to remain safe and preserve immunity". That was probably not what was intended in the first place. I should be most grateful if the Government would agree to look further at the matter, as suggested by my noble friend. I hope that they will perhaps return with something a little different on Third Reading. I await with interest to hear what the Minister has to say.
Viscount Ullswater: My Lords, the substantive effect of the amendment, in combination with Amendments Nos. 101 and 102, would be to remove the sanction for a union's failure to take the steps required to notify details of an industrial action ballot result to employers. I am sure that the noble Lord, Lord Wedderburn, will recognise, therefore, that it is perhaps unacceptable to government.
I am grateful to the noble Lord for the words he used as regards the points he raised in Committee which it would appear I did not answer at that stage. I sought to address them by way of letter to the noble Lord. I am glad that he found the letter helpful. I believe that it sets out the Government's position. I recognise that the amendment that the noble Lord moved would produce a certain symmetry of requirements, if I may put it that way. It would be equally possible to do that by giving union members the right to restrain unballoted calls for industrial action by their union where the union had failed to

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take the steps required under the new Section 231A of the 1992 Act, which would be inserted into that Act by Clause 18.
As I mentioned, I wrote to the noble Lord, Lord Wedderburn, to explain that, in our view, it is neither appropriate nor necessary to allow union members to bring proceedings under the statutory right set out in Section 62 of the 1992 Act on the grounds that their union has failed to provide details of a ballot result to an employer.
The requirement to provide ballot result details to employers is a new one. The noble Lord is right to draw our attention to that fact. The law on industrial action balloting has not hitherto required a union to do anything by way of providing information to employers. If there are to be such requirements, there must be a sanction for non-compliance. The appropriate sanction in this case is to remove the statutory immunity that a union would otherwise have to protect it against proceedings in tort. However, the 1991 Green Paper proposal to introduce the requirements did not suggest that they should also apply so as to enable a union member to bring proceedings under the provisions of Section 62. We see no need to give union members a sanction to operate in respect of those particular requirements.
The noble Lord also asked why we are proposing the different arrangements in respect of which employers could bring proceedings in tort because of denial of the new notice requirements, and those who could do so because of failure by a union to supply ballot result details to a particular employer. Again, it is true that we have adopted a different approach in respect of a failure to satisfy the requirements for provision of notice of intent to ballot and intent to organise industrial action. However, those are entirely new requirements which do not have any relationship to existing law such as exists with respect to the provisions of the new Section 213A and the present Section 231. Moreover, the notice requirements have been constructed with the purpose of providing information to employers about likely events affecting their own employees. The ballot result requirements do not necessarily work in the same way. A single ballot can cover more than one employer's workers if that is the choice of the union and the union itself would have to accept the consequences of its decision as to the scope of the ballot.
The noble Lord and the noble Baroness, Lady Turner, asked what advice should be given to unions and stated that it should be the duty of government to provide advice in those circumstances. We say that the unions would be well advised to abide by all aspects of the requirements on industrial action. There is no harm in reiterating that fact. We believe that the requirements are there for a proper purpose. We intend that they should apply. Indeed, we have put in the statute what we consider to be the proper—and only the proper—sanctions for non-compliance.
I hope that the explanation I have given as to why the presently proposed provisions should remain as they are will satisfy the noble Lord. I can see from the
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way that he is shaking his head that I have probably not persuaded him. Nevertheless, I hope that he will feel able to withdraw the amendment.
Lord Wedderburn of Charlton: My Lords, the Minister has tried to convince me. Of course, I accept what he says and that the best thing to do is to abide by the law. But what I am trying to tell him, the Government, my noble friends and the rest of your Lordships is that it is very hard to know what you have to do to abide by the law as it stands. It is just not fair to put this to people pretending that there are three options when in fact there is only one. The law should not do that; good law never does. Good law is open and straightforward.
I beg the Minister to try and find his way through the schedule and tell us what he would advise people to do. In his reply, he dealt with two possibilities; namely, that the procedure is different where a union member complains than it is where the employer is the plaintiff or complains. However, I shall put that argument to one side. Let us suppose that I accept that it will be a different series of hoops for union members. I do not really believe in that; but, all right. There are not just two possibilities; there are three. The Minister speaks of multi-employer disputes in relation to new Sections 226, 226A and 234A where notices have to be given. But if you have a multi-employer situation, there may be some disagreement about who is a party to the dispute and who is not. That is regular run-of-the-mill stuff. Therefore, some of the companies—perhaps even some of the subsidiary companies—may turn out to be suppliers and customers, as happened in Wapping where all sorts of companies had inter-linked functions.
Some companies will be party to the dispute as employers. They would fall under the area of the most hoops. I am sure that the Minister will understand—I think that he agrees because he is nodding his head—that there are people in the middle who may or may not be associated companies. They may have an action in tort if, for example, their supplies are cut off and the union has done something tortious. The union will then try to say, "Oh well this is supported by immunity". But it is supported by immunity only if it has the support of the ballot. That is why the support of the ballot is absolutely crucial.
I really am trying to persuade the Minister to look at this again before Third Reading, or at least tell us what he really means on Third Reading. It is the third party in the middle who is in many ways crucial to my argument now, having put aside the union member. If you are trying to advise a union and you say, "You have come to me because you want to abide by the law", what you will have to say to a union in that situation now on the basis of the Bill can only be, "You had better satisfy the most cumbersome and difficult conditions that can possibly be thought of under the schedule and go through all of that because otherwise you are not safe".
I am grateful to the Minister for having written to me to confirm that there are different layers in this matter. The matter we are discussing constitutes a major change in the procedure of trade disputes. My radical friends would point out to me that this is the

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one area where unions have negotiated the matter successfully. Most unions have learnt how to satisfy the requirements of the procedures of the ballot largely because the procedures required are not unreasonable. I do not believe I have attacked any of them. However, now new procedures are being introduced. The Minister rightly says that the procedures will be introduced under a new set of requirements which will create enormous difficulties for unions in multi-employer disputes.
It is rather unsatisfactory that this matter should have to be dug out of the schedule. I say that advisedly. This is a matter of sufficient seriousness to justify its inclusion in the clauses of the Bill. Now that the matter has been dug out, the Minister has not addressed himself to the three types of situation I have mentioned. I have addressed the "Yes or No" issue as regards an injunction being issued against the union in a perfectly normal situation. If the union loses the support of the ballot it will have lost its trade dispute, its immunity, its protection and everything, whoever the plaintiff may be. Nothing could be more central to the law than this point. I hope that the Government will at least tell us a little more about their intentions on Third Reading.
8.30 p.m.
Viscount Ullswater: My Lords, with the leave of the House—
Baroness Seear: My Lords, I do not pretend that I fully understand everything the noble Lord, Lord Wedderburn, has said. However, I am absolutely persuaded that there is an important issue here and that it is not clear.
Viscount Ullswater: My Lords, I believe it is Report stage and I have spoken. It is up to the mover to speak. I wished to say before the noble Lord sat down—I am turning the tables here—that I might like to clarify a point but—
Lord Wedderburn of Charlton: My Lords, perhaps the noble Viscount might like to ask me a question before I sit down.
Baroness Seear: My Lords, I am persuaded that this is important, complicated and not well understood. No one can wish to have legislation in this field that is complicated and not well understood. I strongly support the noble Lord, Lord Wedderburn, when he begs the Minister to return at the next stage of the Bill with a clarification of this matter.
Viscount Ullswater: My Lords, I feel like Magnus Magnusson in that I have started so I shall go on, with the leave of the House. I hope I can clarify something the noble Lord, Lord Wedderburn, said because he rather took me to task for dealing only with two of the three pillars to which he referred. I hope I may put this matter in another context of the citizen's right that we shall address in another instance. It is quite correct that a union's failure to take the steps to provide ballot result details to an employer could provide the grounds for proceedings under the new citizen's right. The noble Lord shakes his head because I believe he
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feels that that was not a matter addressed in the three pillars he discussed. However, I believe my point is quite justifiable. It appears that I have not elucidated anything for the noble Lord and I shall leave him to decide what to do with his amendment.
Lord Wedderburn of Charlton: My Lords, I have no option but to withdraw the amendment in the hope that the noble Viscount will wake up tomorrow in a much more positive mood as regards his intentions on this amendment. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 20:
Page 31, line 29, leave out from ("describing") to first ("the") in line 30 and insert ("(so that he can ascertain their category or categories and approximate number)").
The noble Lord said: I shall have to do this unseen as it were. This amendment is less complex, less difficult and concerns territory that is better known than the previous amendment. I can therefore deal with it briefly. We on this side of the House have always been slightly shocked by the way in which the notice that the union is required to give, first, of who is to vote and, secondly, of who is to take part in industrial action, has been expressed. It has been expressed in a way which could be said to cause the union to finger its members—as I put it in Committee —and hold them out to the employer in such a manner that various forms of victimisation might well be practised. I believe that this feeling extends beyond noble Lords on these Benches. It has never been denied that, although there is some protection against some forms of victimisation in the workplace, there will never be a system of law that can rule that out completely.
In another place the Government said that the employer must know who is taking part in the proceedings and know their identities. The Government later withdrew the word "identities" and since then there has been a common semantic form relating to the two types of notice to be given. The Bill states that the union must describe the members who are about to take part in the proceedings so that the employer can readily ascertain who they are.
In Committee we tried to soften that provision. I tried to persuade the Government to accept an estimate of the numbers who are to take part in any proceedings. I would not accept this provision in any form, but we have to accept the Government's logic and see what we can do with it. The Government's logic has always been that the employer needs to know this information, although they have always been somewhat coy about why he needs to know.
I thought that it would be acceptable to the Government if the employer were given an estimate of the numbers of people who are to take part in any proceedings. However, that was not acceptable to the Government in Committee. I speak also to Amendment No. 22 which concerns this issue. I have tried to persuade the Government that a union should only have to describe the members so that the employer can ascertain their category or categories

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and also their approximate number. I believe that my amendments go a long way towards meeting the Government's position but they stop short of naming people.
The Government have always said that they are against names and addresses being given in the ordinary way, although they have not been wholly firm on that position. I believe it is now time for the Government to adopt a firm position on the giving of names and addresses. That matter is also addressed in Amendment No. 21. I hope the Government will take a softer line on this issue and will not oblige unions to point out the members who are to take action. Most systems of industrial relations law, certainly on the Continent, would regard that as a violation of civil liberties, and in most cases a violation of constitutional rights. I know of no system of democratic industrial relations law where the union is required to name or indeed to point to the members who are to take action.
I hope that the Government will reconsider this matter if they wish to achieve reasonable industrial relations. The Government do not appear to want trade unions, but they will have them in any case. If the Government wish to achieve reasonable industrial relations, they should not put the officials of unions in a position where they will be regarded by their members as playing the employers' part in a dispute and, worse than that, of being some form of quisling offering them as hostages to the employer if he happens to be a person who is prone to victimisation. I thank heaven that not all employers are prone to victimisation. This amendment concerns the matter of names. I am asking the Government whether they will consider softening their stance as regards the harsh drafting of the Bill at present. I beg to move.
Baroness Turner of Camden: My Lords, I rise to support the amendment moved by my noble friend. It will be recalled that in Committee we on this side of the House expressed our concern about the wording in the Bill because it could be held to mean that the union would have to provide names and addresses of members to employers in the event of a ballot on strike action. Indeed, in Committee the Minister did not deny that that could sometimes be the situation.
Similar wording occurs later in the Bill where a similar duty is laid upon the union in regard to members who, following a ballot in favour of action, are to be called out on strike. As my noble friend said, the matter has been the subject of discussion not only in your Lordships' House in Committee but also in the other place. We accepted that the Government intended in the Bill that the employer should know the size and part of the workforce likely to be involved in industrial action and about to be balloted. In the other place there was a clear indication that the Government did not expect the wording of this part of the Bill to force unions into the position of having to give the names of their members.
My noble friend's amendment makes that quite clear. Under the terms of his amendment enough information is to be supplied to the employer to enable him to know the category or categories of employee involved and their approximate number. Surely that is
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all he needs to know. I question why he needs to know that. If he needs to know anything he surely cannot need to know more than that. If he needs to know more than that, for what purpose? Unions are very concerned lest it opens the door to intimidation. As we know, that can be exercised in very subtle and not always obvious ways.
It seems to me that the wording of my noble friend's amendment would meet the concerns which we expressed previously, and which I gained the impression were shared widely among your Lordships, about possible breaches of confidentiality in regard to the names and addresses of members held by unions. I therefore hope that the Minister will feel disposed to accept this alternative wording.
Lord Rochester: My Lords, in Committee I said that the requirement in both Clauses 17 and 20 that a trade union should so describe employees to an employer that their identities could readily be ascertained amounted to an unreasonable breach of confidentiality. In reply, the noble Viscount, Lord Ullswater, reminded me that I had often spoken of my regard for the Institute of Personnel Management and that in its comments on the Bill the IPM had said:
"In so far as a ballot is used to ascertain an individual's opinion with regard to possible industrial action — the Institute supports the proposal that employers:- should be informed of the intention to hold a ballot, the workers involved, the questions put, and the voting procedure".—[Official Report, 18/3/93; Col. 1666].
I have not since checked that particular point with the institute, but those words do not seem to me to imply that information concerning the employees involved should extend to naming them individually.
However that may be, I continue to be troubled about the matter. As the noble Lord, Lord Wedderburn, has already said, in Committee various attempts were made to find a formula to meet the situation that was acceptable to the noble Lord and me and other noble Lords on this side of the House and also to the Government. The Minister will recall that in response he said that he would consider carefully what should be done. In the amendment yet another attempt has been made to find a satisfactory solution to the problem. I hope, therefore, that the noble Viscount will treat it positively and either accept it, or, if he cannot do that, at least agree to come forward at Third Reading with a government amendment that will relieve us of our anxieties on this matter.
8.45 p.m.
Baroness Seear: My Lords, I hope that the noble Viscount will accept the amendment, but, if he does not, will he tell us why he thinks the employer needs names and what he thinks the employer will do with the names? We need an answer to those two questions.
Viscount Ullswater: My Lords, as I said during the Committee stage debate—for example, in response to Amendment No. 87—we believe that employers should be entitled to notice telling them which of their workers are likely to be involved either in a ballot on industrial action or in official industrial action.

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I note that Amendments Nos. 20 and 22 refer to a description being provided of the "category or categories" of employee. In the Committee stage discussion of Amendment No. 87 I, too, referred to categories. On that occasion I said:
"If giving the categories is sufficient to enable the employer readily to ascertain the employees, then it will be enough to give categories. The vital point is whether the description is sufficient to enable the employer readily to ascertain the employees".—[Official Report, 25/3/93; col. 471.]
In the same debate, I also explained why we believe it is right, in a situation of prospective industrial action being organised against him, for an employer to have a right to information that can help him to protect his business. I have to accept that noble Lords opposite may not share our views about the propriety of the steps which an employer could take with that aim in mind.
To answer the noble Baroness, Lady Seear, as I said then, and repeat now, the Government believe that prospective industrial action creates special circumstances in the employment relationship. When threatened with either an industrial action ballot, or industrial action itself, an employer should be able to respond as he judges appropriate.
If he wishes to put his side of the case against approving the industrial action in a ballot, for example, an employer may need to know which of his workers will be involved in that ballot. Similarly, if he knows that certain workers will be called on to take official industrial action, the employer may want to put to them his arguments against doing so.
Even if he does not wish to do that, the employer will certainly want to take steps to minimise the disruption which the prospective industrial action could cause. He will, therefore, need to know which of his employees are likely to be involved. That is why employers need the right to the kind of notice details provided for in new Sections 226A and 234A.
I listened very closely to the noble Lord, Lord Rochester, as I did previously in Committee, and considered his words very carefully. However, if the description the union has given is sufficient to satisfy the notice details required it would be under no obligation to provide anything more detailed.
To summarise, therefore, there is no reason to suggest that employers would have a right other than in the most exceptional circumstances, to insist on the provision of names as part of a notice. I daresay we shall be dealing further with that matter in the next series of amendments.
I appreciate the strength of feeling which has prompted so many amendments relating to this particular issue. I can assure your Lordships that we have given full consideration to all the arguments put to us during Committee stage and also in another place. We remain convinced, however, that the provisions in the Bill deliver the right result. They fulfil the proposals which the Government set out in the 1991 Green Paper Industrial Relations in the 1990s. For the reasons I have explained, none of the proposed modifications considered by your Lordships would satisfy that test. Accordingly the Government
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cannot accept the amendment and I hope that I shall have persuaded the noble Lord, Lord Wedderburn, to withdraw it.
Lord McCarthy: My Lords, before the noble Viscount sits down could he say whether it would be accurate to say that the employer only has a right to the names if he cannot find them out for himself? So all this is just a smoke screen. To say that only in one case in 10 or 100 would the names be needed is not to give anything, because, if the employer cannot find out the names in any other way, he can demand the names.
Viscount Ullswater: My Lords, no. I believe that in order to gain the protection afforded by the statutory immunities—that is what we are talking about—the union must comply with certain requirements in law prior to organising industrial action. It is entirely proper that an employer who believes that a union has failed to comply with one or more of those requirements can bring proceedings in court to halt the organisation of industrial action. However, it is also ultimately for the courts to decide whether or not the union has complied with those statutory requirements.
If the union has given sufficient information for the employer to ascertain which workers will be involved in the ballot or the industrial action, the employer has complied with the law. Of course, the test of that compliance has to be eventually in the court. But that does not give the employer the right to demand on each and every occasion the names of those people.
Lord McCarthy: My Lords, is it not the case that the employer will be the man or woman who makes the decision? The union complies with the law if the employer can find out the names. If the employer subsequently comes to court and says, "On this information I could not find out the names", the union will discover that it has broken the law.
Lord Wedderburn of Charlton: My Lords, the Minister is right to believe that the provision gives rise to some feeling. However the amendment is prompted not merely by strength of feeling but by shock that even after dozens of employment Bills we now have a generation of lawmakers with such a poverty of understanding of fundamental individual human rights that they do not see what is wrong with the provisions. That is the fact of the matter. The Government seek a phrase to suit them but one which creates the least possible shock.
The Green Paper to which the Minister made reference referred to the union having to identify which workers or class of workers were to be called upon. That is a fuzzy formula. Surely my noble friend Lord McCarthy is right. The Minister must not take up this formula that "the courts will decide". Of course the courts will decide. But the courts will decide according to what we and another place pass into law. The courts will decide on a formula, unless it is changed from the provision as it now stands, which means that the union can say, "It's the van drivers, or those in this, that or another grade". That formula was often used in another place. It is a convenient description.

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However, the Minister states that if that formula does not work then the union will have to give more personal identification—names, national insurance numbers, or whatever. That is a flagrant breach of personal rights in almost every advanced system of law. Most of those systems recognise that there is a right to strike. The Government do not recognise any such right. To use the phrase of Ministers, which I suspect will be much quoted, "Strike ballots give rise to special circumstances and the employer must be allowed to respond".
I shall not trespass further on the amendment to be moved by my noble friend. I have gone further than I wished in seeking to provide a reasonable formula. Workers and others will have to make their own conclusion from the Government's provisions in the Bill. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Turner of Camden Baroness Turner of Camden moved Amendment No. 21:
Page 31, line 33, at end insert:
("( ) Nothing in this section shall be taken to impose a statutory duty upon the union to provide names and addresses (held in confidence) to the employer or agent of the employer.").
The noble Baroness said: My Lords, when the issue was discussed in Committee, I stressed, as has the noble Lord, Lord Wedderburn, the total unacceptability of a provision in a Bill by which a trade union would be compelled to "finger" —in other words, to name—its members to an employer. When the matter was debated in Committee in another place, there seemed to be an understanding of that viewpoint by the Government at that stage. However, despite what the Minister said today, there is nothing on the face of the Bill that I can see to prevent a union being forced into the position of having to provide names both in regard to those about to be balloted, as in this clause, and those who will receive a strike call. That is referred to in Amendment No. 23. In moving Amendment No. 21, I speak also to Amendment No. 23. I believe that that is entirely unsatisfactory.
I am anxious, too, for another reason. Every union has members on its register who do not wish their employers to know that they are union members. They may have been long-time members who have been promoted into a supervisory or lower level managerial appointment. They still retain their loyalty to the union. They may not attend meetings but they follow what happens within the union.
Those members may come off the check-off arrangements. Despite what the noble Baroness said earlier, they still remain members although they have come off the check-off arrangement. They pay their union subscriptions direct by annual cheque or banker's order. That is a common situation. Those members have as much right as other members to be involved in any ballot that may be held. Ironically they are the union members most likely to oppose strike action. But they are entitled to keep their union membership private.
Unless the Bill is amended it will be open to an employer to insist that names be provided. The
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Minister may claim, as he did earlier, that the situation would be most unusual: that it would arise in only the most exceptional circumstances. Nevertheless, it has to be admitted that unless there is an amendment to the Bill that possibility exists. That being the case, I hope that the Minister will agree that there are real worries and that he will be prepared to accept my amendments.
Amendment No. 23 covers the same ground, perhaps even more importantly. It deals with the situation at the point at which people are being called upon to participate in strike action following a ballot in which the majority voted in favour of action. I believe that there is scope for intimidation. As we indicated earlier, that can be in the most subtle forms. It is not necessarily the action by an employer against which an employee would have any immediate redress. It would be a total disincentive to those people —they wish to retain their membership but nevertheless do not wish their employers to know about it—to maintain their connection with their union. They may very much wish to retain their membership. Unless the amendment is accepted by the Minister, or a similar provision put into the Bill, people who have accepted promotion but who nevertheless wish to retain their union membership will feel dubious about continuing to do so and unhappy on that account. I beg to move.
Lord Rochester: My Lords, the noble Baroness has spoken to the amendment from a background of knowledge and experience which must be unrivalled in this House. I suggest that it is for the House to respect that expertise. She has explained, certainly to my satisfaction, how circumstances can and do arise in which a union member who may have been promoted to management or supervisory status decides to continue in membership of a union but does not wish that fact to be known to the employer. He therefore asks that his name and address be held in confidence.
In such circumstances, I hope that the noble Viscount, Lord Ullswater, will accept that the union should not be obliged to betray that confidence. Unless the clause is altered in a way such as the noble Baroness suggests, that is exactly what could happen.
Lord Wedderburn of Charlton: My Lords, should the Minister be minded to resist the highly reasonable amendment of my noble friend on the Front Bench, I ask him how the Bill would work without it in this respect. A union has used all the necessary procedures internally to consider a ballot on industrial action. Let us refer to a strike. The union gives notice to the employer and gives a specimen ballot paper. Let us take the example that the Government have taken throughout the debates in another place. The notice to the employer states that it will involve all the van drivers. The ballot is held and there is an enormous majority. The union is about to give notice to the employer that it is going to call on all the van drivers to come out on strike according to the ballot. It says, to use the words of the clause, that these are the persons which it,
"intends to induce or has induced".

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to come out. Tom, who is a long-term member of the union and a van driver says, "I'm not going on strike. Don't you dare give my name". What does the union do?
9 p.m.
Viscount Ullswater: My Lords, as I have already said we believe that employers should be entitled to notice telling them which of their workers are likely to be involved either in a ballot on industrial action or in official industrial action.
At Committee stage during discussions on Amendment No. 74, with which an amendment similar to this one was grouped, I also accepted that present provisions do not remove the possibility, however remote, that a union might have to supply names— and only the names—to an employer if that were the only means of satisfying the notice requirements.
So far as the industrial action balloting requirements are concerned, the Government recognise that the nature of the process means that a union's membership register may not have the significance which applies in respect of other kinds of union ballot. So, for example, the scrutineer for an industrial action ballot will not have the same rights of access to a union's membership register as is to be available to scrutineers of other ballots. That difference reflects reality. Industrial action balloting is different from other kinds of union balloting. And it is because of those differences that we believe the concerns underlying the amendments are misplaced.
In a situation where industrial action is in prospect, a union will be contemplating calling upon workers to take industrial action against their employer. If an employee takes industrial action, it is a fair assumption that the employer will be aware of that. It follows that, at that stage, the employer would know whether an individual was responding to the union's call for action, and that the individual was prepared to be identified as doing so.
In contrast to other ballots, where those entitled to vote will be either the whole of the union's membership, or that part which is electing a particular national official, it is the union's choice whether to call on any members to take industrial action, or to enter into the balloting process that can afford it the protection of the law for organising action by them. The union makes its choice about who is to be involved when determining who is to be given entitlement to vote in the industrial action ballot. That ballot has a special effect. It can afford the union special protection against proceedings which could otherwise be brought against it for calling on workers to take industrial action against their employer.
We believe that where a union decides to seek that protection and to organise such action, it must be prepared to provide the employer with sufficient details of those it intends to call on to take action, so that the employer can readily ascertain those who might be involved. Without this, the employer may not be able to respond, as he ought to be able to do, to protect the interests of his business.
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The noble Lord, Lord Wedderburn, asked me about a specific point; namely, a situation where all the van drivers had been called upon through a ballot to take industrial action and that that notice of industrial action was to be given to the employer. He said (in his own words) that it would be quite reasonable for the employer to understand who was to take part in the ballot and who was to take part in the action. He specified all the van drivers. I believe he quoted that Tom did not want his name to be given. Of course, there would not be any requirement to give names because he specified all the van drivers.
Let us however take another hypothesis, say, that of the weekend relief drivers. They may be on a rota system. Therefore it would be impossible and it may be difficult for the union to give any names of those sorts of people. Therefore it would be quite proper for it to give the class or the group so that the employer should readily ascertain who it is that he will call on during strike action.
I believe that—
Lord Wedderburn of Charlton: My Lords, I am grateful to the noble Viscount for giving way. He gives a rather important example, I suspect. Will he clarify his answer to that question? Here we have an employer who is told that some of the relief drivers will come out. How does the union do that? If they are all part-time relief drivers, must he be given enough information about the more radical relief drivers to hire only the part-time non-radical relief drivers? Is that how it will work—as a matter of strike breaking?
Viscount Ullswater: No, my Lords. I was pointing to an example in which I believe the circumstances of being able to provide names would not be helpful to the employer. So far as the notice to the employer is concerned, I am sure that a court would rule that if those drivers were in this instance to be called upon to take strike action, it would be quite proper for it to be given in that way. But the trouble about any hypothesis is that the circumstances have to he rather detailed. I was trying to be helpful to the House rather than perhaps to be very specific.
Baroness Seear: My Lords, does the noble Viscount recognise that in what he says, and in the kind of legislation he now wishes to get through, he is biasing the strike action in favour of the employer in every way that he possibly can, and that that is tantamount to denying an effective right to strike? If the employer is to be aided to do everything he can to bring in what in old-fashioned language used to be called "scabs" —that may not be a very appropriate name, but that is what they would have been called—he makes it as difficult as he can for the union to win in a dispute with the employers. We had better get it on the record that the Government are determined to bias an industrial dispute in favour of the employer.
Viscount Ullswater: My Lords, I listened very carefully to the words of the noble Baroness. But I feel that from the Government's side I should say this. We consider industrial action to be very serious indeed. Therefore it is very important for the economy of the country for the employer's company or firm to be able

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to take action to prevent consequences which he may not be able to predict if some of his workforce are induced to take action. We must remember that that inducement will then be covered by the protection of law, if it is done in a correct manner. We are talking about breaking contracts and in particular employment contracts. These are very serious matters. I do not feel that the noble Baroness takes on board the seriousness to a company of the effects of industrial action or of breaking an employment contract, as is shown by our intentions in the Bill.
Baroness Seear: My Lords, I accept that this is a Report stage, but the noble Viscount did not put the point directly to me. I am very well aware that strike action can be very disruptive. However, the Government fail to understand that the right to withdraw one's labour in certain circumstances is a fundamental right. The development of the economy is of very great importance, but there are other rights which are also of very great importance. We come back to what we have said during debates on this Bill. The Government are determined to destroy collective bargaining. They will not achieve a successful industrial system unless they have a good system of industrial relations. That is what they are destroying. This will not help the economy. It will do the greatest damage to it.
Lord McCarthy: My Lords, would it be fair to say that the Minister is saying that industrial action is so serious and so vital that, so far as the Government can ensure it, it must be done away with?
Viscount Ullswater: No, my Lords. Those words rather sting me. I do not believe that that is what the Government have been trying to do in this or any other Bill. I believe that the present peacefulness of industrial relations indicates the success of some of our legislation. However, we need to create a balance. I believe that the balance we have created is right. I have to admit that obviously that balance is not the balance that the noble Baroness and the noble Lords opposite consider to be right. I think that we have to leave the matter there. I hope that the noble Baroness will withdraw her amendment.
Baroness Turner of Camden: My Lords, I am disappointed at the Minister's response to what I thought were very reasonable amendments. In this Bill the unions have to give notification or information twice to the employer: at the point of carrying out the ballot and at the point of calling out people on strike. All members in that situation, perhaps in a particular company, may be entitled to be included in both those ballots, irrespective of their position on the staff of the company. There are many companies, particularly those with single union agreements, where the entire workforce, from people in very modest positions right up to middle levels of management, are members of the union. Under the union's rules all might be entitled to vote. But that does not mean that all those individuals should be in a position where their names could be given to the employer if the employer insisted that he did not have enough information to satisfy his
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rights under the legislation and he needed to know everybody's names. So far as I can see, from what the Minister said, that would mean that the names would have to be given. I think that that is a fundamental breach of privacy and of human rights. I agree with the noble Baroness, Lady Seear. The Bill weighs the odds against the union very heavily indeed.
The Minister spoke about striking a balance. I do not know whether that means that the balance has now been struck, so that we will not have any more legislation. One would hope that perhaps that might be the case. Or perhaps they will do away with some of the legislation that we already have. Certainly it does not seem to us on this side of the House to be very balanced legislation. It seems that every piece of legislation that we have had from the Government, including this one, introduces fresh hurdles that the union has to surmount in order to retain immunity.
In this instance, the hurdle that the unions have been given to overcome is that they are being put in the position of having to give the names of people who have asked that their names be treated in confidence. That is entirely unacceptable. It is so unacceptable that, although we have only one more chance on this Bill at Third Reading—
Lord Tordoff: My Lords, perhaps the noble Baroness will give way. I wonder whether it is possible that she anticipates the Government changing the electoral law so that people will have to give their names and show which way they have voted on matters. We are moving in that direction, are we not?
Baroness Turner of Camden: That is always a possibility, my Lords. One never knows what the Government will do next.
Lord Wedderburn of Charlton: My Lords, will my noble friend also bear in mind that precedents have established that the union does not have the authority to advance personal notices in relation to individual employees, even if they are members, without express authority. Presumably, by implication, this wretched clause tries to overcome that barrier as well.
Baroness Turner of Camden: My Lords, my noble friend makes an important point. In other words, the union is placed in difficulties with its members—difficulties in which it does not want to be placed. For example, the members would quite rightly maintain that their names and addresses were held in confidence by the union; that they had said to the union that they did not want to be part of check-off but wanted to pay subscriptions direct and their names and addresses were to be retained in confidence in the union's records.
The Government's attitude to the extremely modest suggestions contained in Amendments Nos. 20 and 21, is disturbing in that they have not seen what we are trying to do. We are trying to protect individual rights. The Government talk of individual rights of union members and on this side of the House we are trying to protect the individual's right to privacy. It is highly unacceptable. Although I shall not press the matter to a vote this evening, I feel so strongly about it that I shall have to consider whether there is anything

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further that I can do when the Bill comes before your Lordships at Third Reading. In the meantime, I regret to say that I have no alternative but to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 20 [Notice of industrial action for employers]:
[Amendments Nos. 22 and 23 not moved.]
9.15 p.m.
Clause 21 [Industrial action affecting supply of goods or services to an individual]:
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 24:
Page 36, line 29, after ("individual") insert ("who falls within the scope of subsection (IA)").
The noble Lord said: My Lords, Amendment No. 24 opens the unhappy world of Clause 21. It has already been criticised as a clause because the liabilities it creates are too wide. As we saw in Committee they apply to a situation where the applicant has no entitlement to any goods or services; where he has suffered no damage; where the deprivation he suffered is so difficult to describe that Ministers in Committee found it impossible to give us a clear example of the limits of the liability.
It is a wide liability, but we have not looked at the question of the plaintiff. Perhaps that is the fault of some of us who have described the applicant or plaintiff as "Disgusted of Tunbridge Wells", because that conjures up a picture. But perhaps we have not done justice to it because that is the way the Government, in their rhetoric, invited us to look at the clause. The amendment seeks to redress the situation by saying that the individual to which the clause applies should be understood in the context that government spokesmen have so far described.
That is to say, in another place the Government's description of the clause with the new wide liability and the order of the court being anything in its discretion it can apply, was for an individual, especially for individuals who were to be the recipients of the Citizen's Charter where unlawful action had not been restrained by proceedings brought by an employer or by a union member.
That description illustrates the way in which the Government presented it to us as an alternative remedy. At col. 270 on 15th December last the Minister of State in another place said,
"We are giving the citizen who suffers a loss as a result of unlawful action the right to go to court to seek an order to bring it to an end. If an employer had already taken that step, that right would clearly be redundant. There may be occasions, however, when an employer does not act and citizens suffer inconvenience. In that event, the provisions in [what was then] Clause 19 would come into effect, and quite right, too. Why should citizens be inconvenienced because a gutless and spineless employer fails to see a remedy for unlawful action which results in loss?"
I do not know what the CBI would think of that description of employers. What it makes clear is that it is an alternative remedy where the employer does not act and the customer does not act.
The Minister also said at col. 271,
"We must think. however, about what is likely to happen in the circumstances most likely to arise. It would be
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comparatively unusual for the company concerned not to take action … it would be unusual for the employer not to take action".
The noble Baroness, Lady Denton, in Committee in your Lordships' House at col. 488, also spoke of the clause as being one which would,
"afford protection to all individuals affected by any unlawfully organised industrial action".
She went on to say,
"We believe that it is right in principle that individual citizens should be able to bring proceedings to halt the organisation of unlawful industrial action where that results in their being deprived of any goods or services … Nor do the new provisions replace existing rights provided to employers and trade union members, who are already able to bring proceedings to halt unlawfully organised industrial action".
From that and a fuller examination of the debates one gets a very clear picture that the Government are saying that there are remedies for the union member —we looked at those during the consideration of a previous amendment—to go to court where there is not a proper ballot and there are remedies for the employer. Under the Bill there will be remedies for the employer in a large number of situations unless the union gets through all the necessary hoops correctly. Furthermore, the employer is only one example of companies which have rights of action in tort. They may be customers or suppliers. There are plenty of examples in the Law Reports of companies which are not the employer in dispute, but perhaps associated or other companies, enforcing rights of action for breach of or interference with contract where there is no protection in regard to the immunities in a trade dispute.
The clause as proposed is one that deals with individuals, not those cases. However, when one looks at the clause, it is not drafted in the clearest possible manner to make that interpretation necessarily the only possible construction. Therefore, this amendment says that we must be clear about who this individual is. Certainly the clause as it stands does not tell us exactly the width of "individual". The normal understanding of "individual" would exclude corporate persons. I take it from the speeches that the Government have already made that they would have no objection to paragraph (a) of my modest interpretative amendment which provides that "individual" does not include "a corporate person". The two terms are normally thought of as being disjunctive.
Secondly, under paragraph (b), the individual does not include,
"an employer party to a trade dispute",
whether or not the employer is a corporate person,
"in contemplation or furtherance of which the act has been done or is likely to be done".
That is consequential upon the presentation of the alternative remedy. I did not add some of the other possibilities—for example, a union member—but it may be that the Government will criticise me for not having my drafting perfect. One could add,
"or a union member who has a right of action under Section 62".
In other words, the amendment attempts merely to make clear —heaven knows, those who will have to deal with industrial relations will need to have it made clear—the width of "individual".
I can well understand that some people—it may be that the noble Lord, Lord Mottistone, is among them—will take the view that this is going in exactly the wrong direction; in other words, that it is slimming down the clause to include only "Disgusted of Tunbridge Wells" or some mad-cap plaintiff whom he especially wants to exclude. I can see that, but as the clause stands that is the direction. I am taking the clause as it stands and taking Ministers' speeches as they stand and saying that paragraphs (a) and (b) are necessary as interpretative clarification in the light of those speeches.
Paragraph (c) raises a serious point. I have excluded,
"a person not resident within the European Community".
The traditional way of dealing with this would have been,
"a person not resident in the United Kingdom".
But I was not sure that that was acceptable in terms of Community law these days. It may be that I am wrong but I use this formulation rather than "United Kingdom".
The reason that I raise this point is that the clause is so wide—the plaintiff does not have to show entitlement, damage or practically anything else—that there might well be an applicant who flies across from New York, China or from some other part of the globe—with information technology such an applicant would not have to move his or her person—and makes an application to the court. That may sound fanciful to noble Lords opposite but the law of labour relations is already very international. Therefore, I am asking the Government in paragraph (c) whether they really mean that the individual can be someone anywhere in the world who complains, on a faint basis of deprivation, of some act which turns out to be unlawful in terms of the clause. If one excluded those three areas one would be clearer about what the noble Baroness, Lady Denton, meant on 25th March when she said that the clause should,
"afford protection to all individuals affected by any unlawfully organised industrial action".—[Official Report, 25/3/93; col. 488.]
As an alternative remedy one could understand that. But it is incumbent on the Government, in the face of the amendment, to tell us just how wide they intend to go. If in fact the Government are opposed to paragraph (b) and they intend an employer who is a party to a trade dispute to be able to use Clause 21, then much that we have been discussing is neither here nor there. He will not bother about notices, naming and so on. He will simply go straight to the court under Clause 21 and get an order there. So paragraph (b) is, for the immediate purpose of industrial relations, the most important section of all in the amendment. I hope that the Government will take this seriously and accept that it is in their own interest to get it right. We have passed the stage where we can get rid of Clause 21, which most of us on these Benches would very much like to do. I hope that the Government will have some meaningful discussion as to which individuals and which persons can bring an action under this clause. I beg to move the amendment.
Lord McCarthy: My Lords, I want to support my noble friend on this amendment. It is a classic probing amendment. When I first came to this House I asked the late Lord Ponsonby of Shulbrede if we were allowed to talk during debates and he said, "only if someone is moving a probing amendment". I asked him what that was and he said "one on which we have no intention of dividing".
The fact is that this probing amendment is a highly critical probe. We have talked up to now too much about the coverage of Clause 21, about what it means in terms of no entitlement, no damage, no measurable loss of any kind and so on. We have not talked about the people who are allowed to invoke it. That is what my noble friend is talking about and that is what he is inviting the Government to talk about. What is the extent of the liabilities? Does the ability to invoke this very wide clause, which takes you straight into an injunctive remedy where you have only the lower levels of argument to establish your case at that stage, apply not just to third parties but to everybody else as well, and in particular to employers?
If it does, and if the noble Viscount or the noble Baroness is going to tell us that it does, then I understand why they might tell us they think they have got the right balance. I understand why they might say that they do not need to come back next year to adjust the balance, because this Clause 21 will indeed be a very wide extension of liability, and therefore I hope that this probe goes home.
Baroness Denton of Wakefield: My Lords, I assure the noble Lord, Lord Wedderburn, that I have listened seriously to the arguments he has put forward, supported by the noble Lord, Lord McCarthy. However, I have to say to him, for the reasons which I will now outline, that I cannot accept them. The statements that I made at Committee stage are still totally appropriate.
When taken together, the amendments would have the effect of excluding certain categories of person from the scope of the important new right provided by Clause 21. This would mean in practice that certain persons would be precluded from applying to the court for an order to halt the unlawful organisation of industrial action which deprives them of goods or services. We believe that to preclude such persons in that way would be quite unnecessary.
The key amendment is Amendment No. 25, since this specifies the categories of person who would be excluded from applying to the court for an order under the provisions of Section 235A(1). It may be helpful if I explain why, in each of the cases specified in that amendment, it would be undesirable or unnecessary to deny those groups of persons the chance to put their case to the courts.
Amending the provisions specifically to exclude a "corporate person" is unnecessary. The term "individual", as specified in subsection (1) of Section 235A, is clear. It means exactly what it says—that the person bringing the proceedings must be an individual and must be acting in their capacity as an individual. The courts would not hold a "body corporate" to be an "individual" for the purposes of an application

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under the new right. As the noble Lord indicated, and I have learned, the word "person" includes a corporate body, but the word "individual" does not.
It is of course already the case that employers party to a trade dispute would be able to bring proceedings to halt the unlawful organisation of industrial action under other provisions in law. However, if they do so, they will be bringing those proceedings as an employer and not as an individual. If, however, an employer who is party to a particular dispute is deprived of goods or services as an individual, it is right that he should be able to bring proceedings to halt the unlawful act which so deprived him. In each case, there would be an entirely different basis for an application to the court and it is neither necessary nor desirable to make the kind of distinction which the noble Lord, Lord Wedderburn, attempts in his amendments.
I appreciate the noble Lord's attempts to apply the principles of commonality of rights among EC residents to these provisions by recognising that nationals of our EC partners should be able to bring proceedings under the new right and should not therefore be excluded from the ambit of the new right. I am, however, still unclear why he feels that those outside the EC should not be able to do so, even when unlawfully organised industrial action in the UK deprives them of goods or services.
Today, the world operates on a global stage, and it is possible that those individuals who would suffer from unlawful—and I stress "unlawful"—industrial action were not at the time resident in the Community. Indeed, it could well be that people suffering from the withdrawal of airline services could be stranded outside the Community. We firmly believe that there is no need for any special restriction on the ambit of the right. It is highly unlikely that overseas residents will be deprived of goods or services as a result of unlawful industrial action or, if they are, that they would use the right. But there is no logical reason for preventing them from using it.
The provisions as drafted place the onus firmly on the individual to satisfy the court that he or she has been deprived of goods or services as a result of unlawfully organised industrial action. If an individual is deprived of goods or services as set out in the provisions he should be able to use the new right regardless of his status, interest in the dispute, or geographical location. The courts can be expected to act fairly and properly when considering a case before them. The noble Lord, Lord McCarthy, said that this was in the nature of a probing amendment. I hope that the noble Lord, Lord Wedderburn, will feel able to withdraw it.
Lord Wedderburn of Charlton: My Lords, the noble Baroness's answer discloses some important new matter. Of the three categories that my amendment puts forward the new matter is not so much concerning the third category; namely, persons not resident within the European Community. But since she expressed puzzlement as to why I should limit it, I shall tell her that workers can rely on a trade dispute, following amendment of Section 29 of the Trade Union and Labour Relations Act 1974 by this
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Government in 1982, only when the trade dispute matter abroad has an effect within the United Kingdom. There is therefore a perfectly good case for saying that they should not be liable to those outside the United Kingdom, by reason of their being unable to rely upon trade dispute matters that arise only abroad.
I explained to the Minister that I said "European Community" rather than "United Kingdom" because I did not want even the possibility of a clash with European Community law. That is the reason for paragraph (c). I do not believe that she has answered the point in relation to it.
In relation to paragraph (a) and "a corporate person" and paragraph (b) and
"an employer party to a trade dispute",
I accept—and I was very glad to hear that the Minister accepts—that "an individual" does not include in this clause "a corporate person". Therefore, employers who are companies cannot come along with a case for any kind of personal deprivation.
However, the Minister then told us something enormously important—namely, that a non-incorporated employer can come to court as an employer under the provisions relating, for example, to the need for a union to ballot, to give notice and so on, claiming an action in tort. An action alleging that the act done by the defendant is tortious must be one on which he can sue. Let us take an example. If I know that the noble Lord, Lord Rochester—I know that he would not do this—has interfered with and broken a contract with someone else, how and when I could sue on that matter would be questionable since I was not involved in those contracts. Let us suppose that there has been picketing, as in the case involving the South Wales pits in 1985. Mr. Justice Scott, as he then was, held that the plaintiffs who could sue in relation to such picketing were those who were working or were employers or managers in those particular pits—and not everybody else in the country. If the plaintiff comes as an "employer", he is bound by those normal rules of the common law of tort.
However, this particular plaintiff can do something else. As the noble Baroness explained, there is a metamorphosis of this employer into an individual with individual loss and individual deprivation. I had not understood it before, but I do now. It will be very difficult to divide the plaintiff's "employer loss" from his "individual loss" because he is not incorporated but, as an individual, he will now be able to take advantage of Clause 21. The importance of that is that under Clause 21 he does not have to prove that the action done or threatened by the union is tortious as against him. He has to show only that it is liable to give rise to an actionability in tort by any person.
So a small employer who does not incorporate is given a massive addition to his causes of action. We have only just extracted this information after between six and nine months of discussions in Parliament. If that is what the Government intend, surely they must include some clarifying provisions. Indeed, I advise the Minister that she has an obligation to go back to her right honourable and honourable friends and say that this problem has

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arisen. I stress that it has never been mentioned in any speech previously and that it has never before appeared in a brief. The point is that an individual employer is able to sue either as an employer, as the noble Baroness put it, under normal actions in tort and ballots or as an individual in respect of his individual loss under Clause 21—but not if he forms a company. It is a wonderful example of some of the disadvantages of the corporate veil in registering a business as a company.
Although one could easily argue with the government brief in places, that is not the point of this intervention. In withdrawing the amendment, I ask the Government to add a subsection to Clause 21 to stop unnecessary litigation about exactly who can sue, and, with particular relevance to the individual employer, to clarify just when he can and cannot make use of the clause. Surely the trade unions and workers involved deserve at least that, even if some of the lawyers might be sad about such clarification other than in court. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Wedderburn of Charlton Lord Wedderburn of Charlton had given notice of his intention to move Amendment No. 25:
Page 36, line 42, at end insert:
("(1A) For the purposes of this section an "individual" means any person other than—

(a) a corporate person;

(b) an employer party to a trade dispute in contemplation or furtherance of which the act has been done or is likely to be done; and

(c) a person not resident within the European Community.").

The noble Lord said: My Lords, I apologise for not having said when discussing the last amendment that I was taking Amendments Nos. 24 and 25 together. I hope that Amendment No. 25 can be printed, because it is an important amendment, as we shall see.
[Amendment No. 25 not moved.]
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 26:
Page 36, line 46, after ("persons") insert ("by reason of the failure by the union to hold a ballot as required by section 226 of this Act;").
The noble Lord said: My Lords, Amendment No. 26 goes to a much narrower point. It goes to the type of liability, and to one of the two ways in which an applicant under Clause 21 may be able to substantiate his case. It is usually illustrated on both limbs of the liability by the union's failure to hold a proper ballot. We have seen how difficult that may be under some of the preceding amendments. The two limbs—if I may put them in reverse order to the way that the clause puts them—relate, first, to the case where a member of the union might have obtained an order against the union under Section 62 of the consolidation Act, which means by reason of a failure to hold a proper ballot; and, secondly, to the case where the act which is done or threatened is one which is actionable in tort against any person.
The amendment would tie the second of those limbs in with the first by confining it to cases where there was not a proper ballot, as required by Section 226. Section 226 leads on to the division—I am not trying
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to backtrack into the previous argument—so I apprehend that the Government's balloting structure would be secure. But torts outside that would not give rise to liability.
Perhaps I may return to an example that I gave on the last amendment: if there is picketing in a dispute which involves a large number of sites, and on one of the sites in the North-East picketing goes beyond that acceptable under the law, then a range of persons may have a cause of action in the High Court. It is not of course a case where one necessarily discusses trade disputes. I appreciate that under the consolidation Act, as before, if one is picketing at one's own place of work in contemplation or furtherance of a trade dispute, there may be some defence; but, putting that aside, there may well be liability in nuisance or in a number of other types of action in tort. As to nuisance, if one runs up and down the highway to the annoyance and the interference of the person occupying the house, one may be liable for the tort of nuisance.
However, if the pickets have delayed a lorry, and the lorry was late in getting its cargo to a train, and the train was a little late in getting the packages to London, and Mr. and Mrs. Dot in Tunbridge Wells then found that the package that might have come to them was delayed, only it was not coming to them anyway because it was going to their daughter, and so they had no entitlement, that does not matter under Clause 21. All they have to show is that at that one place in the North-East the pickets went off into conduct that was actionable in tort. It was not actionable by them of course. They could not possibly sue for nuisance: they are not frontagers or occupiers of the land nearby, or, indeed, using that highway. But the act itself is in its nature actionable and so all they have to show is that six pickets—or one picket come to that—make for liability in nuisance in the North-East. Then some kind of minimal deprivation, a definition of which we have never managed to obtain from the Government, takes place, and so they can go to the court as applicants. That is sheer Alice in Wonderland. I hope that the Government will not try to show that it is, in substance, incorrect. The details may be wrong: perhaps it should be the South-West rather than the North-East.
It is clear that if there is an act that is tortious against a person—I was going to say anywhere in the United Kingdom, but after the Minister's last reply I am not sure where it might be actionable—one is home. The amendment says that one should not be home if the liability is other than the failure to hold a proper ballot under Section 226. It is that range of liability which has usually been discussed by the Government. To give them their due, they have lined up the two types of liability in discussions; that is to say, the liability where a member of the union can sue because there has not been a ballot, and the liability where an employer can sue because there is a tort which is not protected by a proper strike ballot. All the amendment does is to bring those two into line.
I hope that the Government will take the amendment seriously, even at this late stage. It is a modest amendment. It only asks the Government to

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give up the more outlandish illustrations of what the clause would do, and still leaves them with the substance of the average industrial dispute. I beg to move.
9.45 p.m.
Viscount Ullswater: My Lords, the noble Lord, Lord Wedderburn, has sought to limit the application of the new citizen's right by tabling the amendment. I am sure that he will not be at all surprised to hear me say that we find his amendment totally unacceptable. As currently drafted, the provisions make it clear that an act of inducement will be considered unlawful for the purposes of the exercise of the new right if it is actionable in tort on any grounds. The amendment will provide that such an inducement will be actionable only by reasonable failure to hold a proper ballot, thus limiting the exercise of the new right only to certain kinds of unlawfully organised industrial action. That is a wholly inappropriate distinction to draw.
Indeed, perhaps the noble Lord is trying to suggest in his amendment that certain types of unlawful acts are more serious or more acceptable than others. Is the noble Lord seeking to argue in the example that he gave that unlawful picketing is not serious enough to be unlawful at all?
In introducing the clause we have sought to provide individuals with a new right which affords them additional protection against unlawfully organised industrial action. We believe that it would be quite wrong to amend the provisions in a way which would apply that principle selectively. An individual deprived of goods or services as a result of an unlawful act should have the right of redress regardless of the basis upon which the action is unlawful.
An amendment of the kind suggested by the noble Lord, Lord Wedderburn, would make the provisions extremely difficult to defend to an individual who has been deprived of goods or services as a result of an unlawful act. Could we seriously be expected to tell people who have been deprived of goods or services as a result of an unlawful strike that they had no right to prevent that strike because the only fault was that the union had failed to give seven days' notice to the employer? The point is that, whether the strike call is unlawful or not, the individual will expect to be able to exercise the new right in all cases where industrial action is unlawful and deprives him of goods or services—
Lord Wedderburn of Charlton: My Lords, I am sorry to interrupt, but the issue is important. I am sure that in fairness the Minister will give my proposed amendment the due that it deserves. My amendment suggested that the rights should be limited by a failure to observe Section 226. As amended by the Government in the Bill, Section 226 includes the requirement that an employer be given all the notices under Section 226A. Therefore, the example which the Minister gave of the notice to the employer not being important is a bad example and he was badly advised. The notices will still have to be given because they fall within Section 226, which leads to Section 226A.
Viscount Ullswater: My Lords, I sought to tell the noble Lord that that provision would be effective. I tried to indicate that the noble Lord's amendment would restrict the provision to only one effect, while we are saying that that should not be the case. We say that it should be open to the individual to take the action as I have described.
I have come to the end of the point that I was trying to make. I hope that I have been able to persuade the noble Lord that we seek to give the right to the individual in this way and that we should not seek to use that selectively as he has suggested in the amendment.
Lord Dean of Beswick: My Lords, as a longstanding member of a trade union—
Noble Lords: Order!
Lord Dean of Beswick: My Lords, I wish to ask the Minister a question, if that is in order. I listened to the comments made by my noble friend Lord Wedderburn in moving the amendment and I listened to the Minister's reply. As a former factory trade unionist, not an officer in a trade union, I find the complexities of the Bill and the way in which the provisions affect people on the factory floor somewhat amazing. One could draw a multitude of conclusions. For example, my noble friend Lord Wedderburn referred specifically to the fact that a number of factories may be involved. Some large employers have factories all over the place. If a misdemeanour were committed by one group of people at one factory in a general dispute surrounding those factories—
Lord Mottistone: My Lords, after the Minister has spoken I do not believe that it is appropriate for the noble Lord to start a speech. He said that he was going to ask a question. It is appropriate to ask a question only before the Minister sits down. To go on with what is turning into a long speech is outwith the rules of the House. After the Minister has spoken, only the mover of the amendment should speak.
Lord Dean of Beswick: My Lords, where one factory in a group of factories commits a misdemeanour, are the other factories in that group affected? That question needs to be answered.
Viscount Ullswater: My Lords, with the leave of the House, we are talking about unlawfully organised industrial action. It does not matter where that action takes place, if it is unlawfully organised the citizen has a right under the Bill.
Lord Dean of Beswick: My Lords, that does not answer my question. I spent the latter years of my engineering life working at GEC. There were factories with thousands of employees in different areas. Let us suppose that the workforce in the GEC empire decided to strike. If 14 sites behaved according to the legislation and one did not, would the 14 sites be held responsible for the one which did not comply? If that is so, it flies in the face of traditional trade union law and what the Government are supposed to be trying to achieve.
Viscount Ullswater: My Lords, I should have to be clear about all the circumstances surrounding the scenario which the noble Lord paints. For example, if one ballot was taken at all the sites and the unions failed to tell one of the employers of the intended action, that would be considered to be unlawfully organised industrial action and the citizen's right would prevail.
Lord Wedderburn of Charlton: My Lords, it may be the function of Report stage finally to tease out the extraordinary nature of things. The Minister said that he would not be surprised if I found this to be unacceptable. My noble friends and I have been saying that we are always told at the start of the answer, rather than at the end of the argument, that things are unacceptable.
The Minister is saying that an action which is unlawful, which is organised unlawfully but which is actionable by anybody can form the basis of a successful application to the court by anybody else. I do not believe that the Minister realises what an enormous extension of legal liability that is. It is not matched in any previous legislation. It will be the basis of a number of PhD theses on the rule of law because it clearly flies in the face of an extremely solid and sensible—I almost said liberal—rule; that is, that each rule of law has a clear definition of liability and a clear definition of those who may use it.
Once one reaches the point where, if someone breaks an obligation in law, everyone else in the country has the right to go to court in an advantageous way, one steps across the normal confines of the rule of law and invents a situation. That is well known in the American labour law literature of the 1930s where the labour injunction was used in exactly that way. It was shown that it had become a remedy of public and penal law rather than based upon normal civil relations of parties in a liberal state. It is a very serious thing that the Government are doing here. I hope that it does not keep the Minister awake—or rather, perhaps, I do hope that it keeps him awake. He should think about the matter before Third Reading. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McCarthy Lord McCarthy moved Amendment No. 27
Page 37, leave out lines 1 to 4.
The noble Lord said: My Lords, I think that at this time of night we may as well presume that we are in fact probing, or teasing out, as my noble friend Lord Wedderburn would say. If one takes account of what the Minister said in response to the very modest attempts to limit the scope of Clause 21, one wonders whether one has any hope of persuading him in the case of a rather more significant attempt to limit the scope of the clause which we have before us in the present amendment. Therefore, perhaps one should begin by asking the Minister to tease out the reasons for the words on the face of the Bill that we are seeking to remove.
The amendment aims to leave out lines 1 to 4 on page 37 of the Bill. It is that part of the clause which says:
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"In determining whether an individual may make an application under this section it is immaterial whether or not the individual is entitled to be supplied with the goods or services in question".
I do not think that the Government have really explained to us—and that is what I am trying to tease out of them—why we have to have those four lines in the Bill. Why are they necessary? It is very unusual in general terms of civil liability to grant redress, compensation or, in this case, an injunction or restrain movement where there is no contract, basis or right on the part of the individual and to go further and say that it is in fact,
"immaterial whether or not the individual is entitled to he supplied with the goods or services in question".
My first question to the Minister is: why precisely do the Government think that they need that unusual provision in the clause? I have always felt that they had British Rail in mind. For example, there I stand on Didcot station. There is no sign of the 9.35, the 10.35 or the 11.35. Because I do not have a contract, I know very well that, when I reach the other end, it does not matter what the ticket says in the small print: you cannot get British Rail for anything. Therefore, the Government say, "Never mind, get the union". That is the idea. It is a kind of vicious man's charter: If you cannot get British Rail, you can get the union.
But there must be something more to it. Why is it necessary to say that it is not material,
"whether or not the individual is entitled to be supplied with the goods or services in question"?
Let us be clear about the issue. Even if we removed the words, there would still be a great deal which is peculiar about Clause 21. We still would not have to have proof of measurable, identifiable or admitted damage. We would still have a situation in which there was a very wide form of liability and where there could be an inducement which was ineffective. We would still have a whole range of peculiarities in the Bill. We are merely asking why the Government require those four lines. I beg to move.
10 p.m.
Lord Rochester: My Lords, I want to support this amendment but before doing so I feel that I should also support what the noble Lord, Lord Mottistone, said earlier and express the hope from these Benches that, in order that we can make progress on the Bill within the normal procedures of the House, noble Lords on all sides of the House will respect the conventions and speak only once on Report. In particular noble Lords should not speak after the Minister has replied to the debate.
The amendment challenges the basic aim of Clause 21 to extend to actual or potential customers the right to take proceedings to restrain unlawful action even though they are not entitled to be supplied with the goods or services in question. It is really difficult for me to add anything of substance to what the noble Lord, Lord McCarthy, has already said in relation to this amendment. I shall therefore simply remind the Government that major employer organisations, including the CBI, are opposed to the clause in its present form, basically because of the damage that maverick individuals can do in thwarting the efforts of

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both management and unions to deal with the sensitive situations that arise in seeking to settle industrial disputes.
Moreover, as I said in Committee, to judge from the comments of the Law Society, lawyers themselves are doubtful about the desirability of introducing the provision, given that remedies already exist for parties to a contract and others suffering actual loss as a result of unlawful industrial action. All I can do is to urge the Government to heed this advice before the clause is implemented by giving further consideration to amendments such as this one, which is aimed at limiting the harm that vexatious litigants can otherwise do to industrial relations and therefore to industrial performance.
Lord Dean of Beswick: My Lords, I find it strange that the noble Lord, Lord Rochester, should express surprise that the Government are completely ignoring the views of the CBI and other people on this particular subject. The Government's main purpose in introducing this Bill has been to ignore the wishes of other people on both sides of the employment and economic fence. The Government ignore anyone who does not hold their political point of view.
Perhaps the noble Lord, Lord Rochester, had the privilege, or perhaps I should say the disprivilege, of watching the interview that took place on television yesterday between the Secretary of State for Education and Mr. Walden. The Secretary of State tried to rubbish a legal verdict that had been reached by three Lords of Appeal in the Court of Appeal. If the noble Lord, Lord Rochester, had watched that interview, he would not be surprised at the Government's behaviour. The Government want to become their own court of law with regard to some of their actions. That position was well illustrated yesterday.
A few years ago the Clay Cross local authority decided to argue with the decision of the courts of the land. The members of that local authority were threatened with imprisonment and some of them were disqualified from standing for public office. Now we have a situation where a Secretary of State can quite outrageously rubbish on television a legal verdict that has been reached by one of the highest courts in the land because the verdict did not suit the Government. Therefore I do not think the noble Lord, Lord Rochester, should be surprised that the Government ignore the CBI or anyone else who is affected by this legislation.
Baroness Denton of Wakefield: My Lords, I start by thanking the noble Lord, Lord Rochester, for drawing our attention to the customs of the House at Report stage. I am sure that everyone will take note of his comments.
I turn my attention to the amendment in front of us. The noble Lord, Lord McCarthy, said he was trying to tease out some matters. My answer will be little different from answers that have already been given during the consideration of the Bill both here and in another place.
In Committee in this House there was considerable discussion on this matter. From the time when this
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new right was first proposed as part of the Government's Citizen's Charter, we have made it clear that its main purpose is to protect those who are affected by unlawfully organised industrial action who are currently unable to protect their interests.
Deprivation can result from unlawfully organised action whether or not there is any legal entitlement to the goods or services in question. That deprivation is just as real even if there is no entitlement, whether under a contract or anything else. That is why it would undermine the right if Section 235A(3) was removed as proposed by the amendment.
I stress again that there is no risk of frivolous or vexations proceedings succeeding under the new right. As the noble Lord, Lord Rochester, will see from the terms of Section 235A(4), a court is to be required to satisfy itself that any claim made under the new right is "well-founded". We believe that that will have the effect of disposing of frivolous applications.
So an individual who claims that an act will or is likely to deprive him or her of goods or services will have to be able to satisfy the court about the matter. We have confidence that the courts will apply that test properly and effectively. Why should anyone want to bring proceedings unless they are, indeed, deprived or at risk of deprivation? After all, the remedy they could obtain is no more than an order halting the unlawful act. To quote the noble Lord, Lord McCarthy, the aim is not to "get" anybody. The individual cannot obtain any financial gain through an award of damages as such a remedy is not available under the right. I suspect that the noble Lord will not be surprised by my answer. I hope that he will draw some reassurance from what I have said.
Lord McCarthy: My Lords, at least we have reached a point of agreement. The noble Baroness said that she would not tell me much, and she did not tell me anything. It is perfectly true that we have been round this course before. I hoped for something better. We were told previously that the right was part of the Citizen's Charter. We must be thankful that we were not told that it was part of the Green Paper. We have heard two arguments: it is part of the Green Paper or it is part of the Citizen's Charter. This time it is part of the Citizen's Charter, and therefore it is justified. The fact that something is in the Citizen's Charter is not a justification, it is a statement that it has been put in the Citizen's Charter. Nothing follows from that.
To say that there can be deprivation without legal entitlement means nothing. I am deprived of going to the Ritz for a free dinner. Unfortunately, I have no entitlement to go to the Ritz for a free dinner. Therefore, normally, outside Clause 21, I have no right to go to the Ritz for a free dinner, but Clause 21 is different because it is part of the Citizen's Charter.
The noble Baroness says that that is all right because it is well-founded. What well-founded means on the face of the Bill is that it is well-founded in terms of the Bill itself. There is no definition of what well-founded means. Well-founded means in effect that even though one does not have a legal entitlement one can allege that one suffers some immaterial,

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immeasurable and unidentifiable deprivation. We do not know what deprivation means in this context. No explanation is offered to us.
Finally, the noble Baroness said that people will not make frivolous complaints because they cannot obtain any compensation. Outside the context of Clause 21 one would think that somebody who took up a case and could obtain no compensation whatever would do so for malicious purposes. That, I suspect, will very often be the case. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mottistone Lord Mottistone moved Amendment No. 28:
Page 37, line 4, at end insert:
("( ) In determining whether to entertain an application under this section the court shall have regard to whether any other application has been made under this section.").
The noble Lord said: My Lords, I thank the noble Lord, Lord Rochester, and my noble friend Lady Denton for supporting me in my earlier remarks. As a Back-Bencher of some experience, I was sorry to have to bring to the attention of the noble Lord, Lord Dean of Beswick, that he was exceeding the rules of Report stage. As the noble Lord will find from my amendment, I sympathise with what he said. However, he said it at the wrong time; and we have to stick to the rules.
At Committee stage, the amendment was moved in the same form as a probing amendment. I move it again because I was concerned to ensure that an application made under the terms of the clause does not come before several courts in the land at the same time. My noble friend Lady Denton said:
"The courts have existed for years on the basis that they are fully aware of what is going on with regard to proceedings brought before them, particularly duplicate proceedings". [Official Report, 25/3/93; col. 511.]
Noble Lords will know that the CBI advises me. The experience of the CBI is totally at odds with my noble friend's remarks. Following up those remarks, we have checked with the Lord Chancellor's Department. It has confirmed that if applications are lodged in any of the Divisional Courts of the Queen's Bench Division up and down the country, as they will be under citizen's rights, those must of course be accepted. There is no way of checking whether another application has already been made with regard to the same matter. It is clear therefore that without some means of funnelling the applications which seek the one injunction, there will be an unacceptable wastage of public funds and time, not to mention companies' funds and time. There may be many ways of achieving that aim. I know that a number of options have been put to the Government by the legal advisers to the CBI. My amendment is one such option.
My noble friend Lady Denton raised another. point in Committee. She was not aware of any other legislation which expressly required the courts to have regard to whether an application had already been made to it in respect of the same matter. Other Members of the House may wish to comment on other legislation. My point is that no other legislation is
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quite like that which the Government propose in Clause 21. I believe that that statement is in tune with what noble Lords opposite have said.
In most applications before the courts few people will come to the court and say, "I wish to have an injunction with regard to such and such a matter". In most cases perhaps only one or two persons will have the right to seek court action. That is what I believe lawyers call locus standi. In such cases therefore it is obviously of less import for the law expressly to state that the court shall have regard to whether other applications have been made.
With Clause 21 the situation is quite the contrary. Hundreds or thousands of persons might be affected by unlawful industrial action. The noble Lord, Lord McCarthy, referred to British Rail. One can understand that there might be circumstances in that particular affair in which hundreds or thousands of persons might be affected by an unlawful industrial action. Each of those as individuals would have a locus standi to bring individual proceedings for an injunction. As drafted at present, nothing in Clause 21 prevents such an inundation of the courts occurring. That is the point I seek to make with my amendment. That is why this draft legislation is different from other legislation. That is why express wording limiting the duplicating of proceedings is necessary.
I well understand that there may be other and better ways of making such provision. The CBI has suggested one or two to my noble friend's advisers. However, as noble Lords opposite stated at different times and in different ways, nothing in Clause 21 as drafted at present limits the number of actions that could be brought, at great cost to the Crown let alone to companies. Trade unions are only one of the parties involved. Perhaps my noble friend will give special thought to this matter. I believe it is probably for the Government to produce the appropriate amendment to encompass this point.
I shall attack the subject in a slightly different way in my next few amendments. It is all part of the same subject. There is a genuine need for Clause 21 to contain some limitation as to how it can be applied so that we do not get overwhelmed by people taking advantage of what it seeks to do. Though I am fully in support of the principle of giving individuals a chance to have a bash, we do not want all the individuals to have a chance to have a bash. I beg to move.
10.15 p.m.
Lord Rochester: My Lords, I should like very briefly to support the amendment. The noble Lord, Lord Mottistone, has said practically all that can be said in introducing it. For my part, I believe that in this instance the factor that should override all others is the disproportionate industrial disruption that could be brought about by individuals who are not party to the particular trade dispute when negotiations leading towards a settlement may be in an extremely delicate state. If in those circumstances it were known that the courts were under an explicit statutory duty to have regard to whether a duplicate application had been made, I suggest that that might make all the difference in deterring would-be

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trouble-makers from seeking access to the law. I hope that, on reflection, the Government will see fit to accept the amendment.
Lord Wedderburn of Charlton: My Lords, I wonder whether the noble Lord, Lord Mottistone, when he sums up on the amendment, will take that point a little further. If one of the objectives of the amendment —I can see that it may be—is for the court to have some power in relation to large numbers of individuals whom the noble Lord does not want to see in court because they would overwhelm everybody and be a nuisance, does he envisage that the court would have a capacity to deal with the matter by way of costs against the unwelcome individuals whether or not they were supported by the new commissioner?
Baroness Turner of Camden: My Lords, from these Benches I should like to support the amendment moved by the noble Lord, Lord Mottistone, and supported by the noble Lord, Lord Rochester, and, I believe, by my noble friend. Extending the right to sue in the event of unlawful action in the way that this particular part of the Bill does would, in my view, be an open invitation to individuals with a grudge—hence our reference in Committee to "DOT" (Disgusted of Tonbridge). It is, I believe, an invitation to people with a malicious purpose, perhaps egged on—who knows?—by the tabloid press or some sort of political organisation to enter into action under this clause. The amendment by the noble Lord seems designed to deal with some of the dangers that have been posed. Quite clearly it is meant to deal with multiple applications. It seems clear to me that that is a very sensible thing to try to do. To have masses of cases all being dealt with in different courts at the same time would be absolutely chaotic. The courts could be deluged with claims, all of them similar. I wish that we were not going to have this clause. But it seems to me that, if we are to have it, we must have some method by which the courts "shall have regard", as the amendment says, to other applications that have been made under this part. For those reasons I support the amendment.
Viscount Ullswater: My Lords, I have listened carefully to the points which my noble friend Lord Mottistone and the noble Lord, Lord Rochester, put forward in support of this amendment. I am grateful also to my noble friend for giving me advance notice of the specific advice he received from the CBI on this matter. We considered this issue briefly during the Bill's Committee stage. As my noble friend Lady Denton said at the time, the Government believe the amendment to be unnecessary.
My noble friend told your Lordships that it was the established practice for the courts to proceed on the basis that they were fully aware of all proceedings brought before them, particularly with regard to duplicate proceedings. As she also made clear, we are not aware of any other legislation which expressly states that the courts should have regard to whether or not an application has been made in respect of the same matter. It would be a matter for concern if, by including provisions along the lines suggested by this
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amendment, that were taken to imply that in other areas the courts did not have to take account of other relevant court cases.
I understand very well the point that underlies my noble friend's amendment. It would be wasteful, both for the courts and the parties concerned, if duplicated proceedings were to proceed and lead to duplicated orders.
However I do not believe that will happen in practice. I accept that a particular court may not be aware, when it receives an application, that an identical application has already been made in respect of the same dispute. But if that were the case, then the party against whom the proceedings were brought—that is, the union or other person organising the action—would presumably be well aware, and would no doubt inform the court accordingly. If it wished, the court could also ask if the respondent (or plaintiff) was aware of any other similar current proceedings. The court would then decide, in the light of that information, how to proceed with the application.
That, I believe, is what my noble friend wishes to happen. It is, I believe, what would happen in practice. His amendment is not necessary to achieve that result.
I cannot accept that it would be right to impose a specific duty on the courts which would require them to make inquiries as to whether similar proceedings had been brought before hearing an application. That would be an unnecessary burden on the courts themselves. Responsibility for the issue of proceedings is a purely administrative process. The introduction of a duty to consider possible duplication would in effect therefore necessitate the introduction of a further judicial stage prior to any hearing. This would risk delaying and frustrating the hearing of an application under the new right. As I have made clear, it will be a simple matter for the party against whom proceedings have been brought to draw any apparent duplicated proceedings to the court's attention where it was appropriate to do so, or for the court (if it wished) to ask the parties for such information.
It would also be unfortunate if court judgments were to be opened up to challenge on the grounds that a court had not carried out a full check to see whether there were any identical proceedings, before reaching its judgment.
My noble friend Lady Denton did not suggest that the courts would make a specific point of always applying rigorous tests to discover whether there were duplicated proceedings when applications of this type were made. Indeed it would, I believe, be unrealistic and unnecessary to expect them to do so. The point is that the courts proceed—and indeed have to proceed—on the basis that they can be made properly aware of these matters, as necessary, when relevant proceedings are brought before them.
The Lord Chancellor's Department has advised that, whilst the issue of an application would not be refused, once they are issued all these applications will be entered in a central list. This will ensure that the court is made aware of any similar proceedings, pending or concluded, against the same defendant.
Also, there may be room for argument as to whether applications brought in respect of the same

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unlawful act in fact duplicate each other. For example, different applications might cite different reasons as to why the act is allegedly unlawful; or they may involve quite different circumstances of alleged deprivation; or they might seek to halt action in different parts of the country. The essential point is that the individual should be allowed to pursue a genuine application.
I recognise that my noble friend feels strongly about these matters, and is genuinely concerned about the dangers of duplicated proceedings.
However, I hope that the points that I have made have shown that these proposed limitations on the powers of the courts would risk either adding to their difficulties or frustrating the operation of the important new right that we are introducing for individual citizens. With those words, I hope that my noble friend will consider withdrawing the amendment.
Lord Mottistone: My Lords, I understand a lot of what my noble friend said. I have the slight feeling that he is understandably responding to amendments tabled, both earlier amendments and ones to follow, on the assumption that there is nothing new here.
In the course of the Committee stage, let alone now, the possibility has come to light of lots of individual cases being brought to the courts. That has not happened in the past. For example, when there have been instances of secondary action in which people
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were able to sue in the courts or seek an injunction, relatively few people were eligible to take that kind of action. We are now in a situation where all travellers on the railways, the buses, or whatever—and they run into thousands—are theoretically able to do that.
I understand that my noble friend may not want to discriminate against one person or another. But the position requires a little thought, if nothing more. Too many people will be taking the same kind of action. There needs to be a representative. But that is not the point of the Citizen's Charter. We are all citizens and do not want to be represented. We are like Cross-Bench Peers and firmly resist teaming up together.
The provision therefore could lead to a lot of trouble. No doubt the government at the time can step in and stop it. But they will look awfully silly if they have to do that because individuals will say that the government are taking away their rights. It will be better discreetly to limit the rights at this stage, before the legislation starts to bite, than to allow something to happen in the future.
I will not say anything further at this stage. Of course I shall withdraw the amendment. But I hope that my noble friend will think about the potential problems and awful difficulties that governments and others will have if there is not some kind of curb on what Clause 21 is trying to do. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mottistone Lord Mottistone moved Amendment No. 29:
Page 37, line 5, at beginning insert ("Subject to subsection (4A) below").
The noble Lord said: My Lords, in moving Amendment No. 29 I shall speak also to Amendment No. 31. It will not take long because it is on the same theme. Amendment No. 29 is aimed at ensuring that the court grants an injunction only where the application is meritorious. I put that forward as one idea, although it will not get over what I have been talking about.
Many industrial disputes involve action which has a widespread effect on the subject. There are some situations in which the intervention of the law may prove unhelpful to the parties, particularly if they are on the verge of settling a matter. It is not difficult to imagine somebody coming to court who is motivated not so much by having his supply of goods or services restored, but who is more concerned with using the law to further some other cause. I am afraid that happens. All kinds of pressure groups pester your Lordships and, indeed, some of us are pressure groups ourselves.
We must therefore be careful that the real intention of the measure is not subverted by some other machinations. It may well be that at a sensitive stage the obtaining of an injunction will temporarily halt the disruption, but may result in hardening of attitudes and so forth. In that situation it may not be in the public interest to grant an injunction and that is what the amendment seeks to address. By requiring the court to have regard to the wider public interest before making such an order, a check will be imposed on those who seek to use the law for their own purposes regardless of the longer-term effect that that might have on the economy and the public at large. I beg to move.
10.30 p.m.
Lord Wedderburn of Charlton: My Lords, the noble Lord has raised an important point which leads to a further question. I shall put it briefly in this form. He has raised the question of applicants under Clause 21 pursuing an ulterior motive. The noble Lord put it in that way. It makes me ask the Minister whether the court's functions under this clause would be regarded as within the range of its discretionary equitable remedies. If it is within the range of the normal discretionary equitable remedies, would the normal equitable limitations apply to the use of its discretion? The one which the noble Lord brings to mind is that well known and important maxim that he who comes to equity must come with clean hands. Will the court reject an applicant if his or her hands are not clean? The noble Lord has raised a rather important question.
Lord Rochester: My Lords, I am glad to support the amendment which seeks to limit the damage that Clause 21 could so easily inflict on attempts by both management and trade unions to settle disputes, particularly in forcing trade unions to spend time and resources not in dealing with the dispute itself but in defending their case at law. The amendment aims to
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bring a little more industrial realism into the clause. I hope therefore that, with or without very much conviction, the noble Viscount will accept it.
Baroness Turner of Camden: My Lords, I too support the amendment. As I am sure the Minister is aware, Clause 21 has occasioned a fair amount of hostile comment, and not only from trade unions. Having said that, the trade union movement does not defend unlawful action. It would like to see disputes resolved through established procedures. However, whether or not a dispute is lawful, it is essential that nothing should stand in the way of early resolution. It is surely understandable even by the Government that people do not willingly withdraw labour, with all that that means in forgone wages and losses generally, without some cause at the back of it. Therefore, employers and unions have a common interest in opposing any legislation which would make a settlement more difficult to achieve.
The amendments in the name of the noble Lord, Lord Mottistone, compel the court to have regard to all the circumstances in the case. They deal with the fears expressed by employers as well as unions that a settlement could be delayed with all that that could mean in terms of extra costs and further destabilisation. That will happen unless the courts are allowed to take the possibility of a settlement into account.
Amendment No. 32, to which I think the noble Lord spoke—
Lord Mottistone: My Lords, at this stage I am speaking only to Amendments Nos. 29 and 31.
Baroness Turner of Camden: My Lords, Amendment No. 31 refers to the possibility of settlement of the dispute. Is that not right?
Lord Mottistone: My Lords, Amendment No. 31 refers to the public interest.
Baroness Turner of Camden: My Lords, Amendment No. 31 states:
"In determining whether to make an order under this section the court shall have regard to all the surrounding circumstances of the case and, where the court is satisfied that there is a reasonable prospect of a settlement of the dispute, no such order shall be made".
That is Amendment No. 31 on my Marshalled List. Is that right? Have I got it wrong?
Lord Mottistone: My Lords, I have got it wrong. I apologise for the fact that my amendments have become muddled. I thought that I was speaking to an amendment which has come out as Amendment No. 33. I apologise for that. I do not know how we can get this sorted out.
Baroness Turner of Camden: My Lords, when we come to discuss Amendment No. 33, which deals with the public interest, I shall support that as well. In the meantime, I should like to support Amendment No. 31, which states that the court has to take account of whether there is a reasonable prospect of a settlement. I think that is very sensible and I hope that the noble Viscount will be prepared to accept, if not the wording, at least the sentiments that lie behind the wording put before your Lordships.
Viscount Ullswater: My Lords, before we go any further, I think we have got ourselves into a muddle. If my noble friend thinks that he was speaking to Amendment No. 33, the noble Lord, Lord Wedderburn, has an amendment to move to that amendment. I feel the house would perhaps want to hear his amendment. It may be out of order, but I am sure that your Lordships would take a relaxed attitude on this occasion.
Lord Wedderburn of Charlton: My Lords, I appreciate the offer made by the noble Viscount but, as I understand it, Amendment No. 29 has been called, and the noble Lord, Lord Mottistone, spoke at the same time to Amendment No 32. Amendment No. 30 has not yet been called and when it is, it will be discussed with Amendment No. 33, to which my amendment is relevant. Most of the discussion so far has not been relevant to public interest. Public interest is to come.
Lord Mottistone: My Lords, if I might intervene, with your Lordships' leave, I have to apologise deeply. I realise now that my brief for Amendment No. 31 was the one which was meant to go with No. 33. As Amendments Nos. 29 and 30 are paving amendments, perhaps it would be simpler, if your Lordships agree, to approach the matter as though I had moved Amendments Nos. 30 and 33. Is that all right?
Lord Tordoff: My Lords, with respect, Amendment No. 29 was called and that is the amendment before the House at the moment. Therefore, we must either dispose of that amendment or couple with it whatever we wish. Amendment No. 29 is, however, the one before the House at the moment.
Viscount Ullswater: My Lords, I am sorry to prolong this difficulty, but Amendment No. 29 is a paving amendment, and I am extremely unclear as to what it paves.
Lord Wedderburn of Charlton: My Lords, very clearly, Amendment No. 29 goes with Amendments Nos. 32 and 31. Amendments Nos. 30, 33 and 34 are to come. The apprehension of your Lordships no doubt mounts in relation to those amendments, but they come later.
Viscount Ullswater: My Lords, it was because my noble friend had actually changed the grouping that we have perhaps fallen into this difficulty. That is why he said that he was addressing Amendments Nos. 29 and 31 quite specifically; and that is the information he gave to me. However, I shall attempt to address the problems that he has outlined.
I think I should start my response by indicating just what we see as the paramount purpose of the new citizen's right to restrain unlawful organisation of industrial action. That purpose is simply this. We wish to give individuals deprived of goods or services because of unlawful inducement of industrial action an effective legal remedy through which they can protect their interests as they—the individuals —perceive those interests.
As far as customers and potential customers are concerned, it would be the best outcome if they were
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never deprived of goods or services because of any industrial action whether lawfully organised or not. It follows—and here I agree completely with the noble Lord—that such individuals are more than likely to be satisfied where disputes which have deprived them of goods or services are resolved and are very unlikely to bring proceedings under the new right where they believe that a settlement is imminent.
However, I fear that from that point onwards our views may diverge. We maintain that it is up to individuals to form their own view of how best to protect their interests. If an individual believes that he is deprived of goods or services because of unlawfully organised industrial action and that his most effective means of ensuring that this deprivation ceases, would it really be right for the law to be such that be cannot obtain the remedy that he seeks? The Government would say that arrangements which could have that result would be inconsistent with the purposes of the new citizen's right—and, indeed, with those of our Citizen's Charter itself.
I would not claim that individuals will always correctly decide on the best means of protecting their interests. Nor, however, would I claim - and I doubt that my noble friend would do so either - that they would always get it wrong. But we believe that they should decide for themselves. May I turn now to Amendment 33?
Lord Rochester: My Lords, Amendment No. 33 comes later.
Viscount Ullswater: My Lords, I turn now to Amendment No. 31, which was grouped with this amendment. We must therefore ask just what could happen if provisions as proposed by these amendments became part of the law. And in reviewing this, we should consider the matter from the point of view of the individual deprived of goods or services because —he or she believes—of unlawfully organised industrial action. Amendment No. 31 would mean that when he brought his case to court, instead of considering whether the act concerned was unlawful, and had the relevant effects on the individual, the court would have to reach its own view on the question of the prospect of a settlement. If it concluded that there would be a settlement—or even that there was a "reasonable prospect" of a settlement —the court could make no order to protect the individual. Frankly, I would regard that as a situation in which the new right had been rendered nugatory. The situation created would be one where an individual who was deprived of goods or services because of an unlawful act would have lost his case, even though that deprivation was accepted by the court, and the act was also accepted to be an unlawful one.
I should add that there are other practical problems. If Amendment No. 31 were accepted, a court could find that its judgment could be challenged on the basis that it had failed to have proper "regard to the surrounding circumstances" and prospects of a settlement. It is wholly undesirable to put the courts at risk of that kind of challenge.

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Finally, we must also bear in mind that, sooner or later, pretty well all industrial disputes are "settled". In view of that, is it really conceivable that amendments of this kind could amount to anything more than a means of ensuring that the new right could never be exercised so as to obtain a court order against unlawful industrial action?
I hope that my noble friend will reflect on what I have said, as I shall reflect on his case for the amendments. In the meantime I hope that he will withdraw his amendment. Before I ask him do do so, the noble Lord, Lord Wedderburn, asked me whether the court would have regard to equitable remedies. The answer to the question that he posed is "No". If the applicant satisfies the requirements of the clause he is entitled to the remedy it provides, and we believe that that is how it should be.
Lord Mottistone: My Lords, I am sorry for having made such a muddle and for having wasted time, which is the one thing that I do not like to do. I am grateful to my noble friend the Minister for what he had to say. I shall read with great care what he said, and perhaps when we have moved the next amendment and have the whole lot together he will see that it comes back to what I said on the earlier amendment, Amendment No. 28.
There is room for tightening up this clause, and we have not got much time left. It is in the interests of the Government more than anybody else that it should be tidied up to take care of the kinds of things that we have all been saying from both sides of the House. I refer both to those provisions which employers have spotted as being difficult and to those that have been spotted by other sources. It is extremely important that the Bill does not leave this House without Clause 21 being tightened up, but at this stage, I beg leave to withdraw Amendment No. 29.
Amendment, by leave, withdrawn.
10.45 p.m.
Lord Mottistone Lord Mottistone moved Amendment No. 30:
Page 37, line 5, at beginning insert ("Subject to subsection (4B) below.").
The noble Lord said: My Lords, in speaking to Amendment No. 30, I was proposing to speak also to Amendments Nos. 32, 33 and 38. I see that Amendment No. 33, to which I have already spoken, is one that the noble Lord, Lord Wedderburn, seeks to amend. I shall not speak at length on the earlier amendments—Amendment No. 30 is a paving amendment and Amendments Nos. 32 and 33 have been "sort of" covered. We await what the noble Lord, Lord Wedderburn, has to say on that.
I should, however, like to speak to Amendment No. 38, which focuses not on the court, but on the all-important commissioner who has the power to grant assistance from the public purse. The amendment is a modification of one which I moved in Committee when my noble friend Lady Denton was concerned that seeking the views of the employer and the union, whom she felt were third parties, would delay the granting of the remedy. The amendment is redrafted so that the delay would not now occur.
My noble friend rightly said that the commissioner should not be seen as a representative of any particular party but rather as an independent person. I do not believe that my amendment in Committee would have tampered with that independence but, in any event, I hope she will agree that this redrafted amendment makes the presence of independence even clearer than perhaps she might have considered.
In short, this amendment is in keeping with the other paragraph of subsection (3) of Section 235—that is, the initiative rests with the commissioner and it is the commissioner who decides whether to grant assistance to an individual in obtaining an injunction. However, the amendment ensures that, in addition, there is not the comical situation whereby the commissioner should ignore the knowledge that he or she may have concerning the near-resolution of the dispute. I hope that my noble friend will find that this amendment can be tackled more readily.
I turn briefly to Amendment No. 33. Although, as I have already said, it makes the point that it may not be in the public interest to grant an injunction and seeks to address that, by requiring the court to have regard to the wider public interest before making an order, checks will be imposed on those who seek to use the law for their own purposes regardless of the longer term effect that that might have on the economy and the public at large. I beg to move.
Lord Rochester: My Lords, I should like to speak in support of Amendment No. 33 because, with respect to the noble Lord, Lord Mottistone, I do not think that we have really debated that as yet. That is the amendment relating to the public interest. It will have the further advantage, as I see it, that it will enable the noble Lord, Lord Wedderburn, to move his amendment to Amendment No. 33.
Although the noble Lord, Lord Stoddart of Swindon, is not in his place, I am sure that he will not mind me reminding the House that it was he who in turn reminded us of the celebrated occasion when the Official Solicitor had to be roped in to rescue the Government from an earlier embroilment.
As I see it, Amendment No. 33 would ensure that, if the fears that some of us on both sides of the House have expressed as to the possibly disastrous effects of Clause 21 on industrial relations were to be fulfilled, there would be a let-out for the Government. No possible harm could come from including such a provision as Amendment No. 33 on the face of the Bill and if the Government accept it now—as I hope that they will—they may one day be very glad that they did so.
Perhaps I may speak to Amendment No. 34, in the name of the noble Lord, Lord Wedderburn, although I appreciate that he has not yet moved it. It is grouped with Amendment No. 30, and therefore, as I understand it—
Lord Wedderburn of Charlton: My Lords, I understood that the procedure would be that an amendment would he moved and then the Chair would say that it was moved. I was not called to move my amendment, so I dutifully sat in my place. If the

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noble Lord, Lord Rochester, were to have a little patience he might see the reasoning behind the amendment better after I have moved it.
Lord Tordoff: My Lords, with respect to noble Lords, the amendments, as I understand it, are grouped, and therefore the amendment to which the noble Lord, Lord Mottistone, put his name and the amendment to that amendment, to which the noble Lord, Lord Wedderburn, has put his name, are capable of being discussed at the moment, although they have not yet been moved.
Lord Wedderburn of Charlton: My Lords, my amendment comes after the amendment—
Lord Tordoff: My Lords, as I understand it, an amendment can be discussed if it is an amendment to an amendment which is grouped with an earlier amendment.
Lord Wedderburn of Charlton: My Lords, I do not know the precedent for that, but I doubt it.
Lord Dean of Beswick: My Lords, I believe that the noble Lord, Lord Tordoff, is right. It seems in some respects to be out of order, but it is not unknown for groupings to take place, and for the individual amendments to be moved, provided that the mover of the amendments speaks to them. It is not that much out of order anyway.
Lord Rochester: My Lords, it might help the House if I were to make a suggestion; that is, that the noble Lord, Lord Wedderburn, should be enabled to move his amendment at this stage.
Lord Tordoff: My Lords, speak to his amendment.
Lord Rochester: My Lords, I suggest that the noble Lord should speak to his amendment, provided that I in turn am then able to comment upon that amendment.
Lord Mottistone: My Lords, should not the Chair have moved Amendment No. 34 as soon as I had finished speaking? That would then have sorted out the matter. The amendment is grouped with my amendments.
Viscount Ullswater: My Lords, a way of resolving this matter might be if noble Lords would like to address all the amendments that are grouped, and then when my noble friend withdraws Amendments Nos. 30, 31 and 32, perhaps he could notionally move Amendment No. 33, which would allow the noble Lord, Lord Wedderburn, to speak to Amendment No. 34, and then other noble Lords 'could address the point without being out of order.
Lord Wedderburn of Charlton: My Lords, if the House wants me to do that now, I shall readily agree with it. The point in my amendment addresses the central feature of Amendment No. 33, which is, of course, the desire that the court should have the obligation to consider the public interest. We all of us like to think that the public interest is on our side, but the public interest is not a given category. In so far as
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it is within the juridical reasoning of the courts, it is already the obligation of the courts, in remedies of this kind, to consider the public interest.
What I am saying to the noble Lord, Lord Mottistone, is that part of his puzzlement as to why the Government will not accept the amendments is due to the fact that the Government are more interested in enforcing the new rights of every individual, whether his hands are clean or not, as we saw, against trade unions, than in the settlement of trade disputes. It is a clear ideological position.
The Government may, or may not, accept the public interest point, but my warning in this amendment to the amendment tabled by the noble Lord, Lord Mottistone, is that, if they accept it, it will not change anything. It will not achieve any one of his objectives; first, because the courts will say, as they have said about other legislation in this area, that they are already under a duty to do that. Unless one defines the public interest in the way that redirects their eyes in the direction that we want, one will not change anything.
I have tabled my amendment, which has many defects, in order to raise the point that not only are the courts already obliged to consider what they apply as the public interest in discretionary remedies, but also that the common law courts carry over from the past a concept of the public interest which is dominated by concepts of property, leading inevitably to that concept being applied in a way which is contrary to the position in court of a defendant trade union.
Your Lordships may believe that that is a strong statement. I am not attacking the courts at all. I am saying that if one looks at the litigation one finds that a specific notion of public interest is naturally and properly applied by the judges in a way that can never be of assistance to a trade union defendant. I shall give two illustrations, as I am bound to do after making those propositions.
The first is the judgment of the Court of Appeal in the case which arose out of the dock strike case in 1989. That strike will be within the memory of most Members of your Lordships' House. The Court of Appeal reversed the learned judge in the exercise of discretion; first, because he took account of the status quo as involving the future prospects of the workforce and the union and, secondly, because he did not expressly put into account the public interest, namely, the damage done by the strike. Lord Justice Stuart-Smith said:
"There can be no doubt that a complete stoppage in all the Scheme ports will have a major impact on innocent third parties and the economic wellbeing of the nation".
That was his conclusion on the issue of public interest. It may be that many noble Lords believe that that is a proper way to deal with the issue. However, it also shows clearly that a successful strike, on the logic of judgments such as that, will always be held to be contrary to the public interest.
Secondly, in cases of 1979 and 1980 a number of noble and learned Lords in the judicial committee made it clear that there is an overriding discretion based upon public interest, as they put it, which allows them to grant injunctions. It is no good the Minister saying that under this clause equitable maxims would

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not apply to the remedy because it is a discretionary clause. Perhaps he is right in saying that equitable maxims will not be applied in the ordinary way but a discretion is involved in the clause. In those cases Lord Diplock and the noble and learned Lord, Lord Scarman, agreed on the following proposition, which came at the end of their description of when injunctions could be refused. They refused on various grounds and stated,
"but this does not mean that there may not be cases where the consequences to the employer or to third parties or the public or perhaps the nation itself may be so disastrous that the injunction ought to be refused, unless there is a high degree of probability that the defence will succeed".
The loss, not merely to the public at large but also to third parties, or even the employer, is counted by the courts. I am not attacking them in that respect. These are the principles which are applied. However, if one does not amend those principles they will be applied in the ordinary way and even the noble Lord, Lord Mottistone, will find that no difference is made in respect of the application of the clause in court.
I am not asking that trade unions should be let off. One may want to make the courts use their discretion, as French courts do. In regard to discretionary remedies they are apt to give short orders of a few days on condition that the parties negotiate or take certain conciliation steps. If one or other does not, it is worse for them in the next order.
Our courts are not within sight of such use of discretion and public interest. If you said to the courts, "Look at this code of practice as your primary guide", I am certain that the High Court would look at it. I might not like particular decisions but that is neither here nor there. One would get out of the two centuries-old notion of public interest tied to old property notions, which many lawyers who are not at all radical in other ways see as being outmoded.
The reason for tabling the amendment is to warn the noble Lord, Lord Mottistone, to sign no public interest signs. Unless one does something about the meaning and application of public interest it will make no difference to Clause 21.
11 p.m.
Baroness Turner of Camden: My Lords, I support the amendment moved by the noble Lord, Lord Mottistone, but I should be much happier if my noble friend's amendment were accepted. As he has indicated, "public interest" is an extremely wide term and no doubt judges would say that they take account of the public interest in any event, perhaps in the terms in which my noble friend has explained.
However, my noble friend's amendment seeks to define more closely what that should mean in industrial relations' terms. It still leaves the court free to consult with whichever bodies it deems appropriate, but it lays upon it a duty to have regard to ACAS codes of practice and ILO conventions. We are talking about an industrial relations situation here. Therefore, I hope that the Minister will support my noble friend's amendment and that the noble Lord, Lord Mottistone, might be prepared to accept it.
Lord Rochester: My Lords, in the difficult procedural position in which we find ourselves, I hope that I may have the leave of the House to comment on the speech of the noble Lord, Lord Wedderburn, on his amendment, having already spoken to Amendment No. 33.
I rather hope that the noble Lord, Lord Wedderburn, will not press his amendment if only because I suspect that its contents will be opposed by the Government as savouring too much of corporatism. Therefore, on those grounds alone, it might be more politic to support the amendment of the noble Lord, Lord Mottistone, as it stands. I recognise that there may be difficulties, to which the noble Lord, Lord Wedderburn, referred, in adopting that course on the grounds that a bird in the hand is worth two in the bush—leaving the courts to have regard to what they conceive to be in the public interest.
If that presents difficulties, as the noble Lord, Lord Wedderburn, believes, I suggest that it would be more appropriate, having accepted the principle underlying the amendment in the name of the noble Lord, Lord Mottistone, to find some means, other than the code of practice with its corporatist attitude, to examine what is the public interest. I come back to where I started. I support in principle the amendment moved by the noble Lord, Lord Mottistone.
Viscount Ullswater: My Lords, at the outset I am speaking to Amendment No. 30 which is the paving amendment, but we seem to have tagged on a number of other amendments and perhaps I should address them all.
I am grateful to my noble friend for the explanation of his amendment and the various other amendments which I understand we are considering. I shall try not to number them in case I get them wrong.
As regards Amendment No. 32, many of the points I made in our previous debate on Amendment No. 29 remain relevant. To recap, the proposed new right will protect individuals who, at present, are powerless to use the law to help protect their interests when deprived of goods or services because of unlawfully organised industrial action.
Turning first to Amendment No. 32, we should not expect an individual contemplating proceedings under the new right to "second guess" what representations might be made to a court by:
"the employer or employers against whom the industrial action has been directed".
Even more importantly, we should not ask a court to refuse an order which it would otherwise grant on the basis that it considers that there is a "reasonable prospect of a settlement" for the reasons I pointed out during your Lordships' debate on Amendment No. 29.
Similarly, as regards Amendment No. 33, why should an individual have to second guess the court's decision about whether an order which the court would otherwise grant would, or would not, be held by the court to be in the "public interest"? If an individual deprived of goods or services because of unlawfully organised industrial action would be entitled to an order from the court under the right as presently proposed, how could we justify making it

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impossible for him to do so because of something he could not anticipate; that is, how the court would view "public interest"? Nor, indeed, should we put the courts themselves at the risk of seeing judgments challenged on the basis that they had somehow failed to take "public interest" properly into account.
By way of an amendment to Amendment No. 33, the noble Lord, Lord Wedderburn, takes the point a little further. It is one thing to require the courts to have regard to the public interest, but quite another to require them to take account of what another body considers to be in the public interest. As they have shown in the past, the courts are well able to determine what is in the public interest when it is appropriate for them to do so.
As it is, the terms of Amendment No. 34 indicate only too clearly the difficulty, perhaps even the folly, of attempting a rigid definition of "public interest" for the purposes of directing the courts. Why should the process proposed by the amendment produce the right kind of result? Indeed, is it likely to prove possible even for ACAS to come up with a viable definition of public, interest out of the proposed process of consultation? Even if I thought that Amendments Nos. 30 and 33 were desirable—which I have to say that I do not—I am of the view, along with the noble Lord, Lord Rochester, that Amendment No. 34 is neither constructive nor useful as an addition.
Amendment No. 38, which is also included in this group of amendments, addresses a rather different issue. Its provisions would not modify the powers of the courts, but those of the new Commissioner for Protection Against Unlawful Industrial Action.
As pointed out in Committee, it is helpful to both the new commissioner, and to those who might bring proceedings under the new right, to have certain indications of the kind of issues which the commissioner might consider when deciding whether or not to grant assistance. I have to say, however, that the amendment could send the wrong signals in that respect.
I am sure that my noble friend would accept that virtually all disputes are eventually settled. However, we are dealing in practice with cases where a settlement has not been reached, and the individual is suffering (or may suffer) deprivation caused by unlawful industrial action.
If it is clear that a settlement is imminent—and that is a matter which the commissioner will be able to take into account in deciding whether to grant assistance —but it is unnecessary to include a specific provision to that effect, Section 235B(3) does not prevent the commissioner taking account of such factors. However, I can assure my noble friend that the commissioner, like any other publicly-funded body, will have a responsibility for the proper use of taxpayers' money.
I appreciate that my noble friend Lord Mottistone is concerned about the hypothetical possibility that the exercise of the new right might cause damage to good industrial relations. However, we do not agree that the risk of that happening is significant enough to warrant undermining the effectiveness of the right in
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the way which could happen if the amendment was accepted. I hope, therefore, that my noble friend will feel able to withdraw his amendment.
Lord Mottistone: My Lords, I thank my noble friend and, indeed, other noble Lords who have spoken for helping me to salve the mess into which I put your Lordships and for which I again apologise. I think that we got over the message, albeit in different ways. I note what my noble friend said. Tackling each amendment in turn, I must say that, of course, they are all imperfect in their own way. That is understandable. It is difficult to see how we can have a comprehensive something. I was seeking a comprehensive something from the CBI, which led to what turned out to be Amendment No. 33. I thought that the individual amendments would be shot down. I said, "Please get me one which is all-encompassing". That is the one that the confederation provided me with and the one that the noble Lord, Lord Wedderburn, sought to amend. I believe it is the one agreed to by the noble Lord, Lord Rochester, but by practically no one else.
However, having said that, although the Minister tells me that I am more worried about what might happen in hypothetical cases than I should be, I should like to leave him with the thought that Clause 21 brings new law into existence because of its potential use by so many thousands of people. It will have a locus standi, as I was saying earlier, which in other legislation has tended to be limited to relatively few bodies and therefore the lawsuits are of manageable numbers. I leave that thought with my noble friend the Minister. I shall not bother him further except to say that I may be difficult on Third Reading. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 31 and 32 not moved.]
The Deputy Speaker (Baroness Cox): My Lords, I should point out that if Amendment No. 33 is not moved, I cannot call Amendment No.34. I call Amendment No. 33.
Noble Lords: Not moved!
[Amendment No. 33 not moved.]
[Amendment No. 34 not moved.]
Viscount Ullswater Viscount Ullswater moved Amendment No. 35:
Page 37, leave out lines 32 to 35.
The noble Viscount said: I should say at the outset that the origin of this amendment lies in one moved by the noble Lord, Lord Wedderburn, in Committee. I am rather sad that the noble Lord, Lord Howie of Troon, is not in his place so that he could hear my words as he accused the Government of saying "No" to everything and never listening. I say that fairly lightheartedly.
I now turn to the amendment. An individual will be able to seek a court order under the new citizen's right to prevent the organisation of industrial action which is either actionable in tort or could be the basis of an application by a union member, under Section 62 of the Act, on the grounds of failure of his union to ballot before calling for industrial action. The individual

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must, of course, be able to satisfy the court that he will be deprived of goods or services because of the act concerned.
It is also a principle of the new right that it should not have the result of turning any act which is not actionable in tort or under Section 62 into one against which a court order could be made as a result of proceedings under the right. As the noble Lord pointed out in the debate on Amendment No. 124, Section 62 itself includes provisions which mean that, for the purposes of that section, it does not matter whether a call for industrial action is (or would be) effective or ineffective; and to be "actionable in tort", it must be an element of the tort that the inducement is (or would be) effective.
The amendment that the noble Lord tabled in Committee did not directly propose to remove the new Section 235A(7)(a). However, we naturally gave careful consideration to the arguments he then made, even though we resisted that particular amendment. It was that consideration that has led us to propose the amendment now before your Lordships. While it is a government amendment, I am happy to acknowledge the part played by the noble Lord in bringing this matter to our attention. I beg to move.
Lord Wedderburn of Charlton: My Lords, I thank the Minister for his comments. If my noble friend Lord Howie were here, he would realise that although the Government frequently do not listen, they do read. This amendment is welcome and it removes what we considered to be an unnecessary objection to the clause.
Viscount Ullswater: My Lords, I am, of course, grateful for those comments.
On Question, amendment agreed to.
[Amendment No. 36 not moved.]
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 36A:
Page 37, line 38, at end insert:
("( ) Where an individual could apply to the court in respect of an act under this section, whether such an application is made or not, subsection (6) of section 62 shall not apply to an application made in respect of the same Act under that section.").
The noble Lord said: My Lords, this amendment is in a sense consequent upon the amendment which the Minister has just made. I am not trying as it were to push my luck by trying to get something in addition to that which we have already got, but I would like to ask the Minister through this amendment whether or not the following consequence really arises.
One might say that there are four major situations where an inducement is very important in relation to the liability of a trade union especially —sometimes of other persons as well—in the 1992 Act and in the Bill. Depending upon the interpretation of the meaning of the word "inducement", the liability may or may not fall. Section 219 concerns the general protection for inducing a person to break a contract in a trade dispute. Section 226 concerns the position where a trade union's act to induce a person to take industrial action is the basis of liability if it does not go through all the hoops. Finally, under Section 62 a
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union may suffer an order from the court if it induces members to take part in industrial action. Here, under the Bill, Clause 21 bites upon an act which induces a person to take part in industrial action. There are other illustrations, but I suggest that those four situations are the building blocks of the Government's trade union law.
In three out of four of those situations now, following the amendment moved by the Minister, inducement has to be effective in some respect. That leaves one area where inducement need not be effective but still counts. There is notional inducement, which is not really inducement but counts against the union in court. It is still not clear exactly what it is, but it is different from the normal case. That area is Section 62, where a member takes action in court against the union.
The argument of the amendment is parallel to that which I advanced previously about the dangers of having different procedures according to who is the plaintiff. Here we have another case where, depending on who turns out to be the plaintiff, the union may or may not be liable. The amendment suggests that we should at least make clear the principles of liability by taking the one remaining non-inducement which counts as an inducement, in Section 62(6), and say that that, too, must be a real inducement. It is not a great defence for a union. If there is some evidence of inducement that will normally be enough, but there will be the occasional case in which this particular subsection—which now sticks out like a sore thumb —could make a difference and produce liability almost by chance and not on any principle in the Government's legislation.
I do not expect the Government to accept the amendment immediately, but I hope that the logic of the position will be clear when after our debates they come to read in Hansard what I have said. I beg to move.
Lord McCarthy: My Lords, I hope that the Minister who replies to the debate will take the point on board. In a sense my noble friend Lord Wedderburn is pushing his luck, but the logic of the argument has been considerably reinforced by the attitude which the Government have taken in respect of the previous amendment. It would be unfortunate if the Government were to tell us, much as the noble Baroness did on the previous occasion, why they could not accept a move away from ineffective inducement only to find at Third Reading that they could do so. Perhaps they could tell us tonight that they can accept the amendment.
Viscount Ullswater: My Lords, I am most grateful to the noble Lord, Lord Wedderburn, for his explanation of the amendment. I hope that my response will persuade him that it is neither appropriate nor necessary.
Perhaps I should indicate that we read very carefully in Hansard what the noble Lord says. We consider very carefully what he says. It is not always easy to respond to some of the problems that he poses

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when he moves his amendments because he speaks rather more around the subject of the amendment than to the words on the printed page.
As the noble Lord, Lord Wedderburn, is aware, the Government moved Amendment No. 35 to deal with a similar anxiety which he raised at Committee stage in relation to provisions which were proposed as new Section 235A(7) (a). We accept that the effect of Section 235A should not be to turn any act which is at present lawful and, where appropriate, protected by the statutory immunities or protected against proceedings by a member under Section 62 into one against which proceedings could be brought under the new right.
If the noble Lord's current concern is that the definitions of "inducement" or "industrial action" in Section 62 might somehow come to be applied to determine whether an act was tortious, I can assure him that there is no risk of that happening. "Actionable in tort" means no more, and no less, than that an act would fall to be treated as such under the law as it stands. There is no question of a call for industrial action being treated as tortious simply because of definitions in Section 62(6). Those definitions relate to a particular statutory right and not to any tort.
Of course I shall read carefully what the noble Lord said. However, I return to my original remarks. I believe the amendment to be unnecessary and perhaps inappropriate. I hope that the noble Lord will withdraw the amendment.
Lord Wedderburn of Charlton: My Lords, the noble Viscount is very kind when he states that I speak around the subject; I know that he means I go too wide. However, perhaps I may develop one point further. Perhaps I may put it in a sentence. Inducements under Clause 21 must be real inducements. We therefore have a problem in relation to Clause 21(2) (b). I apologise to the noble Viscount that I did not spell this out. When he considers the debate will he look at new Section 235A(2) (b)? Where an act can form the basis of an application by a member under Section 62, it counts as unlawful action in new Section 235A.
We have now knocked out the unreal inducement from Clause 21. We therefore have a clause which states that there must be an inducement and it must be real. We have knocked out the fact that it need not be real. But the new Section 235A(2) (b) reference to Section 62 is to an inducement which need not be real.
Those circles of inducements which are real and unreal—another circle has been set up by the way that the debate has progressed—are unnecessary. They will lead to total confusion in litigation. Surely it is sensible to say that an inducement is an inducement. If one wishes to define that, one can do so. But do not have different definitions in clauses which interrelate.
That is the point which I failed to make. I apologise again. The clauses interrelate. New Section 235A is dependent on Section 62. But new Section 235A has a different definition of inducement from Section 62. Rather than my attempting to move matters too fast, perhaps the Minister will consider the provision. In
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the grave hope that he will consider the interrelationship between Section 62 and new Section 235A, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 37 to 39 not moved.]
Lord McCarthy Lord McCarthy moved Amendment No. 40:
Page 39, line 26, at end insert:
("( ) In providing such advice and assistance, the Commissioner shall apply similar criteria and conditions as are currently applicable in the case of individuals seeking assistance under the Legal Aid Scheme.").
The noble Lord said: My Lords, we take Amendment No. 40 seriously. It deals with the proposed system of advice and assistance which will be given to people by the new commissioner. Amendment No. 40 states:
"In providing such advice and assistance, the Commissioner shall apply similar criteria and conditions as are currently applicable in the case of individuals seeking assistance under the Legal Aid Scheme".
We believe that that would be equitable.
The House will know, because there has been considerable controversy in this House and elsewhere, what has happened recently to the legal aid scheme. Noble Lords will know about the Lord Chancellor's proposals of last November in the context of the Autumn Statement. They will know about the way in which the free disposable limit was reduced by about 27.5 per cent., from about £3,000 a year to about £2,000, so that all applicants for legal aid with pay above an income support level of £44 a week would find that they would have to bear some of the cost of litigation themselves. Noble Lords will know too that at the same time as the Lord Chancellor proposed those changes in the legal aid scheme, there were corresponding reductions in the dependants' allowances. They will know that at the same time there was an increase in the fraction of income to be counted above the free limit from one quarter to one third.
Finally, they will know that at the same time the Lord Chancellor announced the abolition of the free legal advice scheme. They will know, as has been said by many interested parties, by Members of this House, and by noble and learned Lords who took part in debates, that it has been calculated that the effect of the changes will be to reduce the value of the present legal aid scheme to between about 12 million and 14 million people (or 37 per cent. of households). They will know that the Law Society has calculated that there will be a very significant increase in the present proportion of those who consider that the existing legal aid level is insufficient to enable them to continue with the possibility of litigation.
We want the Government to contrast that reduction with what is suggested not simply for the CROTUM but also for the new commissioner. There is to be, as we see it, no upper limit to eligibility and no system of income fractions. A totally free legal advice service is being given to those who want to go against trade unions in the same way as it was given under the provisions of the CROTUM—this time in the case of unquantifiable, non-contractual, immeasurable quasi-deprivation.
We do not see how the Government can conceivably justify such a measure. Justification was

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advanced by the noble and learned Lord the Lord Chancellor in reducing the value of the legal aid scheme—the scheme which would apply to innocent people charged with murder and to people seeking redress from serious deprivations—measurable deprivations —of all sorts. The argument which was advanced for reducing the scope of the legal aid scheme was that of the public sector borrowing requirement. It was said that the present legal aid scheme could not be afforded, and that there were escalating costs. We know now that there are no escalating costs so far as the CROTUM is concerned —except in so far as the CROTUM herself costs a lot of money and goes around the country drumming up business.
It may very well be that the new commissioner will also have no cases; we do not know. Nor do we know what the Government are putting into the kitty to finance the new commissioner. But we do know the distinction between what is being done to the legal aid scheme for all other forms of legal redress and what is being done in the case of these two instances of special commissioners giving special aid to people who want to put arguments and cases against trade unions. We know that this cannot conceivably be justified. The only way that the Government or anyone could say that it was even remotely explicable is if there were concrete evidence of such infringements of the Government's anti-union laws that they had become a public scandal and that therefore everything had to be done, at whatever cost, to provide people with cost-free ways of proceeding against trade unions. The Government do not say that. On the contrary, they say that their system of legislation against trade unions—the new rights that they have created and the rights that they will create—will give us the best industrial relations in the world. How can they justify it on those grounds?
Secondly, the Government may say that there is so little ground for litigation that if one expected anybody to pay anything, to contribute in any way, towards prosecuting these cases, nobody would come forward at all. In other words, if the CROTUM could not give a blank cheque, nobody would go to the CROTUM. I suggest that even that would not apply to the new commissioner, who will give all kinds of rights to quite a different race of people. Therefore we say that such a measure is totally unjustified. We say that there is something mildly indecent about the distinction between the two levels of compensation, and we ask the Minister to justify it. I beg to move.
11.30 p.m.
Viscount Ullswater: My Lords, I understand that noble Lords opposite are not convinced of the need for special assistance which the new commissioner will be able to provide for proceedings under the new citizen's right. I listened very carefully to the words of the noble Lord, Lord McCarthy. He seemed to spend a long time complaining about the limit put on the increase in the legal aid budget without recognising that it was a considerable increase on last year. Year
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on year it shows an increase. I do not believe that there should be a valid analogy with proceedings assisted by legal aid.
I shall return to what was said at Committee stage. In response to an amendment—I believe it was Amendment No. 131—my noble friend Lady Denton explained the special features which, we believe, justify the special assistance which the new commissioner will be able to offer and which also explain why we cannot accept that the conditions applicable to an award of civil legal aid should apply.
My noble friend made these points in particular: first, that the remedy available under the new right will be a restraining order and not damages; secondly, that the individual will always be seeking assistance for proceedings against trade unions, which have considerable financial and legal resources; and, thirdly, that an individual exercising the new right will almost certainly be acting in what might loosely be described as a "representative capacity", since the award of a restraining order is likely to benefit a good many other people besides the particular plaintiff.
In responding, the noble Lord, Lord McCarthy, commented on each of those points. However, he failed to recognise the importance of taking all those factors together. The point is that all the proceedings which can be granted assistance from the commissioner will share those characteristics. It is not the case that all applications for civil legal aid would do so. Indeed, I suspect that the particular combination would apply to very few.
Of course we are concerned about the limit on public expenditure. I am sure that noble Lords will welcome the announcement made last December that we intend to offer the appointment as new commissioner to the present Commissioner for the Rights of Trade Union Members, Mrs Gill Rowlands. Locating the new commissioner's offices with those of the present commissioner will achieve savings as against the resources that would be involved in establishing a completely new office. We are mindful of the need to get the best value from taxpayers' money in this regard as in all other areas of public expenditure.
I suspect that I have not been able to convince the noble Lord with my arguments. But I also suspect that there may well be no arguments that I could present that would do so, so long as we propose that the new commisioner's assistance should be available without the kind of conditions that currently apply to awards of legal aid. Nonetheless, I hope that the noble Lord will withdraw his amendment.
Lord McCarthy: My Lords, the noble Viscount will not be surprised at what I say as regards his remarks. I do not know whether he has heard that in the Department of Employment they say that the reason why Mrs. Rowlands is getting this job as well as the other job is to show that she can work one day a week.
I am not surprised at what the Minister said. I did not say and perhaps I should have said that the legal aid budget was increased. Yes, it was increased, but not by the amount of the increase in the cost of litigation. That is the problem. It was not increased enough to take into account the increase in demand on

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the legal aid budget. But it was increased; that is quite right. The question is why a similar kind of procedure and a similar level of benefit should not apply to those other cases.
The noble Viscount has not put forward any further arguments. He has not even put forward any arguments at all. He reminded me of the arguments that we had in Committee when the noble Baroness was answering a similar range of points. She raised the point about restraint; she said, in answer to my points that in the case of the commissioners it would take the form of a restraining order. She said that the trade unions have legal resources and she said that there was a representative capacity. The only point that has been made by the noble Viscount is that he thinks I should add those arguments together.
My students sometimes say that. They say, "You gave me a gamma last week and the week before and again the week before that. Can't we add them all together?" I reply, "That is three gammas and three gammas make a gamma". It is no good. If there is no case on one, two and three, there is no case at all. There is no case at all. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 41:
After Clause 21, insert the following new clause:
("Industrial action abroad
. The following subsection shall be added to section 244 of the 1992 Act—
"(6) An act done in contemplation or furtherance of a trade dispute shall not be actionable if

(a) it is done outside the United Kingdom, and

(b) it is lawful in accordance with the law of the country in which the act is committed."").

The noble Lord said: My Lords, we touched earlier on the problem of industrial action which takes place abroad; that is, outside the United Kingdom for the purposes of this part of the law. Should action which is lawful outside the United Kingdom, under any circumstances, be actionable in English courts? Most people assumed that the answer to that question was no. Indeed, when the present law on trade disputes was restricted by Section 18 of the Employment Act 1982, there was discussion about a specific restriction which was placed upon a trade dispute which related to matters abroad.
I do not wish to raise the pluses or minuses in that debate, where the Government added the formula that the trade dispute could relate to matters abroad so long as its effective work was in Great Britain. However, no one suggested in those debates—no one for a moment would have thought to do so—that United Kingdom courts would take jurisdiction over industrial action which had been undertaken completely lawfully abroad because it would have been unlawful in Britain. It is a curious notion but I am afraid that it has now occurred.
In the case of Dimskal Shipping in 1992 your Lordships' judicial committee decided by a majority that that could be done. Since we are now concerned with the general law on trade disputes and liabilities of trade unions, that happens to be a rather important
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expansion of liability in regard to what the courts now call "economic duress"—a doctrine which I say in passing the Canadian courts have refused even to discuss in the area of labour relations because it obviously throws a further balance out in favour of employers. But the judicial committee accepted that it gave rise to liability here.
It was a case where a flag-of-convenience ship, with a Panamanian flag and an exploited Filipino crew, (which is so common from a third world country in these flag-of-convenience ships) was boycotted by Swedish unions and by the International Transport Federation which has offices in London. The Swedish courts would not consider any action because what was being done was completely lawful in Sweden. The consequence was that the owners had to pay proper wages, back-dated, to the crew, and certain other payments. It was argued that in the English courts they could recover that money which was paid by reason of the agreement, and that the English courts should require restitution by the International Transport Federation resident within the jurisdiction here.
The noble and learned Lord, Lord Goff of Chievely, said, and it had been argued,
"that a man ought to be able safely to regulate his conduct by complying with the laws of the country in which he finds himself. This may be true so far as the criminal law is concerned; but I cannot see that it applies in the case of matters which may affect the validity of a contract governed by some other system of law".
He led the four noble and learned Law Lords to the conclusion that restitution should take place. A severe dissent was pronounced by the noble and learned Lord, Lord Templeman, who said,
"the courts of this country should not concern themselves with industrial action lawfully carried out in the place where that action occurred … Moneys paid as a result of conduct lawful where committed and irrecoverable in this country under the law of tort [which is this case] should not be recoverable in this country under the law of restitution. The contents of a bottle cannot be changed by altering the label".
The amendment says to the Government that there is a need, in this extremely delicate area of industrial relations, for the Government to keep an eye on the way in which precedents in the courts are going. If this House and the other place reach the conclusion that it was a wrong direction, that the doctrine of economic duress has now been introduced not merely in regard to economic duress so-called in Britain, for which there is no immunity in the statutes, but also in regard to actions which are completely lawful abroad but which can be called economic duress as though it happened here, then perhaps the courts have gone a little too far. With a dissenting opinion by an authority such as the noble and learned Lord, Lord Templeman, there is a case for Parliament to say, "Wait a minute, you have gone a little far. Acts which are lawful in the country where they are committed so far as concerns trade dispute law should not be actionable on some pretext of their being transposed into another course of action in the British courts". I beg to move.
Viscount Ullswater: My Lords, in spite of what the noble Lord said in moving the new clause, I do not agree that such provisions are necessary or desirable.

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The clause would effectively limit the right to bring proceedings to halt an act which, if done in this country, would render a person liable to proceedings. That limitation would apply without regard to the effects of the act—which could be effects occurring in this country.
The noble Lord also said that the Dimskal Shipping company case demonstrates the need for provisions as proposed by the amendment. I am aware of the case and have considered whether its outcome requires any amendment to UK legislation. However, the fact is that the statutory immunities to which this amendment relates are relevant to the protection of acts against proceedings in court. I believe that the noble Lord will find that in the Dimskal case the judge at first instance held that the ITF was not liable in tort and that the shipowners did not pursue their claim in tort thereafter.
As the noble Lord well knows, the statutory immunities have never operated to protect an act against proceedings other than proceedings in tort. The Government have no plans to extend the immunities so that they prevent other kinds of proceedings, as we see no need whatever to do so. We find the new clause unacceptable. I hope therefore that the noble Lord will withdraw it.
Lord Wedderburn of Charlton: My Lords, I have three points for the noble Viscount and for his reading. First, it is not the case that immunities have operated only in regard to a liability in tort. The most important liability, excluded by an immunity since 1871, is that which would make a union liable for the
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doctrine of in restraint of trade, which is much more important in many ways than the liabilities in tort. If that is the basis of the noble Viscount's argument, it needs perhaps to be reconsidered.
It is not of course necessary to move this amendment into the law but it is desirable if one sees a doctrine being introduced which not only is an expansion of liability—that is before us as a side wind —but which also expands liability for acts done abroad. We are rapidly entering an area where transnational obligations and problems are first on the agenda. It is extraordinary that, whereas other courts are making great efforts not to expand liabilities and to hold the position stable, the Government should at this moment take this extraordinary attitude to a judgment which exposes new liabilities which can rest only on trade unions. However, that is perhaps, as it has been throughout the day, their judgment. It is desirable because it puts another liability on trade unions. This Bill will mark them out as an Administration for which we have no precedent in regard to industrial relations and civil liberties. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

Citibank Europe Bill [H.L.]
Committed to an Unopposed Bill Committee.

Unibank Bill [H.L.]
Committed to an Unopposed Bill Committee.
House adjourned at sixteen minutes before midnight.