HL Deb 26 April 1993 vol 545 cc79-138

Consideration of amendments on Report resumed.

Clause 17 [Notice of ballot and sample voting paper for employers]:

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—

  1. (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,
  2. (ii) in relation to which the requirements of sections 227 to 231 were satisfied, and
  3. (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 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 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 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 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 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 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 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 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 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 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.

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 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.

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 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 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". 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.

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 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 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 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 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 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 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 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 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 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—

  1. (a) a corporate person;
  2. (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
  3. (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 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 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 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


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 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: 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 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 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, 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 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 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 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 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 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 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 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 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 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.

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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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

  1. (a) it is done outside the United Kingdom, and
  2. (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 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.

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 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.