Lords Sitting of 16 March 1993

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

NHS: Parliamentary Scrutiny
Lord Dean of Beswick Lord Dean of Beswick asked Her Majesty's Government:
Whether they will guarantee that there will be no reduction in the level of parliamentary scrutiny of the NHS if and when regional health authorities are dispensed with.
The Parliamentary Under-Secretary of State, Department of Health (Baroness Cumberlege): My Lords, we have no plans to seek to reduce the level of parliamentary scrutiny of the NHS.
Lord Dean of Beswick: My Lords, I thank the Minister for that reply. Is she aware that only three or four weeks ago there were strong rumours in the press that it was a hairline decision that the Government took to keep the regional health authorities? Can she give an undertaking that, if and when the regional authorities are dispensed with, whoever succeeds them, in whatever form, will be subjected to the same parliamentary scrutiny as now, and that Members of this House will be able to put Questions regarding them to which Answers will be given by a Minister across the Dispatch Box and not by somebody who is chairman of a quango which is literally answerable to nobody?
Baroness Cumberlege: My Lords, I give that undertaking.
Lord Molloy: My Lords, can the noble Baroness give the House an assurance that, whatever changes take place, both the trusts and the directly managed units will remain responsible to Parliament, and that every endeavour will be made to fulfil the Government's obligations with particular regard to MIND and other mental health organisations?
Baroness Cumberlege: My Lords, the National Health Service is publicly funded. It is quite right that it should have direct accountability to Parliament.
Lord Dean of Beswick: My Lords, is the Minister aware that I am extremely grateful for her reply to my supplementary question and only wish that Ministers in another place who cover the same subject treated Members there with the same candour as she treats Members of this House?

M.11 Link: Effects on Housing
2.38 p.m.
Lord Jay Lord Jay asked Her Majesty's Government:
Whether they will review the M.11 link motorway project in north east London in view of the proposed destruction of occupied houses, the compulsory eviction of some 1,000 occupants, and the refusal of legal aid to those threatened.
The Minister of State, Department of Transport (The Earl of Caithness): My Lords, no.
Lord Jay: My Lords, if the Government will not review the scheme, and since in this case hundreds of ordinary citizens are threatened with forcible eviction from their homes, cannot the Prime Minister's Citizen's Charter at least help by according the victims legal aid to state a case in the courts and protection against the state machine which is bearing down on them?
The Earl of Caithness: My Lords, as the noble Lord is aware, the scheme has been the subject of extensive consultation, three public inquiries and a court case. The question of legal aid is for the Legal Aid Board. We cannot interfere.
Lord John-Mackie: My Lords, is the Minister aware that the decision to move Spitalfields to the area was based on the extension of the M.11?
The Earl of Caithness: I am sorry, my Lords. I missed the first part of the noble Lord's question.
Lord John-Mackie: My Lords, is the Minister aware that the decision to move Spitalfields Market to a location opposite the roundabout where the new section of the M.11 will join was based on the extension?
The Earl of Caithness: My Lords, I am grateful for the support that the noble Lord gives to the scheme. It will bring extensive benefits to many people in that area.
Lord Harmar-Nicholls: My Lords, is the premise on which the Question is based true?
The Earl of Caithness: My Lords, the Question is accurate in so far as there will be a link road extension to the M.11. It will not be a motorway. There are about 263 properties involved. The number of people who will be displaced is about 550. The Secretary of State owns 197 properties, which leaves 66 to be acquired. The estimated number of people seeking rehousing is about 172.
Lord Cledwyn of Penrhos: My Lords, are the Government in favour of the Legal Aid Board looking at the problems of those unfortunate people sympathetically?
The Earl of Caithness: My Lords, I can assure the noble Lord that the Legal Aid Board not only looked at their cases but that the matter then went to appeal. It is quite wrong for the Government to intervene in that legal process.
Lord Ewing of Kirkford: My Lords, is the Minister aware on this day of all days, when the Chancellor is about to introduce his Budget, that legal aid comes in many different guises? Will the Minister encourage the Legal Aid Board, against the background of the Chancellor's legal aid—£4,000 from the Treasury and a gift of £18,000 from an anonymous donor in order to evict an undesirable tenant—to look even more sympathetically at the cases of those tenants who face compulsory eviction?
The Earl of Caithness: No, my Lords.
Lord Carmichael of Kelvingrove: My Lords, is the Minister aware that this Question is one in which the late Lord Underhill would have taken an interest? It was his area and he was very much involved in the whole of that part of Essex. His death last Friday will have saddened noble Lords in all parts of the House. Reg Underhill—I can say this with experience—was a very good man to work with. He was calm, thorough, highly principled and kind. I am sure his many friends in your Lordships' House will join me in conveying to Lady Underhill and the family our deepest sympathy. Perhaps I may ask a question which he would possibly have wanted to ask. Can the noble Lord explain why there has been so much local opposition to the scheme? It amounts to more than the normal NIMBY opposition. Waltham Forest Council took the issue to the High Court. Does the Minister believe that the Government have had as wide consultation on a personal level with the local people as we would all desire?
The Earl of Caithness: My Lords, I am sure that the whole House would want to be associated with the remarks of the noble Lord, Lord Carmichael, concerning the late Lord Underhill. We shall all miss him.
With regard to the question of objections, that is the benefit of the system that we have in this country. People can object to the scheme. There have been three public inquiries and a court case. However, despite the protestations of some locally, the local council says that there is now great potential for bringing enormous relief to Leytonstone High Road and perhaps pedestrianising part of it. That, I am sure, would be welcomed in the area.
Lord Jay: My Lords, does the Minister really think it right that hundreds of people should be forcibly evicted from their homes, without any chance of rehousing in many cases, just to take six minutes off a car journey? Does that encourage home ownership?
The Earl of Caithness: My Lords, I would say that the reverse is the case. As the noble Lord knows, the environment locally will be substantially improved. There will be benefits in that the existing trunk road, which is congested, will be put in a tunnel at George Green. That has been widely welcomed by the Wanstead conservationists involved in the area. There will be better access to Epping Forest. I would also say that the houses that the Secretary of State owns have
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been leased on a short term basis which has helped the local authority to provide much needed accommodation.

NHS Prescriptions: Contraceptives
2.45 p.m.
Lord Dormand of Easington Lord Dormand of Easington asked Her Majesty's Government:
What estimate they have made of the outcome of their proposal to include the contraceptive pill in the additional categories being considered for inclusion in the extended limited list of drugs which cannot be prescribed on the National Health Service.
Baroness Cumberlege: My Lords, decisions on which oral contraceptives may no longer be available on NHS prescription will be based on advice from an independent advisory committee whose remit is to ensure that drugs to meet all real clinical needs can be provided as economically as possible under the NHS.
Lord Dormand of Easington: My Lords, in spite of that Answer, is the Minister aware that the medical profession as a whole believes that the proposed changes to the limited list will lead to an increase in unwanted pregnancies and that this view is also held by the Birth Control Trust and the Family Planning Association? Is it not true that the NHS uses the cheapest oral contraceptive pill in the European Community? Finally, do not these factors make nonsense of this cost cutting exercise, particularly when a change of pill or method can and very often does lead to ill health on the part of the individuals concerned?
Baroness Cumberlege: My Lords, we are very anxious to involve the medical profession in the decisions that are made. It is represented on the committee that is advising the Government on which brands of medicine—which oral contraceptives in this case—should be used. When the selected list was first introduced in 1985 there were great cries that there would be disastrous repercussions. Those have failed to materialise, and I suspect that this time too these fears are groundless.
Lord Renton: My Lords, is my noble friend aware that it is now 20 years since Parliament placed on the Government an obligation to give family planning advice under the National Health Service and the opportunity to provide services? Bearing in mind the large proportion of unmarried mothers, is it not essential that those opportunities should be fully used?
Baroness Cumberlege: My Lords, there will still be opportunities for family planning services both in clinics and at GPs' surgeries. I very much endorse the views expressed by my noble friend. It is important that we try to prevent unplanned pregnancies. That is why oral contraceptives are one of the very few medicines that are free to all regardless of ability to pay.
Lord Ennals: My Lords, is the Minister aware that while I fully support the proposal of a limited list, I believe that in this case it would be very unwise indeed? Does she not agree that it would be a false economy and entirely unjustified? Is she aware that the money cost of an abortion is probably nearly £300, quite apart from all the other moral aspects of the matter? Does she not agree that there is a danger that if the Government pursue this proposal there will be more unwanted pregnancies and therefore more abortions at a cost in both social and financial terms?
Baroness Cumberlege: My Lords, I do not accept that premise at all. I should like to point out to your Lordships that the purpose of the scheme that is being introduced or indeed expanded is to restrain the rate of growth in the drugs bill. The drugs bill is at its highest level ever and is expected to rise by 14 per cent. again this year. Continued growth at this rate can only be at the expense of other health care. There is no question of oral contraceptives not being available. It is simply that there will be a selected list from which GPs and women can choose.
Lord Bruce of Donington: My Lords, is the noble Baroness aware that any endeavours by the Government, their quangos or at management levels in the NHS to interfere with the clinical judgment of the doctors themselves will be widely resented in the country as a whole?
Baroness Cumberlege: My Lords, we already have a selected list and those allegations are not made. The expert committee, which is independent of government, will involve the medical profession to ensure that there is a range of medications—oral contraceptives in this case—from which a choice can be made.
Lord Desai: My Lords, can the noble Baroness tell us whether, after this change, the Government expect to meet the target set in The Health of the Nation that unwanted pregnancies among under 16 year-olds will be reduced by 50 per cent.? Is she aware that choice will be restricted? Can the noble Baroness tell us the extra saving that will be made, or is expected to be made, by this change?
Baroness Cumberlege: My Lords, it is impossible to estimate what savings are going to be made until the committee has met and decided which medications and oral contraceptives will be on the list. But we do know that the saving which was made when the original list was introduced in 1985 was £75 million, which is a considerable sum of money.
Earl Russell: My Lords, I heard with pleasure the Minister's answer to her noble friend Lord Renton. I am of course aware of the need to control costs. But in considering them, will the Minister undertake to compare the cost of oral contraceptives with that of single parenthood, even though that cost does not fall on the Minister's own department?
Baroness Cumberlege: My Lords, it is not solely contraceptives, or the lack of them, which contribute towards single parenthood.
Lord Monkswell: My Lords, is the Minister aware that at the time when the limited list was introduced there were two other mechanisms which were being discussed which would have improved the health service and also reduced costs? I am referring in particular to the concept of medical audit and of generic prescribing. Is she aware of those two aspects? Does the Minister also understand that it is not just the contraceptive element which is important with the contraceptive pill, but that different women require different formulations of the contraceptive pill to prevent damage to their health? Instead of—
Noble Lords: Order!
Lord Monkswell: —including contraceptive pills in the limited list, will she undertake an exercise of medical audit and generic prescribing to ensure the better provision of health care at reduced costs?
Baroness Cumberlege: My Lords, the principles both of generic prescribing and medical audit are well established in the health service. The Government have made great investment in medical audit and we are beginning to see the fruits of that work coming to the fore now.
Baroness Robson of Kiddington: My Lords, will the Minister assure me that clinical judgment will not be completely removed from the doctor, but that if in his opinion a patient requires an oral contraceptive which is not on the list, he will still be entitled to prescribe it?
Baroness Cumberlege: My Lords, no. There will be an element of clinical judgment —that is essential—as indeed takes place now with the seven categories of drugs which are already on the selected list. Drugs on the selected list will not be prescribable under the NHS but other drugs will be.

Commonhold Legislation
2.53 p.m.
Baroness Jeger Baroness Jeger asked Her Majesty's Government:
When they propose to introduce commonhold legislation.
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, legislation to implement the commonhold proposals will be introduced when parliamentary time allows.
Baroness Jeger: My Lords, I am sure that the noble and learned Lord the Lord Chancellor has read the pretty booklet which his office has distributed to the public. I quote from it:
"commonhold should not be confused with the Government's leasehold enfranchisement scheme, the subject of other legislation at present before Parliament".
How can the noble and learned Lord help regarding the confusion which exists? Many people who are following the Bill which is at present before the House are confused and wonder whether they would be better served by waiting for the commonhold Bill. Can the noble and learned Lord say something more exact about the commonhold Bill? What advice does he give to people who take action under the present Bill but

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who decide in the future that they would have done better under commonhold? Will he please give some free legal advice on this matter?
The Lord Chancellor: My Lords, as your Lordships know, I am very happy to give any advice that I can without any additional charge. Leasehold enfranchisement, which is the subject of the Bill presently before your Lordships, is a scheme to enable long leasehold flat owners to acquire collectively the freehold interest in their blocks of flats. That is the leasehold system and the enfranchisement of it which is presently in question. Commonhold is different. That is a scheme to provide for the separate freehold ownership of units within developments and, at the same time, to provide for the communal management of the development as a whole. To create a commonhold it will be necessary to have control of the freehold of the land concerned; for example, a commonhold can be created in respect of a new block of flats being put up and developed.
In the case of flats where the long-leasehold owners have the right to enfranchise, enfranchisement—if they use it —would give control of the freehold which will then enable them to go on and set up a commonhold, if they so desire. The leasehold enfranchisement is a way of getting ownership of the freehold. The commonhold system is a way of distributing the ownership of that effectively between the flat owners and providing a scheme for the management in the interests of the whole. So there is no question of somebody doing better under commonhold than under enfranchisement. Those two are distinct. In order to get from a leasehold property at present to commonhold, one would need enfranchisement. I believe that the option which the noble Baroness has in mind is not one which requires to be considered. The two are, as it were, in succession, the one to the other.
Lord Williams of Elvel: My Lords, will the noble and learned Lord say whether, after consultation, he still takes the view that there should not be a low-rent test for long leaseholders?
The Lord Chancellor: My Lords, I believe that the noble Lord will understand that there are distinctions of responsibility for the decision of particular questions. I am seeking to explain the relationship between enfranchisement and the commonhold scheme which is the subject matter of this Question. The precise terms on which enfranchisement should be allowed are determined by your Lordships, along with the other place, in the light of the developing debate on the present Bill.
Lord Williams of Elvel: My Lords, is the noble and learned Lord aware of the debates which your Lordships had yesterday on precisely the subject of the low-rent test, and of the unsatisfactory answer which we had from the Minister in the Department of the Environment on that particular question? Given that commonhold can be achieved, as the noble and
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learned Lord said, through leasehold enfranchisement, would it not be right to make sure that leasehold enfranchisement and commonhold for long leaseholders is on the same basis?
The Lord Chancellor: My Lords, the commonhold will come along as a possibility where, as a result of enfranchisement, the leaseholders have control of the freehold. As I have explained, it will come along with a lot of other possibilities as well; for example, in relation to commercial property and new developments. It is not linked only to leasehold enfranchisement. I am aware of course of the debate that took place yesterday. I would not agree in full with the description of it which the noble Lord has given.
Lord Ezra: My Lords, will the noble and learned Lord enlighten us a little further? He will be aware of the debate on the subject of leasehold enfranchisement, and does he agree that there will be a number of long leaseholders who will not qualify? If there were to be a commonhold law, would those same leaseholders be able to qualify for commonhold?
The Lord Chancellor: My Lords, no. I fear that I have failed to explain the difference between the two. Commonhold will apply only where the people in question, seeking to make the commonhold association, have control over the freehold. Therefore, if one has only a leasehold at the moment, unless one is in a position to convert that, with others, into ownership of the freehold, there is no question of the commonhold being of any assistance. Therefore, the only way of getting from leasehold to commonhold is through the mechanisms of enfranchisement unless one can get consent from all the other people interested in the unit concerned.
Lord Renton: My Lords, is my noble and learned friend aware that yesterday my noble friend Lord Strathclyde made it clear that in dealing with the current legislation on leasehold enfranchisement it would be wrong for us to anticipate any legislation on commonhold?
The Lord Chancellor: My Lords, I am sure that that was wise advice because one does not know exactly when the commonhold legislation will come and one does not know exactly what your Lordships might do to it when it does come, so it would be very unwise to anticipate fully the terms of it. However, I hope that it is possible to anticipate that commonhold legislation will in fact come along. I am certainly seeking to do my bit to ensure that that will happen.
Baroness Jeger: My Lords, would it not be helpful to this House and to the public in general if at least the Bill could be published so that we know what it is all about? If there is not the parliamentary time to enforce it, perhaps Parliament's programme could be rearranged to make that possible.
The Lord Chancellor: My Lords, the noble Baroness expresses a wish with which I have considerable sympathy. As far as publishing the Bill is concerned, we published fairly full proposals on

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commonhold some time ago. There is a limit to the number of times that I can publish such rather tedious detail. It is quite a complicated provision. In the meantime, however, I have sought to supplement that by the booklet to which the noble Baroness referred in, I think, appreciative terms.
Lord Tordoff: My Lords, reverting to what the noble Lord, Lord Williams of Elvel, was asking and to the noble and learned Lord's reply to another question, is it not the situation that, as a result of yesterday's decision, certain people will be excluded from moving from the happy position in which they are in at the moment to commonhold?
The Lord Chancellor: My Lords, for a person who has only a leasehold, the route to commonhold is through the conditions of enfranchisement —and those conditions will have to be met whatever they are. No doubt the decision made yesterday will form part of them as the proposals stand at the moment.
Lord Irvine of Lairg: My Lords, since commonhold legislation is the responsibility of the noble and learned Lord's department, could not his department have co-operated with the Department of the Environment so that the undoubtedly related issues of leasehold enfranchisement and commonhold could have been dealt with in a single piece of legislation? Why have the Government moved so slowly on a measure—commonhold—to which they are committed by their manifesto of last year, which has the support of all parties (and almost certainly of the Cross-Benches) and which will require relatively little parliamentary time?
The Lord Chancellor: My Lords, the last part of the noble Lord's question was very welcome as far as I am concerned. I was delighted to hear it. On the first part, it was not for lack of co-operation, but the amount of parliamentary time available for dealing with the present Bill is such that, having regard to the technicalities associated with the commonhold proposals, it was thought right to distinguish between them. Therefore, your Lordships have the pleasure of considering the present proposals without the necessity of applying your minds in the meantime to the detailed technicalities of commonhold.

Business
3.3 p.m.
The Earl of Strathmore and Kinghorne: My Lords, it may be for the convenience of the House to know that the Committee stage of the Trade Union Reform and Employment Rights Bill will be adjourned at about 7.30 p.m. for about one hour and that during this adjournment the Third Reading of the Penalty for Murder Bill and a Motion to approve 14 Scottish rateable values orders will be taken.

Medical Treatment (Advance Directives) Bill [H.L.]
Lord Allen of Abbeydale: My Lords, I beg to introduce a Bill to enable persons to give directions or arrange for them to be given to their physicians regarding the withholding or withdrawal of life-sustaining treatment in a terminal condition, and for connected purposes. I beg to move that this Bill be now read a first time.
Moved, That the Bill be now read a first time.—(Lord Allen of Abbeydale.)
On Question, Bill read a first time, and to be printed.

Trade Union Reform and Employment Rights Bill
3.4 p.m.
The Parliamentary Under-Secretary of State, Department of Employment (Viscount Ullswater): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Viscount Ullswater.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 1 [Election scrutineer to check register]:
Lord McCarthy Lord McCarthy moved Amendment No. 1:
Page 2, line 5, leave out from ("conditions") to end of line 6 and insert ("set out in subsection (3AA) are satisfied;",").
The noble Lord said: It is ironic, if nothing else, that as the Chamber steadily empties we are dealing with this issue at the same time as down the other end of the Palace they are dealing with something infinitely more important. The Government are telling us what their policy is for unemployment and for the exchange rate and what their economic strategy is. The only thing of which we are certain is that the Government know what their industrial relations policy is—it is to introduce Bills like this which restrict trade union autonomy, violate international conventions and narrow workers' rights, which brings me to the amendment.
We are now dealing with Clause 1 of the Bill in which the Government decide to add further responsibilities to those of the scrutineer. The Committee will know that this Bill does not invent the scrutineer. The scrutineer's powers are already set out in Sections 49 and 52 of the new consolidation Acts of 1992. Section 49 provides that the independent scrutineers shall scrutinise the elections and political funds of trade unions. A race of scrutineers, which this Bill further regulates, has emerged. The trade unions have to find independent persons from lists provided, authorised and agreed by the Secretary of State and the Government. The lists come from the Industrial Society, the Electoral Reform Society or Union Security Balloting Services. Those people supervise the elections. They make detailed reports showing the

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votes cast, the ballots spoiled and whether there were any contraventions, interferences or irregularities. If anybody feels that there have been any interventions, contraventions, interferences or irregularities, they can go to the only form of legal aid which is absolutely free and absolutely limitless and on which limitless money is spent—the CROTUM herself. Last year, all this provided 10 cases of assistance none of which—as far as I understand the reports of the CROTUM—actually dealt with this part of the Bill. Nevertheless, the Government tell us (and the clause stipulates) that we need to regulate further for alleged irregularities in trade union elections.
We are now going to allow the scrutineer to inspect the register as he wishes. If members wish to inspect the register, the Government have conceded that, for reasons of confidentiality, trade union registers cannot be passed around but, at the behest of a member or candidate, the scrutineer can inspect the register to see whether it is up to date and correct and whether there is any reason why he should suspect that it is not up to date or correct. That brings me to the amendment, because the face of the Bill states that a member has the right to demand the inspection of the register if he "suspects"—that is the word—that it is not up to date or accurate. No grounds have to be given for that suspicion. If the member suspects, he can invoke the intervention of the scrutineer.
The provisions also demand that the scrutineer must respond unless he has reason to believe that the suspicion of the member or the candidate is, as the face of the Bill states, ill-founded. So any suspicion, unless it can be shown on prima facie grounds by the scrutineer to be ill-founded, must be investigated. We say that that is going rather far. We introduce a modest, mild proposal. The amendment says not suspicion but,
"proof of reasonable ground to suspect".
The scrutineer should be able to say, "Well, are there are grounds for this suspicion?" We say that the suspicion must not just be ill-founded—whatever that means—but that the suspicion may itself be unreasonable. The terms "unreasonable" and "reasonable" are of course standard form in legislation. The Government have said on many occasions that they wish to use such phrases. When the union register of names and addresses was introduced in the Trade Union Act 1984, the Government answered complaints about the amount of work that that would involve by pointing to the fact that the Bill at that time was littered with phrases such as "reasonable notice", "reasonably practicable", and so on. Therefore this is not an unusual, without precedent, modification of the Bill. It is a modest one.
Instead of having unfounded suspicions, the scrutineer should ask for proof of reasonable grounds to suspect, and instead of dismissing the request on the ground of ill-founded suspicions, the scrutineer should be able to say that the suspicion is reasonable or unreasonable.
Lord Rochester: There are a good many amendments that I shall be supporting, but this is not one of them. When on Second Reading I said that a
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case could be made out for some of the proposals in Part 1 of the Bill, I had in mind the first three clauses dealing with ballots for the election of union executives and political funds. On these Benches we were in advance of the Government in advocating reforms obliging trade unions to use secret postal ballots, under independent supervision, in electing members of their principal executive committees.
I welcome the principle underlying Clause 1, and can find no fault with subsection (1) (c) that the noble Lord, Lord McCarthy, seeks to amend. The overriding consideration is that the scrutineer is an independent person who under subsection (1)(a) is authorised to inspect the register whenever he considers it appropriate and independently of any request for him to do so. A safeguard against unreasonable requests for him to make such inspections is already afforded, as the noble Lord has acknowledged, by the proviso in line 20 that he need not do so if he considers the suspicion of a union member to be unfounded.
I cannot think that the intention behind the amendment is to invite litigation. Yet if requests for the scrutineer to inspect the register are made subject to a test of reasonableness—indeed, proof of reasonableness—is that not just what could happen, and thus it would have the opposite effect to that intended? In any case, I cannot see how the test of the reasonableness of a request can be determined except by reference to the register. I wonder also at the inclusion in the second amendment—I believe that we are taking Amendments Nos. 1 to 3 together—of the words,
"so far as reasonably practicable",
because those words are already included in Section 24(1) of the 1992 Act under which trade unions have a statutory duty to secure so far as reasonably practicable that entries in their registers are accurate and up to date.
With respect to the noble Lord, Lord McCarthy, I do not believe that there is need for him to be worried about vexatious requests for the register to be inspected. The Bill already provides sufficient protection to frustrate such requests, should they be made. I hope therefore that he will not press the amendment to a Division, for if he does I shall feel bound to recommend to my noble friends that they vote against it.
3.15 p.m.
Lord Campbell of Alloway: I shall be brief because the noble Lord, Lord Rochester, has said much of which I wish to say. I shall not seek to deal with the introduction to the amendment, which was a reflection of the general attitude of total opposition of the party opposite to any type of reform. I shall deal only with the merits of the amendment.
It is difficult to imagine that if the TUC, or indeed the membership of the unions, had in any way been consulted they would have supported the amendment. If the amendment were carried, it would be a positive disadvantage to the union members and, indeed, I should have thought, with respect, to the general status of the trade union movement. The amendment

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is wholly misconceived, and to try to import proof of reasonable grounds would drag into the arena the sort of Trojan horse which could wreck the general purpose of the clause. I hope that my noble friend will not accept the amendment.
Lord Stoddart of Swindon: I think that my noble friend on the Front Bench needs a bit of support. The amendment is reasonable and mild. If I had been putting down an amendment, which I was tempted to do but did not, it would have been a stronger amendment than the one put down by my noble friend. There are occasions when trade union members, in the same way as other people—Members of this place, for example—can be vexatious. They may well have reasons for wanting to delay a poll. They might, for example, believe that if they could delay a poll by bringing into disrepute the register, they would have a better chance of winning. The candidate himself may well have friends who would wish to disrupt the election for their own purposes. Therefore the amendment is a reasonable one which would deal with that aspect of the matter.
I am worried about the type of legislation that the Government bring forward to curtail the activities of trade unions; to bind them into bureaucratic processes. When I receive from my building society a note of its annual general meeting, I see that it is going to appoint directors. I believe that the case is the same for all shareholders. They receive a notice of the annual meeting, and they are asked to appoint directors. If a person cannot attend a meeting, he relies upon the chairman to cast his vote on that person's behalf—if he wants him to, that is. There is some query.
Lord Tordoff: It may well be that the chairman casts a shareholder's proxy, but it is his proxy.
Lord Stoddart of Swindon: Yes, we have to rely on his honesty, which I am prepared to do in all the cases of which I am aware. I am trying to show the disparity of treatment. As far as I know, as a shareholder in a building society or a public company I am not allowed to approach a scrutineer to ask him to ensure that the share register is up to date. So why on earth are trade unions put in such an odd position? My noble friend has been reasonable in moving the amendment. The least that the Minister and the Government can do is to accept it in order to show their good faith and friendliness towards the trade union movement and its members.
Viscount Ullswater: The Bill is important; it provides for important reforms and important rights. I believe that Amendments Nos. 1 to 3 are unnecessary. They are apparently triggered by worries that the scrutineer will receive numerous unreasonable requests for an inspection of the register and that in acting on them he will place excessive burdens on trade unions. Those worries are unfounded. It is simply not necessary to oblige the scrutineer to test the reasonableness of grounds for a request made to him to inspect or examine the union register. The clause already provides that the scrutineer is under no duty to act on requests that are "ill-founded".
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Moreover the scrutineer's first duty is to inspect or examine the register,
"whenever it seems appropriate to him to do so",
and any other duty that he has to act on the requests of individuals or candidates is subject to this overriding condition.
Perhaps we may reflect on who the scrutineer is. He is an independent individual or organisation who must meet with the stringent requirements laid down in regulations and subject to parliamentary control. He has been given the discretion by the clause to inspect or examine the register when it seems appropriate to him to do so precisely because the very nature of his appointment requires him to be independent from the union. He will not follow up vexatious or spurious requests. The legislation does not need to specify the tests that he will apply before following up a request.
It is also inappropriate to limit the circumstances in which the scrutineer could be asked by a trade union member or a candidate to inspect the membership register to those in which the individual suspected that the membership register was not accurate,
"so far as reasonably practicable".
I understand that there may be anxiety that we are demanding higher standards of union registers in this clause than we do in Section 24 of the 1992 Act, which places unions under an obligation to secure, as far as is reasonably practicable, that the entries in their register are accurate and are kept up to date. We are not doing so. The two provisions are quite separate. New subsection (3a) (a) gives the scrutineer a particular duty to inspect or examine the register if a member or candidate "suspects"—generally a subjective matter—that the register is not accurate and up to date. This is always subject of course to the scrutineer's own judgment of whether it is appropriate to act on these suspicions.
If he does inspect or examine the register on the basis of such a complaint the scrutineer records that fact in his report on the election. He will state whether his investigations have revealed any matters which should be drawn to the attention of the trade union to assist it in maintaining its register.
The scrutineer knows what the legal obligations of trade unions are. To be a scrutineer he has had to comply with the requirements set out in subordinate legislation. A scrutineer will not carry out his investigations against a background of unreasonable or impracticable expectations of a union's membership register.
An inspection by the scrutineer or a comment on his report certainly does not imply that the union is in breach of its statutory duty under Section 24. If a union member believes that the union may be in breach of Section 24, the proper action for him to take is to make a complaint to the certification officer, or the court, who will then, and only then, form a view as to whether the union register is as accurate and up to date as is reasonably practicable.
I hope that that reassures the Committee. Clause 1 provides important new protections for the democratic rights of ordinary trade union members. I am

1341
pleased to note from the tenor of the amendments that have been tabled that there is agreement to that principle throughout the Committee.
Lord McCarthy: We were not surprised to hear that government reply. I understand from what was said by the government speakers and by the noble Lords, Lord Rochester and Lord Campbell of Alloway, that the objection is to the introduction of reasonability. The noble Lord, Lord Rochester, was right in saying that I was moving Amendment No. 1 and speaking to Amendments Nos. 2 and 3.
Amendment No. 2 provides for reasonability on several occasions. Reasonability is littered throughout this area of government legislation. It appears in the 1984 legislation; indeed, we were told then that we should not be anxious about the legislation because of its appearance. We are trying to insert it into this Bill. Although the noble Lord, Lord Rochester, said that he agreed with much of the clause, he believed that the reasonability test might encourage litigation. I do not know what evidence he has or why he believes that reasonability would encourage litigation any more than the terms which appear on the face of the Bill.
The noble Lord, Lord Campbell of Alloway, said that the provision would be bad for the trade unions. They were in favour of something being done about the Bill and about the clause; if they had been consulted, presumably they would not have wanted the provision because it included reasonability—
Lord Campbell of Alloway: In my book the problem is not reasonability but proof of reasonability.
Lord McCarthy: So it is all right to be unreasonable if that cannot be proved. Surely if one wants reasonability as a test one wants that test evaluated and to be used. The test of the test is whether it can be proved one way or the other. I do not find the noble Lord's argument convincing.
The Minister appeared to suggest that we are denying that the Bill is important. We do not deny that; of course it is an important Bill. When we come to deal with Part II we shall be saying that the Bill is very important and we are glad that the Government have included certain provisions. However, we are now talking about Part I. We believe not so much that it will place excessive burdens on trade unions—it may do so—but that it will place considerable burdens on scrutineers. They have considerable functions to perform and their services are not free. The average union of 100,000 members spends about £30,000 on scrutineers in relation to the present regulations and provisions. There can be no doubt that the scrutineers' duties will be considerably advanced as a result of the Bill. We believe that the Government should be reasonable and for that reason we tabled the amendment. However, I do not propose to take the matter to a Division and, therefore, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 2 and 3 not moved.]
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 4:
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Page 2, line 27, after ("day") insert ("before the day").
The noble Lord said: This is a reasonable amendment. Indeed, it is so reasonable that it may attract Members of the Committee on the Liberal Democrat Front Bench. Although the amendment deals with a small matter, it illustrates what my noble friend Lord McCarthy put to the Committee and is important in the context in which we move such amendments; that the Bill must be seen as a further move towards heavy, strict and sometimes absolute obligations on trade unions. Those obligations are not found elsewhere, are enormously costly and will be even more costly when the promise of funds is soon retracted. If one sees the legislation as a whole, they move towards a body of law which has authoritarian tendencies which are recognised by people abroad who look at our statute book perhaps because they have known them better than we have. Indeed, Clauses 37 to 45 extend the criminal law. I hope that the Committee will look carefully at those clauses.
At first blush the point is a small one but it is an illustration of the way in which the Bill is constructed so as to cast the obligations as heavily as possible—and in this case impossibly—upon the trade unions. It concerns the relationship between the scrutineer and what we might call the "awkward squad" at the local branch or region of the union. Every organisation has its awkward squad. Members of the Committee may wish to look around to see whether the awkward squad is present today.
The scrutineer must meet the specifics of the regulations laid down by the Secretary of State. That is the first test. He must be proved to be independent and so on. When he has fulfilled all the requirements, the Bill says that he must make the report as soon as is reasonably practicable—we like that—after the return of all the voting papers. He picks up his pen and is about to finalise his report when suddenly the awkward squad appear and say, "We have some new suspicions which were not there before. They relate to matters which we have put to you". In the other place the Minister spoke of a trade union membership list which had five Donald Ducks on it. I do not know whether the Minister can produce that list. The scrutineer must look at such matters. The day passes. He must complete his report within that period after the ballot but a member can come along at any time between the date on which the candidatures are declared and ending on the day on which the scrutineer makes his report. That is another Mad Hatter structure.
Every time the scrutineer goes to write his report, a new matter appears for investigation. I do not suggest that my tiny amendment is necessarily the final answer to the problem. The amendment says that the scrutineer should be given a day on which to finalise his report, a dies non as it were, in which members cannot come along with new stories except as a different story for a new report. My amendment may or may not provide the best answer but it would allow the scrutineer to do his job whereas, as presently drafted, the Bill does not seem to do that. I believe that this is an example of how the Minister and those working with him, perhaps late at night, had the

1343
objective of making everything as tight as possible but went too far. They have made it impossible. I beg to move.
3.30 p.m.
Lord Campbell of Alloway: I support the amendment. The noble Lord has made out a good case and a fair argument for it. Had he omitted his reference to the Mad Hatter, I should have been able to say that I adopt most of his argument. However, I accept the substance of it. I believe that it is a fair amendment.
Lord Rochester: I too believe, on the basis of what the noble Lord, Lord Wedderburn, said, that this is a reasonable proposal. I hope that the Government may feel able to accept it.
Viscount Ullswater: I am grateful to the noble Lord for his explanation of what this amendment is intended to achieve and for the constructive intentions that clearly lie behind it. Clause 1, as the Committee will be aware, provides that when a union appoints a scrutineeer to oversee an executive election it must require him to inspect the register whenever it seems to him appropriate to do so, and, in particular, at the request of a union member or candidate, provided that the request is made during what is termed the "appropriate period".
This period is defined as the period beginning with the first day on which a person may become a candidate in the election or, if later, the day on which the scrutineer is appointed and ending with the day on which the scrutineer makes his report to the union. The purpose of the provision is to ensure that during an election union members and election candidates can, through the scrutineer, satisfy themselves that the register, which is after all the basis for the election, is maintained in a way that facilitates the democratic conduct of their election. It would clearly be unreasonable for everyone concerned, though, if such requests were to be made long after the election had taken place and even after its result had been announced. It was for that reason that we included in the provision a definition of the appropriate period during which such requests may be made to the scrutineer. The period ends with the submission of the scrutineer's report in which he comments on any requests to inspect the register that he has received.
I sympathise with the concern that has been expressed that this approach raises the possibility that requests to examine the register will be made which will come too late to be included in the scrutineer's report, or that their inclusion might delay submission of the report and the announcement of the election result. Of course, the likelihood in practice of inspection requests coming at this late stage is virtually non-existent. It is right, though, that we should take it into account.
Clause 1 introduces new and important rights for trade union members. It is clear from the spirit of the amendment that these rights are supported by Members of the Committee on the opposite Benches, and I welcome that support. I agree that it is important that trade union members should know
1344
when and how they can assert those rights, and it would be deeply unsatisfactory if the cut-off point for so doing was unclear or could not be recorded in the scrutineer's report.
Therefore, I am happy to give an undertaking to the Committee that I shall reflect on the arguments which have been put to me with a view to providing an appropriate amendment to the Bill at a later stage. In the meantime, I should be grateful if the noble Lord would withdraw his amendment.
Lord Wedderburn of Charlton: I am grateful to the noble Lords, Lord Campbell of Alloway and Lord Rochester, for their support. I am glad to hear what the Minister says. It is not exactly as I should have expressed the matter but I do not suppose that he would have expressed it in the way I did. I am glad to hear that he may bring forward an amendment on Report, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McCarthy Lord McCarthy moved Amendment No. 5:
Page 2, line 30, at end insert:
("(3D) The scrutineer shall not transmit to an employer, or to any other person whom it is reasonable to believe may transmit to an employer, the whole or part of any information provided by the trade union, its officials or members in respect of the election, whether in the register of members, voting papers or otherwise." ").
The noble Lord said: We seem to be making progress and I hope that that can continue. In speaking to this amendment I shall speak also to Amendment No. 7, which is linked with it.
We now turn to the question of the confidentiality of the scrutineer's job. The Bill accepts that the scrutineer must respect the confidentiality of the register. Lines 29 and 30 of the Bill state:
"The duty of confidentiality as respects the register is incorporated in the scrutineer's appointment".
That is a somewhat delphic phrase. However, my amendment goes on to state:
"The scrutineer shall not transmit to an employer, or to any other person whom it is reasonable to believe may transmit to an employer, the whole or part of any information provided by the trade union".
That is what we want to see.
We propose adding to the Bill:
"The scrutineer shall not transmit to an employer",
or to any other person any information which is provided to him by the union. It seems reasonable to ask for the addition to the Bill. It is obvious why we want that. We should not want the scrutineer to allow direct access to the register. The Government have accepted that that is the case. However, the scrutineer will be put in a stronger position if he has a precise prescription of the kind which we should like to see, namely, that:
"The scrutineer shall not transmit to an employer, or to any other person whom it is reasonable to believe may transmit to an employer, the whole or part of any information provided by the trade union",
which arises from his knowledge of the election and the register. That is the substance of Amendment No. 5.
Amendment No. 7 seeks to go further. We argue that subsequently the scrutineer,
"whether he was approached by any employer or other person or body other than the trade union for information falling within"

1345
Section 49(1A), should be able to say,
"what action he took in regard to the matter".
Therefore, in the report of the scrutineer, any attempts to intervene or any attempts to put pressure on the scrutineer would be evident. We believe that this is a useful way of complementing what we take to be the Government's intentions regarding this clause. I beg to move.
Lord Campbell of Alloway: In principle I support Amendment No. 5 although it does seem to me to be too widely drawn. I can see what the noble Lord is getting at and I sympathise with what I think is his main concern, but I do not like the width of it. I am afraid that I am not with the noble Lord on Amendment No. 7 at all and I would need to hear what was said by my noble friend the Minister as to the problems as seen by government before making up my mind.
Lord Rochester: Again I see no need for these amendments. When a similar amendment was debated in Standing Committee in another place the Government undertook to address the matter of confidentiality, which is at the root of this amendment, on Report. That they have done by adding to the Bill new Clause 6 which requires trade unions to impose a duty of confidentiality on the scrutineers whom they appoint. Furthermore, the Government have added to Clause 1 a new subsection (3C) which makes it plain that the,
"duty of confidentiality as respects the register is incorporated in the scrutineer's appointment".
It is true that the Bill does not specifically prescribe that the scrutineer should not transmit information directly or indirectly to an employer but it must surely be presumed that as an independent and responsible person he will not so disregard the duty of confidentiality as to act in this way. By the same token I do not see why the scrutineer should be obliged to state in his report on the election whether he was approached for information falling within Section 49 of the 1992 Act, and if so what he did about it. I hope therefore that in this case too the noble Lord, Lord McCarthy, will not press the amendment to a vote.
Lord Murray of Epping Forest: When I first saw this amendment it seemed to me, as a total layman, to be rather legalistic. As one who is not very well versed in legalisms, I wondered what its purpose could be. But then I reflected on the amendment in the context of the Bill as such and took note of the way in which the Bill seeks to improve the position of employers as compared with members of trade unions, and indeed lays on the relevant authorities the obligation to inform employers of all kinds of things. It was that which led me to depart from the view expressed by the noble Lord, Lord Rochester.
The scrutineer himself, or herself, may well wonder what his purpose, duty, or responsibility is in the situation we are discussing. It may well seem right to the scrutineer that he should, perhaps in response to some request from an employer, inform him that the query has been put forward, what action is being taken and the results of that action. It seems to me that
1346
the amendment is quite innocuous if in fact the intention is that the scrutineer should not inform the employer. For my own purposes I cannot see what objection there can be to spelling out the matter and making it quite clear so that the scrutineer is absolutely clear as regards what is expected of him or of her in this situation.
3.45 p.m.
Viscount Ullswater: I agree with the noble Lord, Lord Rochester, that these amendments are quite simply unnecessary. I also hope to persuade my noble friend Lord Campbell of Alloway of that. Extensive protections already exist to protect the confidentiality of individuals whose names are held on membership registers, particularly when that information is computerised. In addition, and to make the duty of confidentiality in respect of union registers quite clear, Clause 6 was added to the Bill at Report stage in another place. That clause aims to ensure that disclosure is not made to any inappropriate person. There is no reason to qualify this yet further to specifically identify employers. The duty of confidentiality does not permit disclosure to an employer. After all let us not forget who the scrutineer is. He is independent. He is either an authorised body or a reputable professional. Experience shows that such individuals or organisations will not abuse the position of trust to which they are appointed.
In any case there is nothing to stop the union including in the terms on which it appoints the scrutineer an obligation which prevents him disclosing information to particular parties, or an obligation to make it known if he is approached with a view to such disclosure. Crucially, though, if an employer were to approach the scrutineer for information, the scrutineer would be obliged to refuse because of his duty of confidentiality owed to the union.
I should emphasise, moreover, that provisions in Clause 1 dealing with the scrutineer's report on an election (new Section 52(2a) inserted by Clause 1(2)) specifically state that the scrutineer's report shall not state the name of any union member or election candidate who has requested that an inspection or examination of the union's membership register be undertaken by the scrutineer. Nothing in the terms of the appointment of the independent scrutineer will be able to override this important protection of individual confidentiality. These amendments are inappropriate and unnecessary. I urge the noble Lord to withdraw them.
Lord Wedderburn of Charlton: I hope that I may ask the Minister a question before he sits down. He touched on two matters. The first concerned whether the Government intend to make any explicit statement on the matter that I believe he referred to inferentially; namely, the data protection principles and their relationship to Clause 6. Do they intend to do that before we part with the Bill? Secondly, the Minister referred to page 3 of the Bill which states that the scrutineer:
"shall not state the name of any member or candidate who has requested such an inspection".

1347
Why does not the Bill simply state that the scrutineer shall not state the name of any member or candidate outside his specific functions?
Viscount Ullswater: I believe that when the scrutineer is appointed, and if the register is computerised, he is effectively bound by the data protection legislation. If he does not constitute a registered body at that particular moment—of course, many scrutineers will be registered bodies—he will need to become so to operate on that basis. That, of course, will provide the confidentiality that the noble Lord seeks, or certainly the confidentiality that is imposed by the data protection legislation. I believe that we are just talking about the purity of drafting. I believe that the words as printed in the Bill are the correct words to protect the confidentiality of a member or candidate.
Lord Campbell of Alloway: My noble friend said that the union, when giving evidence to the scrutineer, could make some form of special contract that such information it gave should be treated in a certain way as regards confidentiality either under the terms of Amendment No. 5 or Amendment No. 7. In looking at the Bill I must ask my noble friend with the greatest respect whether that is really so. Could the union impose any type of terms? Is not the obligation of the union to provide information set out on the face of the Bill? Am I mistaken about that?
Viscount Ullswater: In my remarks I drew attention to Section 49(1) (b) of the consolidated Act which sets out the terms of appointment of the independent scrutineer. It is under those terms of appointment that the union can exercise the power to which my noble friend referred.
Lord McCarthy: It is probably our fault that we have not explained to the Government how strongly we feel about the amendment and the clause. The Bill adds considerably to the regulation—to use a neutral term—of trade union government, not only in Clause 1 but in many other clauses in Part I of the Bill. As my noble friend Lord Wedderburn said, many penalties have been set alongside the additional responsibilities. Some of those penalties are criminal penalties.
The Government have come very far with us on this particular issue. They now understand that it would be very disadvantageous for all concerned if the union register was freely available to all-comers—to employers, members, organisations and all kinds of people—and accepted the need for confidentiality in the register. That confidentiality should not only exist but it should be seen to exist by the unions.
There is a real anxiety that the scrutineers and certification officers who have been created by successive pieces of legislation to regulate trade unions are being transformed by the legislation into watchdogs of trade unions. There is a fear that their independence and freedom from pressure will not be as obvious as it was previously. Therefore, we say that since the Government go so far with us on this issue and recognise that there is a problem of confidentiality, they should accept that that confidentiality should be seen to be respected.
1348
That is all the two amendments propose. The Government do not say that the scrutineer should transmit information to an employer or any other person; they say that he should not. They even say that that is already set out in the Bill. The Minister said that if that is not the case, perhaps the union could reach agreement with the scrutineer on that point. However, the noble Lord, Lord Campbell of Alloway, was not certain about that.
With our second amendment, if the scrutineer does not transmit information which the Government do not want him to transmit, that confidentiality will be seen to exist and union members will know that if anybody approaches the scrutineer the scrutineer will not only repulse them but will inform the union in his report that he has done so. We are trying to create trust and support for an aspect of the Bill on which we believe the Government have seen our point. For that reason, I do not believe that we can withdraw the amendment.
Lord Campbell of Alloway: Having listened to the arguments, it seems to me that there is a difficulty. I do not believe that we have the right answer. I believe that the clause is too widely drawn—
The Deputy Chairman of Committees (Lord Murton of Lindisfarne): With all due respect to the noble Lord, the Question has been put by the noble Lord, Lord McCarthy, that the amendment should not be withdrawn. Therefore I shall put the Question.
3.54 p.m.
On Question, Whether the said amendment (No. 5) shall be agreed to?
Their Lordships divided: Contents, 67; Not-Contents, 169.

Division No. 1

CONTENTS

Archer of Sandwell, L.

Llewelyn-Davies of Hastoe, B

Blease, L.

Lockwood, B.

Boston of Faversham, L.

Lovell-Davis, L.

Bottomley, L.

McCarthy, L.

Bruce of Donington, L.

McIntosh of Haringey, L.

Campbell of Eskan, L.

Mallalieu, B.

Carmichael of Kelvingrove, L.

Mason of Barnsley, L.

Carter, L.

Merlyn-Rees, L.

Cledwyn of Penrhos, L.

Milner of Leeds, L.

David, B.

Molloy, L.

Dean of Beswick, L.

Morris of Castle Morris, L.

Desai, L.

Morris of Kenwood, L.

Dormand of Easington, L.

Mulley, L.

Ewing of Kirkford, L.

Murray of Epping Forest, L.

Falkender, B.

Nicol, B.

Fisher of Rednal, B.

Parry, L.

Fitt, L.

Peston, L.

Gallacher, L. [Teller.]

Pitt of Hampstead, L.

Galpern, L.

Prys-Davies, L.

Graham of Edmonton, L. [Teller.]

Rea, L.

Richard, L.

Gregson, L.

Sainsbury, L.

Hollis of Heigham, B.

Sefton of Garston, L.

Irvine of Lairg, L.

Serota, B.

Jay, L.

Shackleton, L.

Jay of Paddington, B.

Stallard, L.

Jeger, B.

Stoddart of Swindon, L.

Jenkins of Putney, L.

Strabolgi, L.

Judd, L.

Taylor of Blackburn, L.

Kilbracken, L.

Taylor of Gryfe, L.

Kirkhill, L.

Turner of Camden, B

1349

Varley, L.

White, B.

Wallace of Coslany, L.

Williams of Elvel, L.

Wedderburn of Charlton, L.

Williams of Mostyn, L.

NOT-CONTENTS

Acton, L.

Hesketh, L. [Teller.]

Addington, L.

Holderness, L.

Addison, V.

Holme of Cheltenham, L.

Alport, L.

HolmPatrick, L.

Annaly, L.

Hooper, B.

Archer of Weston-Super-Mare, L

Hooson, L.

Howe, E.

Ardwick, L.

Hylton-Foster, B.

Arran, E.

Jenkins of Hillhead, L.

Astor, V.

Johnston of Rockport, L.

Astor of Hever, L.

Kinloss, Ly.

Aylestone, L.

Kinnaird, L.

Beaumont of Whitley, L.

Kintore, E.

Bellwin, L.

Knollys, V.

Bessborough, E.

Layton, L.

Blatch, B.

Long, V.

Borthwick, L.

Lucas of Chilworth, L.

Boyd-Carpenter, L.

Lyell, L.

Brabazon of Tara, L.

Mackay of Ardbrecknish, L

Braine of Wheatley, L.

Mackay of Clashfern, L. [(Lord Chancellor.]

Brookeborough, V.

Brougham and Vaux, L.

McNair, L.

Butterworth, L.

Manchester, D.

Cadman, L.

Mancroft, L.

Caithness, E.

Marlesford, L.

Campbell of Alloway, L.

Marsh, L.

Carnegy of Lour, B.

Melville, V.

Carnock, L.

Merrivale, L.

Chalker of Wallasey, B.

Mersey, V.

Charteris of Amisfield, L.

Middleton, L.

Chelmer, L.

Milverton, L.

Clanwilliam, E.

Monk Bretton, L.

Clark of Kempston, L

Monteagle of Brandon, L.

Constantine of Stanmore, L.

Morris, L.

Cox, B.

Mottistone, L.

Cranborne, V.

Mowbray and Stourton, L.

Crathorne, L.

Munster, E.

Crickhowell, L.

Murton of Lindisfarne, L.

Cullen of Ashbourne, L.

Nelson, E.

Cumberlege, B.

Nelson of Stafford, L.

Davidson, V.

O'Cathain, B.

Denton of Wakefield, B.

Onslow, E.

Donaldson of Kingsbridge, L.

Oppenheim-Barnes, B.

Effingham, E.

Orkney, E.

Elibank, L.

Orr-Ewing, L.

Ellenborough, L.

Oxfuird, V.

Elles, B.

Park of Monmouth, B.

Elliot of Harwood, B.

Pender, L.

Elliott of Morpeth, L.

Peyton of Yeovil, L.

Erne, E.

Plumb, L.

Ferrers, E.

Pym, L.

Finsberg, L.

Quinton, L.

Flather, B.

Rankeillour, L.

Forbes, L.

Reay, L.

Fraser of Carmyllie, L.

Rees, L.

Fraser of Kilmorack, L.

Renfrew of Kaimsthorn, L.

Gainford, L.

Renton, L.

Geddes, L.

Ritchie of Dundee, L.

Gilmour of Craigmillar, L.

Robson of Kiddington, B.

Gisborough, L.

Rochester, L.

Gladwyn, L.

Rodger of Earlsferry, L.

Goschen, V.

Romney, E.

Grey, E.

Russell, E.

Gridley, L.

Salisbury, M.

Haig, E.

Saltoun of Abernethy, Ly.

Hailsham of Saint Marylebone, L

Seccombe, B.

Selborne, E.

Hampton, L.

Selkirk, E.

Hanworth, V.

Sharples, B.

Harding of Petherton, L.

Shuttleworth, L.

Harmar-Nicholls, L.

Simon of Glaisdale, L.

Harris of Greenwich, L.

Stewartby, L.

Harvey of Prestbury, L.

Stockton, E.

Hayhoe, L.

Strange, B.

Henley, L.

Strathcarron, L.

1350

Strathclyde, L.

Ullswater, V.

Strathmore and Kinghorne, E. [Teller.]

Vaux of Harrowden, L.

Vivian, L.

Sudeley, L.

Wade of Chorlton, L.

Swinfen, L.

Walton of Detchant, L.

Tebbit, L.

Westbury, L.

Terrington, L.

Whaddon, L.

Thomas of Gwydir, L.

Wharton, B.

Thurlow, L.

Whitelaw, V.

Tordoff, L.

Winchilsea and Nottingham, E

Trumpington, B.

Wise, L.

Resolved in the negative, and amendment disagreed to accordingly.
4.3 p.m.
[Amendments Nos. 6 and 7 not moved.]
Clause 1 agreed to.
Clause 2 [Counting of election votes etc. by independent person]:
Baroness Turner of Camden Baroness Turner of Camden moved Amendment No. 8:
Page 4, line 7, after ("shall") insert ("use its best endeavours to").
The noble Baroness said: Clause 2 relates to the requirement that an independent person or independent scrutineer shall be appointed to carry out counting of election votes. However, subsection (6) later states that,
"The trade union … shall ensure that nothing in the terms of an appointment under this section is such as to make it reasonable for any person to call into question the independence of the person".
Next it is stipulated that the trade union shall ensure that a person appointed under this section carries out the functions reasonably and satisfactorily. The point of the amendment is to insert that the union should "use its best endeavours to". As the clause now stands, an absolute duty is imposed on the union in situations in which it may not have absolute control.
Often in these situations unions will appoint an independent person or an organisation such as the Industrial Society or the Electoral Reform Society, or one of the organisations which have been appointed in recent years to do such work. It seems to be somewhat of a growth industry. Those organisations will handle the ballot on behalf of the union. No doubt the union will do its best to ensure that the person or organisation appointed is bona fide and qualified to do the job. It would scarcely be in the interests of the union to do otherwise.
However, in so doing, absolute control passes away from the union. If that is so it seems wrong to impose an absolute duty in the terms of the Bill. That is why we have proposed the wording in this clause and in two other clauses. The amendment has been grouped with Amendment No. 9, and Amendments Nos. 10 and 12, which deal with another aspect of the Bill. That is why we propose incorporating the wording that the union should "use its best endeavours to." Of course, it will be in the union's interest to ensure that the work is carried out as effectively, fairly and efficiently as possible. If things go wrong, the union itself may not be in a position to prevent that happening. Independent scrutineering or independent counting means what it says. It is not possible to take away from the union the job of scrutineering in the belief that it will be fairer and more independent to

1351
have the job done by someone else and at the same time to impose an absolute duty on the union to ensure that all goes well. The union has lost absolute control and therefore should not have the absolute responsibility envisaged in these clauses.
This is a modest and reasonable amendment. I look forward to hearing from the Minister that he will look favourably upon it. I beg to move.
Lord Marsh: I do not believe that anyone can take exception to what the noble Baroness seeks to achieve. However, the position is covered by the wording in the Bill. Whatever the organisation chosen by the trade union—I well understand that it may be a number of different people or organisations —the obligation on the union is not that that organisation shall act correctly but that nothing in the terms upon which that organisation was appointed gives it justification for behaving in that way. I ask the Minister whether or not I have that wrong. If the position is as I believe, I would be against the amendment because I do not believe that it is necessary. It seems to me that the union is protected in so far as it has only to ensure that it has not authorised misbehaviour on the part of the person or organisation which it appoints.
Lord Campbell of Alloway: With respect, I take exactly the same view as the noble Lord, Lord Marsh. I shall be corrected if I am wrong. The clause did not appear to attract any attention in another place. I believe that it is a concern which, with the greatest respect, is misconceived. I believe that the noble Lord, Lord Marsh, is right.
Lord Wedderburn of Charlton: Although I do not believe that they are different from the amendments to which my noble friend spoke, perhaps I may speak to Amendments Nos. 10 and 12. It has been suggested that they are grouped with the amendments. They perhaps illustrate the point in a different way and give some counter argument to what the noble Lord, Lord Marsh, said.
Amendment No. 9 refers to page 4 of the Bill. Subsection (6) (b) provides that,
"the trade union shall ensure that…[the scrutineer] duly carries out his functions and that there is no interference with his carrying out of those functions which would make it reasonable for any person to call into question the independence of the person appointed in relation to the union".
That is clearly a strict duty—I prefer to use "strict" as opposed to "absolute", but it is near to absolute—that the union must ensure, see to it, that the scrutineer duly carries out his functions.
It is no good the union coming along and saying, "Deary me, it wasn't our fault that he didn't carry out his functions" because the union must "ensure". We do not find that in other legislation. If the Minister would like to show me a parallel on analogous provision in some other legislation concerning the law of corporate or unincorporated associations I should be interested. This is an extravagant provision.
Nor is it an answer—and this was discussed in the other place—to say that the clause goes on to say that the test for the functions being carried out is whether it be reasonable for someone to say that he is not independent. That is to do with the result. What we
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question is the duty. You can have a result that is determined and defined by relation to what is reasonable or, as here, what is reasonable in the eye of an objective observer. But the duty is another matter. At what level of duty are you asked to bring about that result? Here it is strict. We say that it should have added to it in this amendment "so far as reasonably practicable".
If the union cannot do any more than what is reasonably practicable—and the courts interpret that phrase every day in other contexts—why on earth should they be made liable, as the Bill makes them liable? On page 4 the Committee will see:
"The trade union—
(a) shall ensure that nothing in the terms of an appointment under this section is such as to make it reasonable for any person to call into question the independence of the person".
That is the point raised by the noble Lord, Lord Marsh, which we are not questioning. Of course the terms of appointment must make it clear that there is independence. Then it goes on:
"(b) shall ensure that a person appointed under this section duly carries out his functions and that there is no interference with his carrying out of those functions which would make it reasonable for any person",
and the same words follow.
Why this is such an important point—and the Minister and I know it very well—is that if the Government make an amendment to any of these strict duties, there are many other places in the Bill where it will be questioned. This is a Bill that puts upon a voluntary organisation absolute duties to produce results which it cannot possibly produce in some circumstances, especially the circumstances of life at the workplace. This is central to the Bill. Surely the Government will not go to such extravagant lengths in their quest for liabilities of trade unions that they impose absolute duties—and later we come even to criminal liabilities—upon trade unions. This is totally unique and a special part of their step-by-step legislation.
If they intend it, let them oppose the amendment. There is no doubt whatever about this amendment, especially if we take page 7. Page 7 is the example. If the Government will not retract on that, then we shall have absolute duties on the unions, and no doubt we shall be reported again to the International Labour Organisation. No doubt yet again the committee of experts and the Freedom of Association Committee will condemn the United Kingdom—as they have done regularly now—alongside very few other culprits and none of them from Europe, in terms of freedom of association. I support my noble friend in moving this amendment and in the group of amendments taken with it.
Lord Murray of Epping Forest: Perhaps I may add a brief point. I have some sympathy with the point made by the noble Lord, Lord Marsh, on Amendment No. 8. I share with him the view that the union should not be enabled in any way, or given the opportunity in any way, to interfere with the appointment, or to fix the appointment, or what have you. That should be absolutely clear. I do, however, draw a sharp

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distinction between that and the next amendment as regards the carrying out of the functions. It is that point that I wish to emphasise.
Telling the union that it must police the person who is appointed, that it must stick around and make sure that nothing happens to interfere with his activities so that nobody can get at him or anything of that nature, surely is counterproductive. That is inviting the union to have a presence in the activities of the appointee; to have some responsibility for what he or she does; to have a view about what is going on. I am sure that is not the intention of the clause, but it comes near to inviting the union to police the activity whereas it should be keeping the union as far as possible away from the activity. That seems to be an additional reason for adopting Amendment No. 9 and the ones to which my noble friend Lord Wedderburn referred.
4.15 p.m.
Lord Rochester: I, too, have seen the force of the argument offered by the noble Lord, Lord Marsh, and having that in mind would not wish to support Amendment No. 8. But, like the noble Lord, Lord Murray of Epping Forest, I wonder if, in the case of the subsequent amendments—and I think particularly of Amendment No. 9 and the amendment to be moved by the noble Lord, Lord Wedderburn, Amendment No. l2—whether the Government might give further thought to this in the light of the arguments that they have advanced.
Viscount Ullswater: I believe these amendments to be unnecessary, and if implemented they would result in an inconsistency with existing comparable legislation. I shall come to that in a minute. As the Committee will be aware, we are talking about the appointment of an independent person and his duties. The independent person must satisfy certain criteria relating to independence and competence. However, this "test" need not be applied if the scrutineer is appointed to be the independent person. The reason is that the scrutineer himself is already required to comply with strict criteria. The roles of the two figures are in many ways comparable.
The noble Lord, Lord Wedderburn, asked me where the law put these, what I think he would describe as draconian, duties on any individual. I would have to ask him to refer to Section 49 of the Trade Union and Labour Relations (Consolidation) Act 1992. There he will find in Section 49 of the 1992 Act where the duties of the scrutineer are defined, and obligations placed on the union to ensure that the independence of the scrutineer cannot be called into question. Those obligations are analogous with those in this clause, and they are not qualified by any test of practicability or such like. I should perhaps draw the attention of the Committee to subsections 49(4), (6) and (7). Why should this clause be any different? Surely it is as important that the union be equally vigilant so far as concerns the appointment of the independent person. He will, after all, be the person storing and distributing ballot papers and counting votes; hardly unimportant aspects of an election.
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Amendment No. 12, which is grouped with this amendment by the noble Baroness, would similarly modify provisions in new Section 100A of the 1992 Act, as inserted by Clause 4. These provisions require the trade union to ensure that the scrutineer carries out his functions without interference which would make it reasonable for anyone to call his independence into question. The amendment would modify this duty, and require the union only to "use its best endeavours" to ensure that the scrutineer can carry out his functions without interference which might cause his independence to be questioned.
These provisions, as currently worded, are necessary to guarantee the independence of the scrutineer appointed to oversee the merger ballot which, as I am sure we are all agreed, is of fundamental importance to individual union members. I have not been persuaded by the arguments put forward by the noble Lords opposite that it would be right to dilute and obscure the union's duty in the way the amendment would, I fear, achieve. I therefore ask the noble Baroness to withdraw the amendment.
Lord Wedderburn of Charlton: May I put one question before the noble Viscount sits down? I have seen the provisions of Section 49. Most of it requires the union to ensure the independence of the scrutineer. That is indeed a strict duty. However, I acknowledge that it is true that subsection (6) goes further and requires the union to ensure that there shall be no interference. What made me forget the subsection is that I remember objecting to it, with my noble friends, in the debate when it was introduced.
Will the noble Viscount at least accept that these are cost-oriented days, not least for the trade unions? In terms of cost, in terms of insurance against liability, if we add up the number of occasions on which the Bill says that the union "shall ensure", it is a long list. Does the noble Viscount agree that a different premium will be quoted in terms of the risk of liability against the backdrop of a clause which says that the union "shall ensure" a certain result as against a provision that the union "shall use its best endeavours" to produce a certain result? It is highly likely that the insurance cost will be greatly increased. Does the noble Viscount agree?
Viscount Ullswater: I believe that that is a long way from the terms that we are discussing today. What we are discussing today, as I think I was able to demonstrate to the noble Lord, is that we wish to form consistency in the legislation. That is why the words in new subsection (6) in Clause 2 are printed in the Bill. I have been able to demonstrate to the Committee that there are similar and consistent words in the existing legislation. Therefore I believe it would be right for the noble Baroness to withdraw the amendment.
Lord Marsh: Before the noble Viscount sits down, I apologise to the Committee for speaking again, and the desire to ensure that legislation is consistent is wholly praiseworthy, but it is not necessarily an answer to the argument. I was of the opinion, in speaking earlier on, when I tried to get clarification of where we stand, that the union's responsibility, taking

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the words of the first amendment, was confined purely to ensuring that the terms of the appointment did not authorise what would be seen as wrongdoing. Is the Minister now saying that the union is responsible for the wrongdoing of such a person, even if it is outside the appointment?
On the question with which the Minister dealt on Amendment No. 12, can he tell me what action the union could take if such a person behaves in a way of which the union does not approve and may not even know of until some time after the wrongdoing has occurred?
Viscount Ullswater: The important point is to make certain that the independent person is independent. I believe that we all agree on that. It is an important duty that he is being asked to carry out —to count, store and distribute the voting papers. In many instances that will be done by the scrutineer himself, but he may also appoint an independent person. We see no reason why the test should be any less on the independent person than on the scrutineer. Independence is a heavy test which needs to be applied by the independent person because these are important matters that we are discussing.
The noble Lord, Lord Marsh, asked about the effect of Amendment No. 12 if it was suspected that something was amiss. The right reply would be that he should make known his concerns to the certification officer.
Lord McCarthy: The central point made by my noble friend Lord Wedderburn is not whether one can find similar extreme forms of liability and duty in legislation about trade unions in the consolidation Acts but whether one can find it anywhere else. We argue that those degrees of responsibility will not be found in legislation in other areas.
Lord Stoddart of Swindon: The noble Viscount has not answered the point which was raised by my noble friend Lord Murray, and I am still anxious about it. Clause 2, new subsection (6) (b) says that the trade union:
"shall ensure that a person appointed under this section duly carries out his functions and that there is no interference with his carrying out of those functions which would make it reasonable for any person to call into question the independence of the person appointed in relation to the union".
In the first place, I believe that the trade union might find it extremely difficult to carry that out. But, as my noble friend pointed out, it may well be that if the trade union attempted to carry it out it could then be accused of interfering in the duties of the independent scrutineer. I do not believe that the noble Viscount dealt with that important point. I should be obliged if he would do so.
Viscount Ullswater: I believe that I have dealt with it. I indicated that the independent person exists to protect the interests of the trade union members. These are very important matters—the counting of votes, the distribution of ballot papers, to ensure the independence of that person and perhaps to prescribe
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how the trade union should appoint him. After all, it is a matter of the relationship between the trade union and its members.
What we are trying to secure by this simple subsection in the Bill is to make certain that that independent person has the same duties imposed on him as the scrutineer.
Lord Stoddart of Swindon: I am afraid that that still does not satisfy me. The noble Viscount has still not dealt with the point that if a trade union seeks to do what the subsection lays down, it could very well be accused of interfering in the operation of the ballot. For example, the trade union might take a completely different view as to the fairness or otherwise of something that the scrutineer is carrying out, although it may well feel that it has a duty under the Bill to see that the scrutineer carries out that action. The trade union could then be accused of interfering in the independence of the independent scrutineer. That is what we are trying to get at, and I am afraid that the noble Viscount has not explained it to my satisfaction. He has certainly not satisfied me that this could not create a difficulty in the future.
Baroness Turner of Camden: We have had quite a detailed discussion on the amendments and I must say that, as concerns Amendment No. 8, there is something to be said for what the noble Lord, Lord Marsh, stated. However, there is nothing at all to be said against our Amendment No. 9. Unless the Bill is amended in the way we propose, the absolute and strict duty is laid upon the union to ensure certain matters, even though the union has no control over the organisation appointed because the work is being done elsewhere, perhaps in the offices of the organisation appointed. The union has no control over the organisation while it is doing that work. As my noble friends have pointed out, if the trade union were to attempt to have any influence over the organisation, it could well damage the appearance of independence in the eyes of its members.
I am quite dissatisfied with the Minister's response on Amendment No. 9. I do not intend to press it this afternoon, but I should like to look carefully at the points raised in the debate with a view perhaps to coming back at Report stage because the point is quite important. In the meantime, I do not wish to press the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 9 and 10 not moved.]
Clause 2 agreed to.
Clause 3 agreed to.
Schedule 1 [Political fund ballots]:
4.30 p.m.
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 11:
Page 61, line 24, at end insert:
("(ab) to collect any information obtained by or reported to him concerning interference or constraint in the conduct of the ballot or with the exercise by the members of their rights in respect of the ballot by any person or body;" ").
The noble Lord said: This point has been discussed, but as it concerns the arrangement of ballots for

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political funds, I should like to draw attention to it and to hear what the Minister has to say. Many provisions in Schedule 1 are similar to those that have been previously discussed. However, one matter that has not been fully clarified is raised in the amendment. It concerns the appointment of the independent scrutineer and what the union and the scrutineer must do. It would add an obligation to collect any information that is obtained by or reported to the scrutineer that concerns interference or constraint in the conduct of the ballot or of the exercise by members of their rights in relation to the ballot by any person or body.
The amendment is in keeping with a tradition that I hope the Government do not wish to jettison; namely, the strong urge in the law since the 1913 Act to ensure that political fund ballots are conducted properly and that a union is protected when it has a political fund. It concerns interference or constraint by any person. That point should be put on the table because the Minister has to deal with it. The Bill speaks sometimes of interference by the union, as does the consolidation Act, and sometimes of interference where it appears to be by the union. We ask the Government to accept that the ban on interference or constraint in political fund ballots and other funds should apply not merely to the union but also to the employer or to any other person or body.
The employment relationship is not a cool, neutral, test-tube relationship. Many millions of people are very happy in their work and in their relationships with managers and employers. However, there are many situations in which an individual employee or a small group of employees feels pressurised and therefore needs protection. Almost every labour law system in Europe puts protection of the weaker party as its core. The amendment is in the same vein but only to the extent that people should have the right, which the Government have espoused in legislation on ballots, to vote freely without interference or constraint; and that must include constraint by any person or body.
Further elaboration, or litigation, may be required. I understand the condemnation of sloppy legislation, but I have never known litigation to be used as an objection to enacting a clause. I take that view not because I am a lawyer but because there is almost no way in which a clause can be devised and defined to exclude the jurisdiction of the courts so that there can be no litigation. The matter may need further thought, but the principle is clear. Do the Government accept that interference or constraint by any person is to be kept out in the political fund ballot? I beg to move.
Viscount Ullswater: I hope to explain why the amendment is unnecessary so that the noble Lord will feel content to withdraw it. I realise that the amendment arises from a concern that provisions should be seen to be fair and consistent. However, it is entirely unnecessary. Section 75(1) of the 1992 Act includes in paragraph (b) the provision that the scrutineer shall carry out such additional functions in relation to the ballot as may be specified in his appointment. Therefore, there is nothing to prevent
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the trade union from specifying in the terms of the appointment that it would like the scrutineer to report on interference by parties other than those connected with the union. There would be no point in the law requiring the scrutineer to collect information on interference by any person or body since it is only interference by those connected with the trade union which may be the subject of a complaint by a union member.
That is the situation as it exists, and I hope that I have been able to persuade the noble Lord that he should withdraw the amendment.
Lord Wedderburn of Charlton: I should like to thank the Minister for his reply. I refrain from commenting because the next set of amendments goes into the matter more deeply. I shall return to the subject. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 1 agreed to.
Clause 4 [Ballots for union amalgamations and transfers of engagements]:
[Amendment No. 12 not moved.]
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 13:
Page 8, line 4, after ("constraint") insert ("whether effected by a trade union, an employer or any other person acting by themselves or by their employees or agents").
The noble Lord said: The grouping of the amendments has been difficult, but logically we come to the issue arising on page 8 of the Bill as to whether interference and constraint should include interference and constraint by any person. That is what the Minister appeared to be suggesting, although he did not say so. He stated that the Bill included only interference by the trade union, its employees and other officials. That is exactly what we object to; that the Bill should mention interference with elections and ballots and ban interference by the trade unions. That position is totally contrary to our amendment.
The point made by the Minister in relation to the last amendment is relevant here. The trade union could always say to the scrutineer, "As part of your terms of employment you had better look out and tell us if there is any interference". That is fine, but why should the matter be left to the terms of the trade union's appointment of the scrutineer? If it is done in that way, then there is no obligation on the employer not to interfere. It is the interference by the employer in some employment relationships that can be seen by those who are concerned with the situation on the ground. Therefore, to state that the trade union can put the matter in the terms of the appointment is no answer. I stress that it does not mean that the employer is under any legal duty to avoid interference other than in regard to acts that are unlawful.
Whether the constraint or interference is effected by a union, employer or other person acting by themselves, or their employees or agents, the amendment has as its secret force Amendments Nos. 272 and 273. To put it shortly, those amendments attempt to give to the union a right of action through the court by analogy to other procedures under the

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consolidation Act. Where the employer or some other person has been guilty of interference in the ballot, the union can go to the court and get an order.
Some of my friends say that it is dangerous to mention other foreign systems of labour law. People get the wrong impression. They get the impression that one wants to import that system into England. We all know that that is very silly. But one can get the feeling of certain standards if there happens to be a general level of obligation on certain matters. The Government know that very well. In the Green Paper on the issue of collective agreements which they have now withdrawn, on page 39 they refer to no less than six foreign systems. The discussion is very interesting. Perhaps it led them not to legislate upon the matter. I shall refer to only four or five of the best known labour law systems which are attractive to one kind of mind or another; and they are very different. In Germany, for example, the individual and the collective freedom of association provisions operate under a constitutional understanding and interpretation that there is a protection against interference for the worker in functions such as these. In Sweden, it is partly constitutional and comes partly under the Act of 1976. In Italy, any interference, especially by an employer, against trade union activity and the like is unlawful under the workers' statute of 1970. Even more interesting, since 1969 the United States Supreme Court has interpreted the legislation in such a way as to give rise to what is called the free speech limitations of the employer. There is a constitutional right to free speech, but limitations are imposed of a reasonable kind. One of them, as in the leading case in that year, is to tell the employer that he has acted unlawfully if, during the course of an election for the union to represent workers, he goes around saying, "If we have this sort of union, the plant will have to close".
I do not suggest that we import anything as strong as that. But the problem of limiting the employer's activity beyond the normal rules of law in a workshop situation when workers and employees are possibly bereft of any other protection if they are not unionised, is well known to all modern systems and certainly all democratic modern systems of labour law, except ours.
The amendment says that in just this little area, in this tiny place relating to ballots, perhaps we could make a start. We could say that if it is demanded that all the ballots take place, that is fine. But can we make sure that the employees will not be interfered with or constrained—not merely by the union, as the law already has it (as the Minister rightly says)—but also by the employer, or indeed by any other third party. I beg to move.
4.45 p.m.
Viscount Ullswater: I have listened with interest to what the noble Lord, Lord Wedderburn, has said in introducing this group of amendments. I am forced to conclude, however, that the case that he has made out may be based on various misunderstandings. In any case, there are strong arguments for not seeking to
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disturb the present rules, which govern mergers of both unions and of employers' associations, in the way which these amendments would do.
It is the free choice of a union, or an employers' association, to decide whether to proceed with a merger ballot. If so, however, the ballot must be conducted—by the union, or the employers' association—so as to satisfy the statutory requirements. Those requirements are designed to ensure that the vote is given to all those who should have one—that they can vote freely, as they wish.
For many years, the rules governing union and employer association mergers have required ballots to be held. By virtue of provisions in Section 1(2) (b) of the 1964 Trade Union (Amalgamations etc.) Act—an Act with antecedents—which are now in Section 100(1) (b) of the 1992 consolidation Act, all voters must be allowed to do so free from "interference or constraint".
What does the phrase "interference and constraint" mean? Clearly, we believe that it does not encompass the putting of views about the merits of voting for or against a resolution. Nor does it encompass the expression of an opinion about the consequences of a particular ballot result. I suggest that "interference or constraint" means, in essence, the exercise of some kind of constraint which might make it particularly difficult for a vote to be cast by someone entitled to do so. In effect, it is constraint attempted by the body organising the ballot.
The activities of a "third party"—that is to say some person who is not either voting in the ballot, or conducting it—should not be considered in the same way. A union ballot is a ballot of its own members, by the union. The ballots which are regulated by law share the common characteristic that they confer some "advantage" on a union —in this case, the ability to merge under the statutory arrangements where the common law was more onerous in terms of what it would require.
Our laws have always been designed to protect the voters in a ballot from "interference or constraint" by the organiser of the ballot. If the organiser of the ballot observes the requirements of the law, the ballot result will be valid, as far as the law is concerned. If the organiser believes that something has happened—perhaps because of the actions of a "third party"—the organiser has full freedom to decide whether or not anything consequential needs to be done.
It follows, therefore, that the law does not need to address the question of whether union merger ballots should be "protected" against what the noble Lord opposite chose to characterise, in his own words, as "third party interference" by means of some kind of sanction imposed on that third party. What we are seeking to do, and what the existing law in this area does, is to regulate the arrangements which are made between the organiser of a ballot and the members who are entitled to vote. There is no need, and no reason, for the law to extend beyond that primary relationship. Indeed, I suggest that it is not really meaningful to talk about a union merger ballot being subject to "interference or constraint" by anyone other than the union.
Lord McCarthy: Would the noble Viscount care to comment on an example? It was well known, and not denied, that during the amalgamation processes which ended between the NGA and SOGAT, employers in the industry had no compunction about saying that if that amalgamation went through they would cancel their agreements with SOGAT. Indeed many of them did. Many people in the course of that ballot were told: "If you vote for this merger, we shall cancel recognition". If that is not interference, what is?
Viscount Ullswater: I have sought to indicate that there was no interference with the way in which people cast their vote. It is merely a consequence of the result of the ballot; there was no interference in the way in which the ballot was conducted. Similarly, it is not meaningful to suggest that voters in a ballot about merger between employers' associations could be interfered with or constrained other than by the employers' associations organising the ballot.
The enforcement arrangements, which can be exercised if the merger balloting requirements are not satisfied, have some unique features. Section 103 of the 1992 Act provides that complaints can be made only to the independent certification officer. There is no provision for complaints to be made to the courts. That is perfectly logical since in this instance it is the certification officer's job to decide whether a merger should be allowed to proceed following a proper ballot.
Frankly, these arrangements have worked perfectly well over the years. The Bill does not propose to give union members the right to take complaints to the courts on the ground that their union has failed to satisfy the merger balloting requirements. The suggestion in the amendments that the courts should be given a role is simply misconceived. I should also point out that if there were to be a complaint under the present law about third-party interference and the certification officer upheld the complaint, the effect would be to make the ballot invalid and a merger based on a ballot result could not proceed. I feel safe in assuming that the authors of the 1964 legislation could have intended no such result.
For those reasons the amendments are unacceptable. The requirements and enforcement arrangements for merger ballots as proposed by the Bill are both adequate and appropriate. I ask the noble Lord to withdraw the amendment.
Lord Wedderburn of Charlton: I thank the Minister for making the Government's position clear, I think for the first time, on this matter. I apprehend that we have not hitherto had a clear statement that the policy of the Government has reached the point where they are against legislation in order to stop interference and constraint upon those who vote in a ballot —either for a political fund or on amalgamation or transfer of engagement. That is a proposition which I am sure Members of the Committee will want to look at in Hansard and look at very hard.
My noble friend Lord McCarthy gave an example. I wish to give the Minister another. What his law will allow is the employer to say, as it appears the Timex Corporation has said to some of its workers, "Here is
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your notice and you need not come back". In that case it was in order to recruit a separate workforce. In our case it might be that if someone votes for the bigger union amalgamation he need not come back when his notice is worked out. Is that what the Government support? Because that is what their law allows. They are against any interference by third parties —employer or anyone else. As a matter of fact these amendments give a remedy. The secret is in the fine print of the schedule where the union would have a remedy. I think that I have couched the amendments too narrowly. Should not the workers have a remedy if told that if they vote a particular way in the ballot for a merger they need not come back after their short notice is worked out? In fact, it is much more likely that they will be given money in lieu of notice. The Minister does not say to me that that is wrong.
Lord Stoddart of Swindon: I must confess that I was rather surprised by the noble Viscount's answer. The instances given by my noble friends Lord McCarthy and Lord Wedderburn are ones of intimidation and blackmail against people voting in a ballot. I wonder whether my noble friend can give me his opinion on this point. If in a general election an employer said to one of his employees, "If you vote for the Labour Party"—it could be the Conservative Party these days because employers are not very happy with the Conservative Party—"you can sling your hook; you will no longer be employed by me", would that constitute an offence?
Lord Wedderburn of Charlton: My noble friend asks me a quite difficult question at which I would want to look long and hard. I suspect that there are matters in the Representation of the People Acts which might make that very questionable. What I am saying is that there is nothing in our labour laws or employment laws which gives to workers any parallel protection. The Minister's reply was most important for another reason. We shall come to that in the next set of amendments.
The Government have suddenly begun not to like union mergers. They did not like the UNISON merger which was a triumphant success in the public sector. That explains the Bill's construction in the form that we find it. I am not saying that it is the only reason why the Government are against the law on interference. It would take a long time to tease out the precise intellectual and psychological problems which cause them to reject something at which most other legal systems of the modern age are able to look with greater care and attention.
However, I note what the Minister says. I thank him for saying it and for making it clear. Despite his strong stance, I suspect that it is something that Members of the Committee may want to think about before Report stage, because interference and constraint are behind the structure of all of the first part of the Bill. In the first 10 clauses it is there all the time, but it is usually attached only to the unions. We shall have to see what we can do with it on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 14:
Page 8, line 15, at end insert ("or by some other method approved by the Certification Officer.").
The noble Lord said: This is an associated matter. The Government have now decided that in this area of mergers there shall be postal ballots only. As a matter of fact they have also applied a number of other rules which have not been applied before. The amendment would allow for some alternatives. It would allow for an alternative only with the approval of the certification officer. What I am getting at are workplace ballots but workplace ballots according to the rules approved by the certification officer.
If we are concerned about getting the highest turnout, which on a merger of unions we should be, all the evidence is in favour of something by way of a workplace ballot or a workplace ballot with a postal voting paper being sent beforehand, which is what would be allowed under my amendment. That is what was said by the noble Earl, Lord Gowrie, in this House in 1980, when he spoke of it being clear that the workplace ballot produced the highest degree of participation. That is what Undy and Martin found in their survey in 1984. They said that no system produced all the virtues but,
"if the concern is for the highest degree of participation the workplace ballot should be encouraged".
Participation on a merger is absolutely vital. One asks therefore why the Government chose this moment to upset something which has been there since 1964; namely, the scheme of voting under the Trade Union (Amalgamations, etc.) Act 1964. That Act removed the shackles on trade union voting rules which had been there since 1876. It was not, as some think, a regulatory measure. It was a measure which removed a number of previous regulations. The basic rules were that every member had to vote or must be entitled to vote without interference or constraint on the part of anyone and with a fair opportunity to vote; the method of voting had to be a voting paper which was marked; and the trade unions had to take all reasonable steps to see that members received the notice at least seven days before the vote. Those rules were administered, and are administered, by the certification officer—the certification officer who, as we shall see later in the Bill, is now put in jeopardy in terms of such functions which he has fulfilled remarkably well and with the complete trust of the trade union movement and its members.
The Government's real aim, it seems, is to upset this arrangement. Indeed, in another place the matter was put remarkably shortly. During the Committee stage the Minister said:
"Legislation on union mergers has remained unchanged since the Trade Union (Amalgamations, etc.) Act 1964".
He went on to say:
"Since 1988, however, ballots that are similar to merger ballots—for example, those involving a large proportion or all of a union's membership—have had to be conducted by full postal voting and are subject to independent scrutiny".
Perhaps I may pause there for a moment. This amendment does not in any way remove the demand for independent scrutiny. Later, he says:
"It is important to ensure that full postal balloting takes place on proposed union mergers".
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He continues:
"During the 1980s, the impact of mergers on union membership clearly increased. The 171 mergers between 1968 and 1979 involved just under 750,000 members; between 1979 and 1989 there were fewer mergers … but they involved nearly five times as many members; over 3.5 million. That, in itself, was a compelling reason to look again at the law, to ensure that members' interests and rights were properly protected in mergers".—[Official Report, Commons Standing Committee F, 1/12/92; col. 57.]
We have two factors working on the mind of the Minister. First, the 1964 Act had been unaltered for a very long time. Secondly, more mergers were taking place in terms of the number of members involved. I can only think that someone found this situation and he or she must have said: "Minister, here is a bit of trade union law that has not been changed since 1964. Good heavens! Let's have a go at that".
The reasoning stops except for the increase in the number of mergers. The number of members involved in the mergers is not exactly the test because the certification officer reveals every year precisely what complaints are made and not made in respect of any merger that has taken place that year. We can take, for example, 1979 which involved 105 complaints; but, as the certification officer explained, that was a very unusual year in every respect, and there were very good reasons for that figure. If one takes the normal years, from 1980 to 1984 there were 26 complaints although very few succeeded. From 1985 to 1991 there were only three complaints during a period when the numbers involved were going up. All three complaints were dismissed and made no case. In recent years the figures have either been nought or one. In other words, the system has been working better than it used to. The Government have said nothing about the work of the certification officer here as the judge, conciliator, mediator and expert in union amalgamations.
The present system is that postal ballots are not demanded, although they frequently occur. In that regard, has the view of the certification officer been taken? Have the Government looked into the reasons why the number of successful complaints has been falling since the early 1980s? I should have thought that that was something of which the Government wanted to be proud except, I suppose, that it is a 1964 Act and not a Government Act.
This evidence adds up to the fact that there is, first, no evidence that the 1964 statute is failing in any way. However, sometimes there are grumbles. In passing, perhaps I may say that the Green Paper refers to certain grumbles; but they could have gone to the certification officer if a case could be established. Therefore it is the complaints to the certification officer which one needs to look at. Secondly, if we are concerned about mergers taking place and to represent the interests of the members, then the evidence is still what it was in the mid-1980s. The other day I had in my hand the 200-page index of the Department of Employment research. I did not see any piece of research which was likely to reject that evidence. If there is such evidence then we should hear it.
The evidence that I am aware of is still that the workplace ballot, properly run, is better in terms of

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getting the participation rate up. Sometimes other unions prefer a postal ballot. We are saying that the union and the members concerned should have the right to choose. They should not be dragooned by the diktat of this Bill into always having a postal ballot which may not be effective for its members. I beg to move.
Viscount Ullswater: This amendment seeks to modify in an unacceptable way an essential element of the new requirements that are to apply to union merger ballots, by virtue of the provisions in Clause 4. That is, the requirement for such ballots to be held by fully-postal voting. We believe that the law on such ballots should now be brought into line with the arrangements applied in respect of ballots on other important union decisions—that is to say, union election and political fund ballots. What the amendment seeks to do, however, is to allow for different voting methods to be used, where these are "approved by the certification officer".
It is interesting to reflect that the law actually does much to facilitate union mergers. That is, in part, a recognition of the fact that trade unions are special kinds of voluntary unincorporated associations. I mention this simply because it is argued from time to time that the same law should apply to all such associations; yet this has never, in fact, been the case. Different unincorporated associations require different legislative regimes.
The legislation on union mergers has remained largely unchanged since the Trade Union (Amalgamations, etc.) Act of 1964, a point brought to our notice by the noble Lord, Lord Wedderburn. That Act left it to unions to decide for themselves what method of voting should be used for the ballots which the law requires before such mergers could take place, though the balloting process is not wholly unregulated by the legislation.
Since 1988, however, ballots which are similar to merger ballots in many respects—for example, by involving a large proportion, or all, of a union's members—have had to be conducted by fully-postal voting and subject to independent scrutiny. These requirements for union election and political fund ballots are widely recognised to be appropriate as the means of protecting members' interests, and democratic rights.
I hope that there need be no debate between the Government and the Opposition about the proposition that fully-postal balloting, subject to independent scrutiny, is likely to afford ordinary union members greater assurance about the proper conduct of such ballots by their union than any other voting method.
Regardless of whatever claims may be made for turnout figures in ballots held by other means, the fact is that postal voting and independent scrutiny give union members proper assurance that a union ballot will be properly conducted and that votes can be considered and cast—or a decision taken by the individual not to cast a vote—away from the particular pressures that may apply in a workplace
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environment. Where trade union members care about an issue which is being balloted, they will make it their business to vote.
It may, nonetheless, be useful to the Committee for me to quote from the 1987 Green Paper Trade Unions and their Members. Paragraph 5.6 of that Green Paper pointed out that:
"Properly supervised and organised, a fully-postal system is least susceptible to manipulation, whether of an extreme or of a subtle nature. Ballot papers are dispatched from a central point against a full [electoral] roll and are less open to misappropriation than those which are distributed by other means. The members have the opportunity to vote away from possible pressures which might arise at the workplace."
Accordingly, the 1991 Green Paper proposed to extend the same kinds of protections that union members enjoy in respect of election and political fund ballots to cover union merger ballots as well. At the time of the Green Paper, it was also appropriate for us to look again at the underlying policy assumptions, since there was clear evidence that the tempo of union mergers was increasing around that time. During the 1980s the impact of mergers on union membership clearly increased. I believe that the noble Lord, Lord Wedderburn, quoted the words of my honourable friend in another place about the figures.
The amendment proposes to allow the certification officer to approve voting methods for union merger ballots other than fully-postal voting. While that might sound like useful flexibility, I am afraid that it just would not do. What criteria is the certification officer supposed to apply to making any such decision? Why, indeed, should the certification officer's judgment be allowed to deprive ordinary union members of what would otherwise be their right to a fully-postal vote on the question of the future existence of their union? No, much as we recognise the certification officer's reputation and capacity, we should not impose upon him any such responsibilities or tasks.
I am surprised—and disappointed—that the Opposition do not, apparently, share our concern to ensure that union members can depend on the law to ensure that they get the opportunity of a fully-postal vote on important issues such as the very future existence of their unions.
The Government, however, are determined to see that union members are, in future, guaranteed the right to a fully-postal ballot on union mergers. That is why I hope that the noble Lord will withdraw this amendment.
Lord Wedderburn of Charlton: In view of one of the Minister's remarks, I must say immediately that he is not able necessarily to impute my views to my noble friends. This is my amendment and I argued it as I wished. I am astonished by the Minister's reply. I advise my noble friends that this is the kind of pass which we sell at some jeopardy. There have been many of them—and this is another. The implication of the Minister's rhetoric about postal ballots being "properly conducted" was that all other ballots are not properly conducted. He referred to research. What research? The 1987 Green Paper?
The Minister said—I believe that I quote him correctly—that this set of union relationships or

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mergers is to be "brought into line" with other laws which have been passed by this Government. I dare not translate "brought into line" into German because it is too awful. Those arguments simply say, "It won't do. We have done it for that, and you must accept it for this." That is the final argument to which one cannot possibly reply.
However, I will say this for the Minister. I understand the point about having the same standards for different organisations; but what we mean by that —what I mean, at any rate—is having the same standards of fairness. We have never demanded that trade unions should have the enormous immunities which companies have; namely, limited liability. We have never demanded that. We have never demanded that unions should be able to merge in the way in which companies can operate in take-over operations. Of course not. However, there are certain standards of fairness and although we believe that they would be better met with this amendment, I see that I have no option but to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5.15 p.m.
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 15:
Page 8, leave out lines 16 to 23.
The noble Lord said: I shall speak briefly to this amendment because I know that the argument is covered in a later clause; but it would be useful to see where we are in relation to this amendment.
The amendment aims to leave out of the Bill what I take to be a somewhat novel doctrine in the Government's propositions which might be called the "ballot paper purity" doctrine. "Ballot paper purity" means that all the essential voting papers or notices must be in their own envelopes, and that nothing else must be placed in the envelope. On page 8, that doctrine is applied to merger ballots. Subsection (5) states that there must be nothing with the voting paper except the notice, an addressed envelope and a document containing the instructions.
It is, of course, possible to have such a rule; but I felt that that was never argued very strongly or with great conviction in the other place. Speaking from the trade unions' point of view, that provision will force the trade unions to incur a double cost. "Ballot paper purity" means that unions will have to send out mail shots to their members twice—and they will not receive any public funds now. I thought that it might be useful to move this amendment now because I should like to know the nub of the Government's demand that this must always be so. I can think of situations in which I might regard it as desirable, but we are talking about an absolute rule which runs through the proposed legislation. I should like to know from the Minister why the Government have specified that at this juncture. I beg to move.
Baroness Turner of Camden: I should like to support my noble friend on this amendment. The fact that I have not done so on previous amendments should not be taken to imply that I was not supporting
1368
him them. He made such good, strong arguments that I thought that there was no point in intervening from the Front Bench.
As I understand it, the Government's intention in this clause is to prevent any recommendation or guidance of a policy nature being issued with a voting paper to union members. In my view, that is an absurd requirement. It seems to me that members are entitled to know what their elected leadership is recommending. Judging from some of his remarks this afternoon, the Minister seems to think that that is some kind of constraint. On the contrary, I think that it is an individual member's right to know the exact reasons for a particular merger.
As has already been indicated, there were not many trade union amalgamations prior to 1964; but in that year legislation was introduced which made things a lot easier. The concept of the transfer of engagements was introduced whereby a small union could transfer to a larger one using simplified procedures. As a result of that legislation, a number of transfers of engagement took place, along with full amalgamations which required the balloting of both sets of members. Most sensible people (including most employers) welcomed those developments. We were always told back in the 1960s—we were told by the Donovan Commission—that there were too many unions in the United Kingdom, leading to unstable industrial relations and, for example, to the disputes at Ford, where there were 22 unions.
However, it is not easy to bring about a merger. People have strong loyalties and tend to cling to the organisations that they know, so unions do their best to carry their members with them. On the other hand, although there may be many meetings and conferences and although many pamphlets may be issued, there are still people who do not go to meetings and who do not necessarily read the union journal. Those people, however, (who are good and loyal union members) have a right to know what the elected leadership thinks or is recommending. Information may be available through the media but, as we know only too well, that information may not be reliable. It may be tainted by the views of newspaper proprietors who are not noted for their union views. It is absurd to say (as the Government apparently do) that if a union wants its individual members to know what the leadership thinks, it must go to the expense of a separate circulation. When an individual union member receives the ballot paper, he or she wants to know what the merger is all about and what the elected leadership is recommending. If this subsection remains in the Bill, it will be difficult for someone to know that.
I know that we shall be debating this issue later in relation to Clause 5; but I nevertheless support everything that my noble friend has said in relation to this subsection. I do not think that it should remain in the Bill.
Lord Boyd-Carpenter: It is perhaps significant that this is the first of many amendments which has elicited support from the Government Front Bench—
Lord Hailsham of Saint Marylebone: From the Opposition Front Bench.
Lord Boyd-Carpenter: Indeed, from the Opposition Front Bench. That makes one think very carefully about the terms of the amendment. The Bill, as it stands, inhibits the use of the ballot paper and its accompanying documents for the purpose of presenting partisan views of one sort or another on the merits of the issue on which the vote is to take place. Obviously, the Opposition Front Bench think that it might be advantageous in certain circumstances to certain unions if they could use the ballot paper machinery for putting forward their own propaganda.
My own view is perfectly simple. The ballot paper and its accompanying documents should be strictly impartial. There is nothing whatever to stop the union separately circulating its members with its views, just as there is nothing to prevent those who advocate other policies from similarly advocating their views. However, to use the ballot paper (as would be permitted if this amendment were carried) for the purpose of conveying one set of views from one side on a no doubt controversial issue seems utterly wrong. I hope that my noble friend will emphatically reject it.
Baroness Turner of Camden: Before the noble Lord sits down, in his opening remarks he said that the Opposition Front Bench had not supported the other amendments. That is not so. I made it clear that I was not speaking to them but that our names are to them. We did not speak to them because my noble friend Lord Wedderburn gave a full explanation of what the amendments stood for.
Lord Boyd-Carpenter: I hope that the noble Baroness will not feel that my observations contained any reflection on her. It seemed, however, that a certain rather agreeable detachment was being shown by the Opposition Front Bench, which I only hope may continue.
Lord Ewing of Kirkford: The debate has been opened up, so I wonder whether I may make a contribution for a few moments. I have listened to the Minister speak on a number of amendments in this part of the Bill. It seems to me that he is labouring under the misapprehension that almost the first that the membership hears of a proposed trade union merger is when the ballot paper is issued. In all sincerity, perhaps I may disabuse him of such an idea.
The two unions that I know best—the Union of Communication Workers and the National Communication Union —have been discussing merger at successive annual conferences for the past seven or eight years. There is not one member in either of those two unions who does not know the background to those discussions and what proposals are likely to come before the membership in due course.
It is misguided to suggest that when the ballot paper is issued the national executive committee of both unions should be denied the opportunity to show leadership. Throughout the years, the one consistent criticism levelled at trade union national executive committees and general secretaries, especially by
1370
successive Conservative governments, has been that they failed to show leadership. So when the opportunity arises for trade union national executives, general secretaries and presidents to show leadership, to express a view that such discussions have taken place at annual conferences for seven, eight, nine or in some cases 10 years and that by and large they have been endorsed by the membership representatives at those annual conferences, it is misguided to suggest that they should stand back; that all that should happen is that the ballot paper should be issued to the member at his or her home; and and that they should make the decision on a bland ballot paper. That does not happen in our parliamentary system.
A parliamentary candidate submitting himself or herself for election to the other House is entitled to six words on the ballot paper. The Representation of the People Act says that they are supposed to describe the candidate. But they often do not describe the candidate; they describe the candidate's views. Any Member of the Committee in touch with politics in Scotland will have seen a system develop over the years whereby candidates, especially Scottish National Party candidates, will describe themselves as the anti-poll tax candidate or the anti-water privatisation candidate instead of the Scottish National Party candidate. So on the ballot paper for the parliamentary election is a set of words that conveys a recommendation to the electorate. That is all we are asking in the amendment.
We shall have the ludicrous position—we have recently seen the amalgamation of the AEU and the electricians' union —where general secretaries and senior officials of both unions travel the country from Land's End to John o'Groat's recommending to the membership of both unions that they should vote for the amalgamation. Yet they are not allowed to show the leadership that they have been elected to show by placing that recommendation on the ballot paper. There is nothing wrong with that. It is a common feature of amalgamations in other parts of the trade union world. I hope that the Minister will have second thoughts about this matter, take it away and perhaps even come back on Report with a much more reasonable recommendation.
Lord Murray of Epping Forest: This provision is odd to the point of being bizarre in a Bill which, we are told, is designed to extend the rights of trade union members. That is the context in which the Bill is being offered to us: it will give trade union members some additional rights.
Members have the right to elect their representatives. That is common ground. Surely they have the right to know what those representatives are doing. They should be accountable to them. That must be common ground. Members have the right to know what those elected representatives are thinking, what conclusions they have reached and what policy issues face the union. Surely that is common ground.
There is another right that members have. They have the right to know that their elected representatives are spending their money carefully. What will a member think who receives through the post a sealed ballot form for a merger, with bits of paper, as

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prescribed by law, but which contains nothing about the union's views? That is all right because the following day another letter will arrive. It will be typed, stamped and posted separately. It will tell him —so the Government tell us—what the union leadership thinks about the previous day's letter. What will the member say about that? He will say that his union leaders are bonkers.
If I were in such a position I think I would go back to my branch and move a resolution condemning the executive for wasting money. Yet the Government tell us that it is all right for the union to send a second, separate, distinct and additional letter giving the union's views. The Bill is an odd one in many ways, but that must be the oddest provision in all anti-union legislation in the past 10 years. It does not make sense in terms of what the Government say they are trying to achieve, which is to enhance and protect members' rights at every turn so that when something comes through the post the member knows what the people who purport to act in his name have been up to. Surely the Government will have another think about this matter.
Lord Rochester: I support the amendment. As I understand it, the subsection was inserted into the Bill in another place only on Report, along with Clause 5, providing, as the noble Baroness, Lady Turner, has said, that the notice to be sent out with voting papers for union merger ballots must not make a recommendation or express an opinion about the proposed merger.
Incidentally, I am surprised that Amendments Nos. 15 and 18 are not being taken together because it seems to me that they deal with the same matter. The Minister will no doubt say that it is wrong when voting papers are sent out that they should be accompanied by one-sided views as to the merits of a merger proposal. As justification for that, the Minister may refer to the recent NALGO ballot on the merger with other unions to form the new union, UNISON, and to the few complaints that were then made about the canvassing material in favour of the merger sent out with the voting papers by NALGO.
I understand that the Government have no objection to the presentation of canvassing material but object only to its being despatched together with the ballot papers. However, the effect of the subsection and new Clause 5 is to involve unions in the additional expense of having to send out such material separately from the voting papers. However, under Clause 7 the funding of the union ballot is to be phased out.
That is an example of what on Second Reading I took leave to say savoured of a certain mean-mindedness on the part of the Government. I deplore that approach and I support the amendment.
5.30 p.m.
Lord Stoddart of Swindon: I, too, support the amendment. I do so as a former member of NALGO and as one who at present advises it. Apparently the vote in the three unions which combined to form UNISON caused the Government to introduce these
1372
particular provisions into the Bill. The three unions concerned have had wide democratic discussions at all their branches, regional committees, national committees and national conferences. I refer to not one national conference but many. The provision has been the subject of great discussion between the trade unions concerned.
In the last analysis the trade union executive is carrying out what it has been told to carry out by the union members, the branches, the regional organisations and national conferences. All that the trade union executive wishes to do, and it should be allowed to continue, is to tell its members what it believes is right for the trade unions. It is, after all, the national executive whose members have been elected by trade union members to give them guidance. Yet as regards the most important matter the Government wish to refuse to allow the executive to give guidance at the point when a decision is to be made by the trade union members.
That appears to me to be crazy. For the reasons which my noble friend and other Members of the Committee have given, and for the reasons which I have given, I hope that the Government will reconsider their views. Their provision is most illiberal and reeks a little of spite. I hope that the Minister will agree at least to look again at the provision. Even if we do not vote on the matter tonight we can consider it at a later stage if the Minister gives that undertaking.
Viscount Ullswater: The noble Lord, Lord Wedderburn, asked me to identify a narrow issue which he raised in moving the amendment. I shall seek to do so because I, like the noble Lord, Lord Rochester, had thought that it would be convenient to group together Amendments Nos. 15 and 18. But that was not to be and therefore we are dealing with them separately. I wish to address my remarks to the narrow issue which was raised moved by the noble Lord, Lord Wedderburn, because we shall have a fuller discussion about Amendment No. 18 later tonight.
There has always been a requirement for any union proposing to merge to prepare a notice which either sets out in full the instrument of amalgamation or transfer or gives an account of that instrument sufficient to enable those receiving the notice to form a reasonable judgment of the main effects of the proposed amalgamation or merger. That provision is made in Section 99(2) of the Trade Union and Labour Relations (Consolidation) Act 1922. The notice has always had to be approved by the independent certification officer, or the equivalent position before 1975, and has had to be supplied to members of the union.
Those arrangements are a unique feature of the requirements concerning union merger ballots and there is no equivalent, for example, in respect of union elections, political fund or industrial action balloting. The notice requirement means that voters in union merger ballots must by statute always receive basic information about the subject matter of the ballot.
The union members must have the right to a proper ballot on such matters as the future existence of their union. The law should do everything practicable to

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ensure that union leaderships do not put one-sided campaigning material to voters in a way which could unduly influence the voters' decisions. We have the chance to prevent that happening in the case of union merger balloting and the amendment seeks to undermine what is proposed.
I entirely agree with my noble friend Lord Boyd-Carpenter that the unions have every right to send to their members a separate circulation of their views. We do not seek to interrupt that at all. I shall answer more clearly the concerns of the noble Lords, Lord Ewing and Lord Murray of Epping Forest, when we come to Amendment No. 18. Perhaps we have strayed into that territory already but I have comments to make about that. I believe that I have answered the narrow interpretation of what the noble Lord, Lord Wedderburn, asked me about Amendment No. 15 and I ask him to withdraw the amendment.
Lord Wedderburn of Charlton: I am grateful to the Minister. He will have seen me in consultation with my noble friends. We are of the joint opinion that we cannot wait for Amendment No. 18 and we do not wish to withdraw this amendment.
5.37 p.m.
On Question, Whether the said amendment (No. 15) shall be agreed to?
Their Lordships divided: Contents, 84; Not-Contents, 136.

Division No. 2

CONTENTS

Airedale, L.

John-Mackie, L.

Ardwick, L.

Judd, L.

Beaumont of Whitley, L.

Kennet, L.

Blackstone, B.

Kilbracken, L.

Blease, L.

Kirkhill, L.

Bottomley, L.

Lockwood, B.

Bruce of Donington, L.

Longford, E.

Campbell of Eskan, L.

Lovell-Davis, L.

Carmichael of Kelvingrove, L.

McCarthy, L.

Carter, L.

McGregor of Durris, L.

Cledwyn of Penrhos, L.

McIntosh of Haringey, L.

Cocks of Hartcliffe, L.

McNair, L.

David, B.

Mallalieu, B.

Dean of Beswick, L.

Mason of Barnsley, L.

Desai, L.

Merlyn-Rees, L.

Dormand of Easington, L.

Molloy, L.

Eatwell, L.

Morris of Castle Morris, L.

Ewing of Kirkford, L.

Morris of Kenwood, L.

Falkender, B.

Mulley, L.

Fisher of Rednal, B.

Murray of Epping Forest, L

Foot, L.

Nicol, B.

Gallacher, L.

Ogmore, L.

Galpern, L.

Parry, L.

Glenamara, L.

Perry of Walton, L.

Graham of Edmonton, L. [Teller.]

Peston, L.

Pitt of Hampstead, L.

Grey, E.

Plant of Highfield, L.

Hampton, L.

Prys-Davies, L.

Hamwee, B.

Rea, L.

Hanworth, V.

Richard, L.

Hollis of Heigham, B.

Ritchie of Dundee, L.

Holme of Cheltenham, L.

Robson of Kiddington, B.

Howie of Troon, L.

Rochester, L.

Jay, L.

Russell, E.

Jay of Paddington, B.

Seear, B.

Jeger, B.

Sefton of Garston, L.

Jenkins of Hillhead, L.

Serota, B.

Jenkins of Putney, L.

Shackleton, L.

1374

Stoddart of Swindon, L.

Varley, L.

Taylor of Blackburn, L.

Wedderburn of Charlton, L.

Taylor of Gryfe, L.

Whaddon, L.

Tordoff, L. [Teller.]

White, B.

Turner of Camden, B.

NOT-CONTENTS

Aberdare, L.

Long, V.

Acton, L.

Lucas of Chilworth, L.

Allenby of Megiddo, V.

Lyell, L.

Archer of Weston-Super-Mare, L.

Mackay of Ardbrecknish, L.

Mackay of Clashfern, L. [Lord Chancellor.]

Arran, E.

Astor, V.

Manchester, D.

Astor of Hever, L.

Marlesford, L.

Auckland, L.

Marsh, L.

Banbury of Southam, L.

Melville, V.

Barber of Tewkesbury, L.

Merrivale, L.

Bellwin, L.

Mersey, V.

Bessborough, E.

Milverton, L.

Blatch, B.

Monk Bretton, L.

Borthwick, L.

Monteagle of Brandon, L.

Boyd-Carpenter, L.

Mottistone, L.

Brabazon of Tara, L.

Mountevans, L.

Bradford, E.

Mowbray and Stourton, L.

Broadbridge, L.

Munster, E.

Brookeborough, V.

Murton of Lindisfarne, L.

Brougham and Vaux, L.

Nelson, E.

Butterworth, L.

Nelson of Stafford, L.

Cadman, L.

O'Cathain, B.

Caithness, E.

Onslow, E.

Campbell of Alloway, L.

Oppenheim-Barnes, B.

Carnegy of Lour, B.

Orkney, E.

Carnock, L.

Orr-Ewing, L.

Chalker of Wallasey, B.

Oxfuird, V.

Charteris of Amisfield, L.

Park of Monmouth, B.

Clanwilliam, E.

Pender, L.

Clark of Kempston, L

Peyton of Yeovil, L.

Cranborne, V.

Reay, L.

Crathorne, L.

Rees, L.

Crickhowell, L.

Renfrew of Kaimsthorn, L.

Cumberlege, B.

Renton, L.

Darcy (de Knayth), B.

Renwick, L.

Davidson, V.

Rodger of Earlsferry, L.

Denton of Wakefield, B.

Romney, E.

Eccles, V.

St. Davids, V.

Eccles of Moulton, B.

Salisbury, M.

Ellenborough, L.

Saltoun of Abernethy, Ly.

Elles, B.

Seccombe, B.

Elliot of Harwood, B.

Selborne, E.

Elliott of Morpeth, L.

Selsdon, L.

Elton, L.

Sharpies, B.

Ferrers, E.

Skelmersdale, L.

Flather, B.

Stewartby, L.

Fraser of Carmyllie, L.

Strange, B.

Goschen, V.

Strathcarron, L.

Gray, L.

Strathclyde, L.

Haig, E.

Strathmore and Kinghorne, E. [Teller.]

Hailsham of Saint Marylebone, L.

Sudeley, L.

Halsbury, E.

Swinfen, L.

Harrowby, E.

Tebbit, L.

Harvington, L.

Teviot, L.

Hayhoe, L.

Thomas of Gwydir, L.

Hayter, L.

Trumpington, B.

Henley, L.

Ullswater, V.

Hesketh, L. [Teller.]

Vaux of Harrowden, L.

HolmPatrick, L.

Vivian, L.

Hooper, B.

Wade of Chorlton, L.

Howe, E.

Wakeham, L. [L. Privy Seal]

Hylton-Foster, B.

Walker of Worcester, L.

Johnston of Rockport, L.

Wharton, B.

Kimball, L.

Whitelaw, V.

Kintore, E.

Wilberforce, L.

Kitchener, E.

Wise, L.

Lauderdale, E.

Wyatt of Weeford, L.

Lawrence, L.

Zouche of Haryngworth, L.

Resolved in the negative, and amendment disagreed to accordingly.
5.46 p.m.
[Amendments Nos. 16 and 17 not moved.]
On Question, Whether Clause 4 shall stand part of the Bill?
Lord McCarthy: The Committee will not be surprised that we wish to challenge that Clause 4 shall stand part of the Bill. We have tried to modify it in a number of ways and have been unsuccessful.
The central thrust of the clause is that it provides that ballots should exist on union mergers and must be changed to make them identical with other forms of ballot and that they should be fully postal. I do not believe that we can say, even at this late stage, that we have had a sustained and comprehensive explanation from the Government as to why they want that to be done. At one stage when he was explaining the matter the Minister said—I wrote it down—that the Government are not seeking to disturb the present rules. He must have been thinking of some other Bill. Of course the Government are seeking to disturb rules which have existed with every evidence of success and effectiveness for a long time.
Again, the Minister said—again we wrote it down and Members of the Committee will read it in Hansard —in reply to one of our amendments that the only body organising a merger which could practise interference or constraint was the body involved; namely, the trade union. I presume that the other examples do not represent interference or constraint. We must return to those issues on Report.
The Minister said also that he is sure that everybody must agree that postal voting is always cleaner. That has not been established at all. I know of no sustained research which suggests that postal voting rather than workplace voting is cleaner. What makes an election clean is how the register is operated; how comprehensive the register is; whether the people on the register are members or whether some of them are dead; whether members on the register are called Mickey Mouse; whether on the basis of that register there is no intimidation in the vote; and, most important, how the votes are counted.
If we wish to discuss one method of voting rather than another, apart from those important technical matters, the critical issue is the turnout. We all know that parliamentary elections vary according to the turnout. That applies also to trade union elections. Those of us who are concerned, and have been for a long time, to improve democracy in trade unions are absolutely committed to the philosophy of the high turnout. We believe that it is minorities in small votes with low turnouts that manipulate democracy. That of course is especially important in the case of amalgamations. Therefore I in no way accept that there is something clean and appropriate in a postal ballot, especially a postal ballot in an amalgamation. But the really fundamental change—this has been brought out in the debate in this Chamber better than in another place where this clause was rather rushed —is the change in the Government's attitude towards amalgamations.
Successive governments, not just this Government and not just Conservative governments, have on the whole had a good record—some have an excellent
1376
record—in permitting changes in the rules governing amalgamations. It was Lloyd George in 1917–1 am sure the noble Baroness, Lady Seear, would recognise this if she were present—who accepted the case for making mergers easier, for reducing the turnout and for reducing the majority. We know that if it had not been for the 1917 legislation the shape of the British trade union movement would be much more chaotic and much more fragmented than it turned out to be. The great mergers of the T and G, the AEU and the GMB which followed the 1917 legislation could not have occurred without that legislation.
Some Members of the Committee may remember the days when the Conservative Party thought it was part of its task to facilitate the merging of unions. In 1964 a Conservative Back-Bencher moved the 1964 amalgamation legislation and the Government gave that legislation time to proceed. It was a Conservative Government who introduced the present merger arrangements which, most importantly, allow for engagement transfer so that only one union—the large union—has to ballot. Nevertheless in exchange for those concessions the Act of 1964 was highly regulated. It was much more regulated than was the case in those days with trade union elections and union strike ballots.
The certification officer—he was not called that then—has to agree an instrument of transfer or amalgamation. In the instrument of transfer or amalgamation members must be provided with a reasonable judgment, or a way of making a reasonable judgment, on the main effects of the merger. The certification officer has to agree that the instrument of amalgamation enables them to make a reasonable judgment of the main effects of the merger. That is not done in the case of strikes. Every member has to have a vote without interference or restraint, as my noble friend has said. Complaints procedures to the certification officer have to be in place and the union cannot proceed to the merger for a further six weeks. There is also an appeals procedure and other measures. That complex procedure is often extremely difficult to implement and it leads, I believe, to something like a 30 or 40 per cent. failure rate in mergers.
Mr. Undy and I recently carried out a study of mergers and the problems involved in them. We consider there is a high failure rate in mergers. The average time that is required to bring about a merger of two unions of approximately equal size is between five and 10 years. As has been said, the UNISON merger took as long as that. It is a long-winded process, especially if one is trying to put together—as unions are these days—organisations with different backgrounds, outlooks and constitutions in a situation where the unions are probably losing members anyway. The 1964 legislation existed long before the legislation of the 1980s. Why is there a need for further regulation, and most particularly why is there a need to move from the present system where unions can have postal ballots if they wish? If they think, as they often do, that they can obtain higher turnouts with other methods—above all, they wish to

1377
see a high level of commitment to an amalgamation if it is to work —why should they be forced into postal ballots?
In Standing Committee F in another place Mr. McLoughlin said:
"It is important to ensure that full postal balloting takes place on proposed union mergers. Paragraph 5.6 of the 1987 Green Paper states why we believe that full postal ballots are most appropriate".—[Official Report, Commons, Standing Committee F, 1/12/92; col. 57.]
However, paragraph 5.6 of the Green Paper does nothing of the kind. It mentions full postal votes, semi-postal votes and workplace votes and it states that the argument in favour of the postal vote is that it is least susceptible to manipulation, whether of an extreme or subtle nature. However, none of that is relevant to amalgamations because when that Green Paper was published the Government were not thinking of amalgamations. The Green Paper does not deal with the central point that in amalgamations it is crucial to obtain a substantial majority in every single element in the amalgamation process so that union executives can proceed with the highest possible degree of commitment.
Mention has been made of the Undy study which showed that there seemed to be a greater vote in the case of non-postal ballots than for postal ballots. However, it must be said —this could have been said against the Undy study—that at the time the study was carried out it was not possible to compare unions which changed from workplace ballots to postal ballots. One could consider only unions that used postal ballots and other unions that used workplace ballots. It emerged that those who used workplace ballots on the whole achieved larger turnouts. In any case most of the study was not concerned with amalgamations because there are not many of them.
Recent work which Undy and others have done suggests that when one compares changes in methods of undertaking workplace and postal ballots the difference is even more marked. In the CPSA, for example, in recent years the turnout for workplace ballots was 38.2 per cent. But when that union changed to postal ballots the turnout fell to 20.5 per cent. In the GMB it fell from 40.4 per cent. on the workplace ballot to 18 per cent. on postal ballots. Similar figures could be given in relation to other unions, including the Transport and General. I suggest to the Committee that it is quite vital for the future merger activity of trade unions that they should be able to apply methods of balloting which maximise turnout. For that reason if for no other, this clause must be opposed and we oppose it tonight.
Viscount Ullswater: I really believe that we have covered this ground already this evening but in response to the noble Lord, Lord McCarthy, I should say that the current law on union mergers already requires ballots to be held but leaves it up to the unions involved to decide whether to conduct such a ballot by post and whether it is to be scrutinised in any way.
I believe that I have said before that we believe the time is now right to bring the law on the conduct of union merger ballots into line with that which applies
1378
to the conduct of ballots on similar issues of importance to all union members (that is, the election of union leaders and the establishment or continuance of political funds). This clause, therefore, requires that union ballots to approve resolutions on instruments of amalgamation or transfer must be fully postal and subject to independent scrutiny. It also applies to such ballot requirements similar to those of Clauses 1 and 2 of the Bill. In broad terms, the result of these changes to the current law is to apply to union merger ballots the same requirements for fully postal voting and independent scrutiny as apply, or are to apply, to union election and political fund ballots.
The clause substitutes for the present Section 100 —that section has the heading:
"Resolution approving instrument of amalgamation or transfer"—
of the 1992 Act six new sections, Sections 100 to 100E. The provisions of these new sections, and of related provisions in Schedule 7 to the Bill, are described in more detail in the notes which have been made available to the Committee.
We have heard again that the Opposition do not share the Government's belief in the principle of postal voting on important matters affecting trade union members. For our part, we are concerned with protecting the rights of individual trade union members and, together with other provisions in the Bill, the clause helps to meet our commitment to provide greater assurance for members about the proper conduct of union merger ballots.
Similarly, Members of the Committee opposite have expressed concern that fully postal ballots for union mergers will result in a lower turnout. However, the issue of whether one union should amalgamate with or transfer its engagements to another is of fundamental importance to trade union members. For that reason we believe that it is most important that voters can cast their vote—and decide whether to cast their vote—free from the kind of pressures which may be brought to bear in a workplace ballot. The important point is that every member is given the opportunity to vote in a properly conducted secret ballot. We believe that fully postal voting, combined with independent scrutiny, offers the best means of protecting members' interests. I ask the Committee not to oppose the Motion that Clause 4 stand part of the Bill.
Lord McCarthy: We agree with the Minister that the subject has been well debated. We shall not divide the Committee on this occasion.
Clause 4 agreed to.
6 p.m.
Clause 5 [Ballots for union amalgamations and transfers of engagements: notice and voting papers to be unaccompanied by influential material]:
Baroness Turner of Camden Baroness Turner of Camden moved Amendment No. 18:
Page 11, line 24, after ("transfer") insert ("but may include the text of a resolution by the union's delegate conference or executive committee (or both) regarding the proposed amalgamation or transfer.".").
The noble Baroness said: Clause 5 specifically forbids the insertion with a notice or ballot paper of any recommendation or opinion about the proposed amalgamation or transfer. It states quite clearly:
"voting papers to be unaccompanied by influential material".
That provision was introduced at a very late stage in the progress of the Bill in the other place. We have already expressed the view that it is an absurd requirement. I referred to it at Second Reading as dotty and I believe that it is. I have yet to understand the reasons for the Government's sudden insertion of the provision at a very late stage in the other place unless, as has been suggested by one of my noble friends this evening, the Government suddenly took fright at the successful merger to form UNISON.
As we have said, mergers take a long time to bring about. Of course individual members should have the right to vote if the organisation of which they have been members and to which they have given their loyalty is about to disappear and become something else, perhaps with a different name and structure. I have been involved in a number of union mergers, and in my experience the union will do its best to ensure that all members are aware of what is involved, what the new structure will be, where individual members will fit into it and how their interests will be safeguarded in the future. Normally, as has already been said, there will be many meetings, resolutions by annual or special conferences, consultative papers, and probably articles in the union's journal.
However, there are people who for various reasons do not attend meetings and may not always read the union's journal but who are loyal members nevertheless. They are entitled to vote. They have a right to know what their leadership or annual conference thinks about the proposed merger. I do not see why having the leadership's views should be regarded as being in receipt of partisan propaganda. People have a right to know how an amalgamation will affect them. To require that they vote in the dark does not confer a right on them; it takes a right away.
I am in favour of the union being able to send out a statement with the notice and ballot paper telling everyone what the new structure is and what the benefits will be. The Minister and the noble Lord, Lord Boyd-Carpenter, have said that there is nothing to prevent the union circulating its members separately, but that adds to the not inconsiderable expense. The expense will be doubled. Moreover, the individual concerned likes to know where he or she stands when receiving the ballot paper.
We have already debated the subject with Amendment No. 15, on which we voted. Amendment No. 18 suggests a compromise. We suggest that the material may include the text of a resolution of a union's delegate conference or executive committee, or perhaps both, regarding the proposed amalgamation or transfer. It is usual for the process to be started by a motion agreed either at conference or by the national executive council. If it were possible to circulate that enabling resolution with the ballot paper it would at least provide some guidance to people who otherwise might have no notion of what the leadership
1380
of their union, and the activists within the union represented at annual conference, think about the proposed merger. I beg to move.
Lord Boyd-Carpenter: This brings us again to the issue which the Committee discussed a few minutes ago. Therefore, I hope that we shall not find it necessary to spend much time on it. However, it is important that we should establish that where a notice of a ballot is sent out it should not carry with it views having a bearing on the way in which members receiving it might vote.
Members of the Committee may like to reflect whether it would not be thought outrageous if at a parliamentary election there were attached to voting papers, particularly those circulated in advance, the views of one political party or another as to the merits of the issue.
It is important that those who vote in what in many respects is as important to union members as a parliamentary election should receive a clear, clean statement of what they are voting on and not a statement which can be construed as advising them to vote one way or the other. I hope, therefore, that the Committee will follow its earlier decision and reject this proposal.
Lord Campbell of Alloway: I support my noble friend Lord Boyd-Carpenter, as a matter of principle. This is not a question of good unions, bad unions or past practice; nor is it a criticism of the conduct of unions. I accept that the noble Baroness, Lady Turner of Camden, has experience of such matters and dealt with them perfectly properly. It is a question of principle. One simply does not put influential material with a notice for voting. In saying that I am not having a dig at the trade union movement. In my view it is a question of overriding principle.
Lord McCarthy: Would the noble Lord apply those principles to other forms of decision taking? For example, would he say that it should apply to companies' share options and that those involved should not be allowed to say which way people should vote in such circumstances?
Lord Campbell of Alloway: The noble Lord makes a fair request. I would not do so, because I can see a real distinction between any form of electoral ballot such as for local government or a general election, or for a trade union, which is not akin to a building society, as the noble Lord suggested previously. I see a world of difference between the position of a trade union and that of a building society.
Lord Ewing of Kirkford: It ought to be made clear what the ballot under discussion is all about. The ballot is not for the election of trade union officers. It concerns a recommendation for merger between two or more unions. It should be clearly understood that on many occasions the executive council which makes such a recommendation is recommending that its members vote for merger and vote that particular executive council out of a job. We are not talking about vested interest. I speak against the vested

1381
interest argument. We are talking about a rationalisation of the trade union movement. If we consider my industry, the Post Office and telecommunications industry, the argument in favour of one trade union in the Post Office and telecommunications industry has been unanswerable for years.
What the Minister, the Government and the noble Lords, Lord Boyd-Carpenter, and Lord Campbell of Alloway, are saying is that the unions in the Post Office and telecommunications industry ought not to be able to recommend to their members the best way forward not only for the trade union movement but also for the industry that that trade union movement serves. I do not believe that the position has been properly thought out. It is unreasonable to deny that executive councils from the unions involved in merger proposals may submit with the ballot paper a recommendation on how the membership ought to vote.
Lord Boyd-Carpenter: Perhaps the noble Lord will allow me to intervene. So far as I know no one has recommended that the union executive should be denied an opportunity to express its advice and views to its members. All that is being said is that that advice should not be contained in the same document that carries with it the ballot paper. That is the point.
Lord Ewing of Kirkford: Perhaps the noble Lord will accept that I added that that material should be included with the ballot paper. The noble Lord, Lord Murray of Epping Forest, has already answered the argument about sending out the material separately. The position is absolutely ludicrous. The Minister shows a great deal of common sense. He ought to take his common sense one stage further and try to knock some sense into his government colleagues to reconsider the issue.
Baroness Seear: I find it odd that the Government, who are so against being a nanny state, suddenly wish to look after union members as though they had no mind of their own. If union members believe it offensive or wrong that such propaganda should be sent out with the ballot paper, they are perfectly capable of saying so. Why can we not leave it to the union members to protest against such propaganda if they wish? Why do they have to have the law to tell them what they ought to do? It seems extraordinary that a Government who hate to interfere with private deals should wish to do that.
Lord Murray of Epping Forest: When replying to the debate, will the Minister answer a specific question and enlighten me on what might be possible under the legislation? Would it be possible for an executive committee to print this statement at the top of the ballot paper? "We are not allowed by law to print on the ballot paper the views of the executive on this merger. Nor are we allowed to print the views set forth in a resolution carried by our recent annual conference. But we shall be sending a separate communication at a cost to the union members of
1382
£50,000"—the union has 100,000 members —"which you should receive in the near future". Will that statement be allowed under the law?
The Earl of Harrowby: I have great difficulty in agreeing with what has been stated by my noble friends. An instance has been given about share option schemes. If any Member of the Committee is a member of Lloyd's, he will receive sheafs of paper and voting papers in the same envelope every week. I know that there is nothing in the Companies Act which forbids such joint postings. For the life of me, I cannot understand the relevance of the objections in the circumstances to which we have referred.
Viscount Ullswater: First, perhaps I may answer my noble friend Lord Harrowby by saying that unions and companies are two completely different beings. Therefore the laws which govern them are two completely different laws. That is the basis upon which we have worked for many years.
Secondly, perhaps I may deal with the point raised by the noble Lord, Lord Murray of Epping Forest. The answer to him is a straight no, that statement would not be sufficient. The noble Lord, Lord Ewing, and the noble Lord, Lord Murray, say, "Yes, there was a resolution passed at the annual conference that this merger should take place". But they do not say by how many votes it was passed, that it was very close run, or that it had taken 10 years to come about and had only just squeaked in. Therefore we are prepared to allow those recommendations to go in but not with the ballot paper.
Lord Murray of Epping Forest: Perhaps I may clarify my own mind. Is the Minister stating the contents of the law or is he expressing a view of his own?
Viscount Ullswater: I expressed what was not going to be included in the suggestion made by the noble Lord, Lord Murray. That was an expression of my own. I stated to him what I believe is the correct expression of the law. It was, no.
Lord Wedderburn of Charlton: Perhaps the noble Viscount will allow this intervention. The issue is important. Now that the Judicial Committee of this House has expressed the view that judges can consider Hansard, what the noble Viscount says is of increasing importance as time goes on.
Does he take a view on a similar series of statements placed in a second envelope attached to the first envelope? Would that be allowed?
Viscount Ullswater: I believe the law to be straightforward. It is that the voting paper must not contain any statement other than a permitted statement. That will be up to the certification officer to decide.
I believe that a key principle of this Government's reform of industrial relations and trade union law since 1979 has been our willingness to keep that law under review and to come forward with further measures for reform as and when experience shows them to be needed.

1383
Clause 5, and its related provisions in Clause 4 which we tabled at Report stage in another place, illustrate that principle in action. During the course of the recent NALGO ballot on merger with other unions to form the proposed new union, UNISON, the Government received complaints from several individuals who had brought the matter to the attention of their Members of Parliament that the NALGO leadership had chosen to send out its campaigning material with the voting papers. That material was quite clearly designed to influence voters to cast their vote in favour of a merger. It was one sided, and certainly did not present a balanced view of the proposals. Given the real division of opinion within the union, it is unsurprising that some members quite rightly felt anxiety that the existing law did not prevent that.
The amendment before us seeks to allow union leaderships to continue to seek to sway the votes on a crucial issue such as the very future of a union's existence by sending out with voting papers any material including material designed to influence how individuals vote. The Government do not believe, given the experience of the recent NALGO ballot, that that should be allowed to happen. We have heard it argued that voters should know the view of their union's leadership about a merger and should be aware of relevant resolutions of any delegate conference or executive committees. That is fair enough. We do not propose legislation which would prevent that happening. Such material would certainly be supplied to voters provided that it does not go out with the voting papers themselves. Union members have the right to a proper ballot on such matters as the future existence of their union. The law should do everything practical to ensure that union leaderships do not put one-sided campaign material to voters in a way which could unduly influence their decision. We have the chance to prevent that happening in the case of union merger balloting. The amendment seeks to undermine what is proposed.
As regards the amendment, the Government do not share the views of certain noble Lords opposite about the paramount significance of resolutions passed by union delegate conferences or committees on such matters. If we accepted the overwhelming significance of such resolutions, then it could reasonably be asked what need there was for unions to bother balloting their members. Why not leave it all up to the union delegate conferences and union executives to decide those issues on behalf of union members? Why bother to trouble individual members? Furthermore, what assurance could there be that the resolution, or whatever, which was included would also indicate whether it had won the votes of a significant proportion of the delegates or the executive? What if the resolution the leadership chose to include had won no more than the barest majority? Would the union also point that out?
We profoundly disagree with that sort of philosophy which seeks to accord such primacy to delegate conference resolutions or to give union leaders such a free hand to make use of them to persuade voters to cast their votes in a particular way.
1384
Union members must have the right to a proper ballot on matters as important as the future of their union. Where it is practicable to do so the law should ensure that the voters in such a ballot do not get voting papers accompanied by one-sided campaigning material. We have the chance to prevent that happening in the case of union merger balloting, but the amendment seeks to undermine the value of what we propose.
I am grateful for the support that I have found from my noble friends Lord Boyd-Carpenter and Lord Campbell of Alloway. We believe that union members should be able to receive voting papers for union merger ballots without anything other than objective information telling them what the ballot is about and the means of returning the voting paper. That is what Section 100C(5) in Clause 4 would provide. We find the amendment unacceptable, and I hope that the noble Baroness will withdraw it.
Lord McCarthy: Would not the noble Viscount agree that the critical issue is between the degree of regulation and the degree of abuse? The noble Viscount is fond of telling us that companies are not unions and that unions are not companies. But if unions are not companies and companies are not unions, why does that difference justify so much regulation of trade unions without the abuse? Why should he ask us to believe that Lloyd's can be trusted, that Maxwell can be trusted and that he is going to give a fair statement of why people should vote, and do it with the voting paper, but not trade unions? Why should trade unions not be trusted as well as these other people?
Viscount Ullswater: I have given the Committee some evidence of what we consider to be abuse, and this is an opportunity we take to prevent that abuse from occurring again.
Lord Wedderburn of Charlton: Will the noble Viscount put in the Library a transcript of these three alleged sets of complaints made to Members of the other place? There has been a lot of talk about them. They have never been made clear. They did not go to the certification officer. Will he put them in the Library?
Viscount Ullswater: They were complaints to Members of Parliament. They were brought to the attention of my honourable friend in another place, and he is acting upon that information.
Baroness Turner of Camden: I have listened with some dismay to the noble Viscount. He completely fails to understand the way in which unions have been operating in the past quite effectively under legislation that already exists, and without any complaint or abuse. The noble Viscount mentions three members of NALGO who complained to Members of Parliament. It is always open under present legislation for individuals who have complaints to make them to the certification officer. If there are valid complaints about the way in which the procedures have gone, the certification officer has to hold an inquiry into those

1385
complaints. As I understand it, this has not happened in the case of NALGO, and indeed they are very rare instances anyway.
I do not understand why the Minister seems to believe that this strange provision in the Bill somehow gives rights to members. I believe that it takes away a right. We are not talking about a parliamentary election, or an election of individuals. We are talking about a ballot probably to form a new union with a new structure. The individual who votes has a right to know what his leadership or his annual conference is recommending. He does not have to accept that recommendation.
The noble Baroness, Lady Seear, made it clear that individual union members are capable of making up their own minds, but they are at least entitled to know, before they fill in their voting paper and hand in their votes, exactly what their elected leadership thinks. After all, the Government introduced legislation during the last decade which has put constraints on the way in which leaderships are elected. They now have to be elected through postal ballots, and so on. Therefore, presumably even the Government now accept that they are representative.
There has been talk about giving unions back to their members. The Government now come along with this legislation which takes away the right of members to know what their union executive thinks and which, so far from giving extra rights, removes them. I do not accept what the Minister has said. I would like to test the view of the Committee. I put down this amendment thinking that I was going part way to meeting the Government's case, even though I do not accept the Government's case, by simply saying that the text of a motion could be included with the ballot paper. If the Government will not accept even that, I think that we have to test the feelings of the Committee.
6.25 p.m.
On Question, Whether the said amendment (No. 18) shall be agreed to?
Their Lordships divided: Contents, 63; Not-Contents, 120.

Division No. 3

CONTENTS

Addington, L.

Glenamara, L.

Airedale, L.

Graham of Edmonton, L.

Ardwick, L.

Grey, E.

Ashley of Stoke, L.

Hampton, L.

Avebury, L.

Hamwee, B.

Blease, L.

Harrowby, E.

Carmichael of Kelvingrove, L.

Hollis of Heigham, B.

Carter, L.

Howie of Troon, L.

Cledwyn of Penrhos, L.

Jenkins of Putney, L.

Cocks of Hartcliffe, L.

Judd, L.

David, B.

Kilbracken, L.

Dean of Beswick, L. [Teller.]

Kirkhill, L.

Desai, L. [Teller.]

Kissin, L.

Dormand of Easington, L.

Lockwood, B.

Elis-Thomas, L.

McCarthy, L.

Ennals, L.

McIntosh of Haringey, L.

Ewing of Kirkford, L.

McNair, L.

Foot, L.

Mallalieu, B.

Gallacher, L.

Merlyn-Rees, L.

Galpern, L

Molloy, L.

Geraint, L.

Morris of Castle Morris, L

1386

Morris of Kenwood, L.

Russell, E.

Murray of Epping Forest, L.

Seear, B.

Nicol, B.

Sefton of Garston, L.

Parry, L.

Serota, B.

Peston, L.

Stoddart of Swindon, L.

Pitt of Hampstead, L.

Taylor of Gryfe, L.

Prys-Davies, L.

Tordoff, L.

Redesdale, L.

Turner of Camden, B.

Richard, L.

Wedderburn of Charlton, L

Ritchie of Dundee, L.

White, B.

Rochester, L.

NOT-CONTENTS

Acton, L.

Kitchener, E.

Allenby of Megiddo, V.

Lauderdale, E.

Arran, E.

Lawrence, L.

Ashbourne, L.

Long, V.

Astor, V.

Lucas of Chilworth, L.

Astor of Hever, L.

Lyell, L.

Auckland, L.

McColl of Dulwich, L.

Banbury of Southam, L.

Mackay of Ardbrecknish, L

Belstead, L.

Mackay of Clashfern, L. [Lord Chancellor]

Bessborough, E.

Birdwood, L.

Manchester, D.

Blatch, B.

Marsh, L.

Borthwick, L.

Mersey, V.

Boyd-Carpenter, L.

Milverton, L.

Bradford, E.

Monk Bretton, L.

Braine of Wheatley, L.

Mottistone, L.

Brookeborough, V.

Mountevans, L.

Brougham and Vaux, L.

Munster, E.

Butterworth, L.

Murton of Lindisfarne, L.

Cadman, L.

Nelson of Stafford, L.

Caithness, E.

Norfolk, D.

Campbell of Alloway, L.

Norrie, L.

Carlisle of Bucklow, L.

Northbourne, L.

Carnegy of Lour, B.

Orkney, E.

Carnock, L.

Orr-Ewing, L.

Chalker of Wallasey, B.

Oxfuird, V.

Clark of Kempston, L

Park of Monmouth, B.

Colville of Culross, V.

Pearson of Rannoch, L.

Colwyn, L.

Pender, L.

Craigavon, V.

Perry of Southwark, B.

Cranborne, V.

Peyton of Yeovil, L.

Crathorne, L.

Plumb, L.

Cumberlege, B.

Prior, L.

Darcy (de Knayth), B.

Rankeillour, L.

Davidson, V.

Reay, L.

Denton of Wakefield, B.

Renfrew of Kaimsthorn, L.

Elles, B.

Renton, L.

Elliot of Harwood, B.

Renwick, L.

Erroll, E.

Rodger of Earlsferry, L.

Ferrers, E.

St. Davids, V.

Flather, B.

Saltoun of Abernethy, Ly.

Fraser of Carmyllie, L.

Seccombe, B.

Gardner of Parkes, B.

Selborne, E.

Goschen, V.

Selsdon, L.

Gray of Contin, L.

Simon of Glaisdale, L.

Hailsham of Saint Marylebone, L.

Skelmersdale, L.

Stewartby, L.

Halsbury, E.

Strange, B.

Harmar-Nicholls, L.

Strathclyde, L.

Harvington, L.

Strathmore and Kinghorne, E. [Teller.]

Hayhoe, L.

Henley, L.

Sudeley, L.

Hesketh, L. [Teller.]

Teviot, L.

HolmPatrick, L.

Thomas of Gwydir, L.

Hooper, B.

Trumpington, B.

Howe, E.

Ullswater, V.

Hylton-Foster, B.

Vaux of Harrowden, L.

Jeffreys, L.

Vivian, L.

Jenkin of Roding, L.

Wade of Chorlton, L.

Johnston of Rockport, L.

Wharton, B.

Kimball, L.

Whitelaw, V.

Kinloss, Ly.

Resolved in the negative, and amendment disagreed to accordingly.
6.33 p.m.
Clause 5 agreed to.
Clause 6 [Confidentiality of trade union's register of members' names and addresses]:
Viscount Ullswater Viscount Ullswater moved Amendment No. 19:
Page 11, leave out lines 39 to 42.
The noble Viscount said: This technical amendment removes a subsection from Clause 6 which has proved to be otiose. Clause 6, as the Committee will be aware, was added to this Bill at Report stage in another place, in response to points made by the Opposition and accepted by the Government. Opposition spokesmen had argued that, although the integrity of the scrutineer (or independent person) was not to be questioned, the issue of confidentiality could be of such vital importance to some individuals—the example of prison officers in Northern Ireland was cited—that a provision should be ensured in primary legislation to reinforce its importance.
That is what Clause 6 achieves. It acts as an essentially preventive measure by ensuring that trade unions impose a duty of confidentiality on any scrutineer or independent person whom they appoint.
Clause 6 inserts a new Section 24A into the 1992 Act. Subsection (3) of that new Section 24A provides that the duty of a union to impose a duty of confidentiality on a scrutineer or independent person whom it appoints may be discharged by the parent union in the case of a branch of a union which is also a union in its own right.
As the Committee will be aware, this is a standard provision in industrial relations legislation which prevents the unnecessary duplication of tasks in certain circumstances. However, it is not applicable in this case, and therefore in this technical amendment we seek its removal.
Any union branch which is also a union and which holds a ballot to which the provisions in Clause 6 apply—that is, an executive election, merger or political fund ballot—will necessarily appoint its own scrutineer and independent person to oversee that ballot. Where the ballot is being held by the parent union, then the parent union will appoint the scrutineer and make available its register. The situation will not arise where a parent union could discharge this duty on behalf of a branch.
This amendment therefore removes what has demonstrated itself to be a redundant provision. I commend it to the Committee.
Baroness Turner of Camden: I thank the Minister for explaining what the amendment is about; I was not clear until I heard his explanation. I should like to read what he said in Hansard tomorrow because it struck me as being fairly complicated. In the meantime, we offer no objection to the amendment.
On Question, amendment agreed to.
Viscount Ullswater Viscount Ullswater moved Amendment No. 20:
Page 12, line 10, leave out ("required") and insert ("requested by the Certification Officer").
The noble Viscount said: In moving Amendment No. 20, it may be for the convenience of the Committee if I speak also to Amendments Nos. 21 and 22 in my name. Again, Amendment No. 20 is little
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more than a technical amendment. Clause 6 requires a trade union to place a scrutineer or independent person appointed to oversee certain ballots under a duty of confidentiality with regard to the union's register of members. That duty of confidentiality is defined as a duty not to disclose, and to take steps to ensure that no one else discloses, any name or address on the register, except in certain permitted circumstances—those circumstances being where it is required for the purposes of the discharge of any of the functions of the certification officer.
The use of the term "required" restricts the provision to those situations where statute enables the certification officer to require information from a union. That is where he has a sanction if the union does not do so: for example, in the exercise of his new investigatory powers under Clause 10 of this Bill. It would not cover situations where statute provides him with no power to require information, but he might nonetheless need to request it in the exercise of his duties: for example, in the investigation of a complaint that a union had not properly conducted an executive election. It is equally important in either case that the scrutineer or independent person, if he feels it right, should be able to supply the certification officer with the information that he needs.
Where the certification officer has the power to require that information be provided, he will obviously as a first step have to request that the union provide the information. The term "requested" is therefore more appropriate in this provision as it covers both those situations where he may require information and those where he may only request it.
The certification officer will only appoint an inspector when he has a corresponding power to investigate and require the production of information. The clause therefore retains the term "require" in the case of an inspector who seeks information.
These technical amendments will make Clause 6 more workable for all those concerned. I commend them to the Committee.
Baroness Turner of Camden: I should like to thank the Minister for his explanation of these technical amendments. We should like to consider the explanation tomorrow and in the meantime we offer no objection to the amendment.
On Question, amendment agreed to.
Viscount Ullswater Viscount Ullswater moved Amendment No. 21:
Page 12, line 11, leave out from second ("or) to ("or") in line 12 and insert ("his functions").
On Question, amendment agreed to.
Viscount Ullswater Viscount Ullswater moved Amendment No. 22:
Page 12, line 12, after ("or") insert (" it is required for the purposes of the discharge of any of the functions").
On Question, amendment agreed to.
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 23:
Page 12, line 25, after ("person") insert ("and, in the circumstances of paragraph (b) of subsection (5), on the Certification Officer or his inspector,").
The noble Lord said: I should like to speak also to Amendment No. 25. Both amendments concern the certification officer, the subject of the Minister's amendments.
The first amendment inserts an obligation of confidentiality on the part of the certification officer. The second amendment raises the question of confidentiality and the functions of the certification officer in the trade union law that the Government are intent on making in the Bill.
The first point is simply stated. I apprehend that the certification officer still has the trust of the major part of the trade union movement. The post was created in 1975 out of the ashes of the registrar of friendly societies. He has gradually acquired a number of functions. Nothing that I say is intended to criticise the certification officer; rather I should like to suggest that the very fact that one has to consider his position as stated on page 12 in relation to the doctrine of confidentiality in Clause 6 and the proposal that he should carry out a variety of functions, means that his relationship with the trade union movement will be put in jeopardy. Such loss of confidence would be a loss for the trade union movement and the country.
If there is to be a doctrine of confidentiality, there are situations where it has to be applied to the information gathered by the certification officer or his inspector, especially when one bears in mind that Clause 24A(5)(b) includes any functions of an inspector that can be required.
I should like to suggest that noble Lords look at the amendment in the context of the certification officer's functions. It is extraordinary—and this is not necessarily a criticism—that, in this pragmatic and constitution-free country, here is someone who has functions which are judicial, administrative and executive, and which are now to be investigatory. The absence of a separation of powers would not be harmful, however, so long as new powers did not damage what the institution can accomplish.
There are four main headings of the functions of the certification officer that have been acquired in a higgledy-piggledy fashion since 1975. It is the introduction of the fourth strand that may make the garment unravel. First, he is an administration officer. He certifies the instrument of amalgamation and transfers. It is often not observed by commentators, but a most important function is the granting of exemptions to trade union superannuation funds from certain regulatory conditions. There is no appeal because those functions are administrative. He acts for the Secretary of State in granting funds for ballots. That is a function that will be wound up if the Government have their way. He gives information to trade unions about other bodies. He is issued with a guide on the CROTUM. He is the controlling process of the annual return of trading. Those are all administrative functions.
He carries out a mixture of administrative and judicial functions. He keeps a list of trade unions and determines independence of trade unions. There can be an appeal to the employment appeal tribunal in relation to judicial functions.
Purely judicial functions include hearing complaints about trade union elections, political funds and amalgamations. In some cases concerning elections he has a jurisdiction parallel to that of the High Court. In regard to political fund ballots there can be an appeal to the employment appeal tribunal.
I have always stated that it would be dangerous to add to those functions because one function might be spoilt by the addition of another. The Bill adds a fourth heading of investigatory functions. In Clauses 10 and 11 there is a right to appoint inspectors. I am sure that the Minister will agree that those provisions parallel the Companies Acts; they are word for word of the Companies Acts, with one very important difference, which is something that the Government did not dare to do. In the Companies Acts the inspectors are appointed by the Secretary of State for Trade. The logical parallel, had the Government dared to do it, would be for the inspectors to be appointed by the Secretary of State for Employment. However they are appointed by the certification officer who is dragged in like a special machine to solve the Government's problem of how to get investigatory functions in place against trade unions. The Minister may not agree with me but that is how the situation appears. There is more to follow.
When there is to be a prosecution of the enlarged offences under Section 45, who decides in Scotland whether there is enough evidence for a prosecution? It is the Procurator Fiscal. By parallel, who should it be in Britain? It should be the Crown Prosecution Service or the Attorney General or some other legal officer; but, no, it is the certification officer. He is given the task not only of appointing inspectors with Companies Act powers but also of deciding whether or not to justify a prosecution.
The number of problems that would arise is enormous. Does the certification officer have to do what it is said institutions in the City do when different functions are performed in one bank or clearing house—that is, does he build a Chinese wall so that information known to some parts of the enterprise is not known to the other? Suppose that the staff of the certification officer acquire information that is reported to the certification officer and at the same time a member brings a case, for example under the election processes. Is the certification officer allowed to know of those facts? We must receive an answer to that question. The Government must have thought about the situation. Is the certification officer allowed to know everything that has been acquired for one function in his offices for the purpose of the others? If that is the case, I submit that the matter has gone too far.
It has been difficult to deal with the situation in the amendment. Amendment No. 25 is a probing amendment, even though it is technical. I have tried, rather clumsily, to divide up the certification officer's tasks under two headings and to ensure that there is some confidentiality between functions. I am asking specifically for a requirement of confidentiality to be stated in the Bill.
A broader and more important question is whether the Government will respond to the situation that they

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alone have created. I assume that they will get their way and make the certification officer the maid of all work for trade union law; judicial, administrative, investigatory, prosecuting and executive. Having done so, what are the Government going to do about information which the certification officer receives about different functions? I beg to move.
Baroness Turner of Camden: I rise to support my noble friend lest it should be thought that the amendment does not have the support of our Front Bench. It does. I think that he has made some very important points. He is quite right to say that currently the certification officer is held in reasonable regard by the trade union movement and the relationship is a good one. But if the certification officer also has investigative functions and prosecuting functions, that is another matter altogether and it may give rise to the kind of difficulties to which my noble friend has referred. For those reasons, we support the amendment.
Viscount Ullswater: I am afraid that these amendments although eloquently moved by the noble Lord, Lord Wedderburn, are unacceptable to the Government, as they misunderstand the essential nature of the office of the certification officer. I have already set out the purpose that Clause 6 is designed to achieve. It responds to the concerns expressed when Clause 1 was debated in another place lest there might be a risk to the confidentiality of individual union members if their membership details were passed to a third party, in the shape of the scrutineer. The same concern applies to the independent person, who will also have access to the union register, not only in the case of election ballots, but also in the case of union merger and political fund ballots.
I must emphasise that no one was questioning the probity of the scrutineer in voicing this concern. It was simply that in certain cases—such as that of a member of the Prison Officers' Association in Northern Ireland—the security of personal information is of the utmost importance. We were asked, therefore, to amend the Bill to ensure that the importance of confidentiality was emphasised in law, in order to prevent even inadvertent breaches of confidentiality.
That was done at Report stage in another place, where the new clause was accepted with thanks but no other comment. Against that background, I must confess to some surprise that amendments such as these should be tabled at this stage.
The duty of confidentiality is defined in the provision as a duty not to disclose, and to take all reasonable steps to ensure that no one else discloses, any name or address on the register except in permitted circumstances. The permitted circumstances include where disclosure is required or requested by the certification officer, or by an inspector appointed by him, in the execution of any of his functions.
It is obviously essential that the certification officer should not be prevented from acquiring information that he might need in the course of his duties, for those duties are important and serious ones. The certification officer is appointed by the Secretary of
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State and has administrative and quasi-judicial functions to regulate and adjudicate on various activities of trade unions and employers' associations. His activities are significant enough to require him to report annually to Parliament.
The certification officer does not need to be placed under a duty of confidentiality when he acquires union membership data from the scrutineer or independent person, as suggested by Amendment No. 23. He is by virtue of his appointment discreet and will inevitably have due regard to confidentiality. He will be aware that the register will be impressed with a duty of confidentiality. I must strongly resist any implication to the contrary. He has after all been entrusted with significant volumes of confidential union data over the years, with no suggestion that he has treated them with anything other than due confidentiality. Nor, I note, is there in the amendment any suggestion that information supplied direct to the scrutineer by the union should be covered by a formal duty of confidentiality. That is right, for none is necessary.
Amendment No. 25 is equally, if not more, undesirable. The certification officer has a number of functions and activities. These are not compartmentalised, nor is there any reason why they should be. There is no good reason why, if he acquires information in the course of one investigation which proves to be germane to another, he should not make the necessary use of it. In doing so he will, after all, be acting in the best interests of trade unions and their members. To prohibit the use of information—which might, after all, be beneficial to the union concerned—could only hinder the valuable work undertaken by the certification officer. For those reasons, I hope that the noble Lord will be persuaded to withdraw his amendment.
Lord Wedderburn of Charlton: I wish I had more time to read the Minister's interesting statement. The idea that the amendments have come improperly at this stage is something which, as Lord Justice Asquith once said, I must bear with such fortitude as I can muster. But I think that we shall have to look again at some of the other statements. If this House is to do what it should do, we must look at this matter—because nobody has looked at it before. That is always a good starting point.
What does the Minister mean when he says that the certification officer will be all right because everything is covered "by virtue of his appointment"? Can we put that in the Library? I have not seen it. Can we have a look at the terms of his appointment? He says that I misunderstand the essential nature of the certification officer and that he is to be allowed to make use of any information which he has acquired in any of the functions for all of his functions, one of the reasons being—if I do not misrepresent the Minister, and I hope that I do not—that it might be beneficial to the trade union.
Where is the individual? I am talking about the case where an individual has brought a case against the union under the elections or perhaps political fund jurisdiction, which is a judicial hearing. He will not expect the certification officer at the end of the hearing to go into the backroom and be given additional

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information by way of evidence from one of his investigators who was on the job on the same union on the same matter. It is quite absurd for the Government to take that posture. I say that sincerely to the Minister. I know that it is not his fault. He has a pretty rum brief on this one. We are talking of a man whom we appoint to a judicial office. Some of them are all mixed up—I make no bones about the fact—and that is why it is so dangerous. He is a judicial character put there with an appeal to another body, perhaps the EAT (the Employment Appeals Tribunal), the Court of Appeal, and so on. When it comes to look at his case, the Court of Appeal says: "Oh, I see. He has decided it this way because the inspector in the backroom told him what it was all about after he had heard the hearing in which the individual complainant was listened to and sent away". I cannot believe that the Government mean that.
Let us be blunt about it. The Government have got themselves into an almighty morass by trying to use the certification officer again. It is easily done; he has been used so often in the past for other functions. But, by trying to use him here—as well as in the three functions he has had—in administrative and judicial capacities, by putting him in the position of an investigator with a pack of inspectors and in the position (in England of all places) of the Procurator Fiscal, the Government have got themselves into a terrible mess. I beg the noble Viscount to have urgent discussions with those who finally control such matters and to let us think about it by Report stage, by which time we shall have read his statement here and have been able to think about it.
I believe that the noble Baroness wishes to intervene before I withdraw the amendment. I will let her interrupt me if that is the correct procedure.
Baroness Seear: The Government ought to take the matter away and look at it. The noble Lord, Lord Wedderburn, has made a point which has simply been overlooked. If one has a judicial function, it can very easily come into conflict with one's administrative function. A man cannot have Chinese walls in his own mind. That is just not possible. Sometimes there may be two jobs which cannot be combined in one person. I do not have evidence of that, but it seems to me very plausible that it may be true. But I ask the Government not simply to turn down the amendment but to take it away, have discussions with the noble Lord, Lord Wedderburn, and think about it again.
Lord Henderson of Brompton: Perhaps the Minister could help the Committee, or at least a Member of the Committee, by telling us the qualifications of the certification officer. It would be very interesting to know that.
Viscount Ullswater: Perhaps I may answer the concerns of the noble Baroness, Lady Seear, and touch on the point of the Chinese walls mentioned by the noble Lord, Lord Wedderburn. The whole purpose of Chinese walls is to safeguard different and differing interests. What we are concerned about here is a single interest—the best interests of the trade
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union members. It is therefore not necessary or appropriate to separate the certification officer's function. The information concerned here is union register information. It is hard to see how this could be relevant or harmful to an investigation.
I understand that the certification officer is appointed by the Secretary of State. I would need to inquire of the relevant facts of the appointment and write to the noble Lord. I shall place a copy of that letter in the Library.
7 p.m.
Lord McCarthy: In answer to that question, the noble Lord, Lord Henderson, might like to know, with regard to the qualifications of the certification officer, that the certification officer is a Balliol man who read PPE.
Lord Henderson of Brompton: Do I have to assume that he has no legal qualifications?
Lord McCarthy: That is quite right.
Viscount Ullswater: Perhaps I may help the Committee while we are on this point. The certification officer is appointed by the Secretary of State in consultation with ACAS, the tripartite body. It is a personal appointment. The individual is appointed to execute the functions set out in the statute.
Lord Wedderburn of Chariton: Perhaps I may preface my request to the Committee about the fate of the amendment by saying that I have obviously failed to get the point through to the Minister about what the problem is. When he tells us, as a good corporatist doctrine, that the only problem is the interests of the trade union members, that is no doubt true as far as concerns the administration functions. But when there is a judicial function there are two interests because the individual is complaining that the union has got it wrong. The certification officer is then a judge. He cannot say that all he has to do is to look to the interests of the union. He has to settle the issue according to law and according to the evidence in front of him.
Let us look with this in mind. If the certification officer looks at evidence which is not before him—evidence he has acquired or his investigators have acquired—on which he has launched a prosecution perhaps which is not known to the individual in the judicial hearing ("judicial hearing" in the sense of a complaint about elections, the political fund and the like), it is highly likely, unless the Government try to exclude the jurisdiction, which these days is almost impossible, that most of these cases will be dealt with by judges under judicial review. I do not think that they would tolerate it. However, that is just a guess.
Viscount Ullswater: Perhaps I may reflect further on the words of the noble Lord and the noble Baroness. Whereas I make no commitment at all to bringing anything back, I should like the opportunity, afforded by the noble Lord if he would care to withdraw the amendment, to examine very closely what he has said and what he has continued to say.
Lord Wedderburn of Charlton: I am grateful to the Minister. I will simply speed him in that direction by saying that at the moment the certification officer with mixed judicial and administrative functions is three-into-one, and three-into-one is okay. But four-into-one will not go. That is the thought he should have in his mind. With that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Wedderburn of Charlton Lord Wedderburn of Charlton had given notice of his intention to move Amendment No. 24:
Page 12, line 28, leave out from ("application") to end of line 34 and insert ("to the court, either—

(a) under section 26 of this Act, or

(b) by way of proceedings for a breach of confidence or breach of fiduciary duty, or

to an industrial tribunal which may award such compensation as it considers just and equitable in all the circumstances of the case.".").
The noble Lord said: This amendment also relates to the certification officer. I say that much in order to have it on the record, but I think it would be wrong of me, after the debate we have just had and the Minister saying what he has said, to move it.
[Amendment No. 24 not moved.]
[Amendment No. 25 not moved.]
Clause 6, as amended, agreed to.
Clause 7 [Ballots: repeal of provisions for financial assistance and use of employers' premises]:
Lord McCarthy Lord McCarthy moved Amendment No. 26:
Page 12, line 35, after ("115") insert ("(2) (a)").
The noble Lord said: In moving this amendment perhaps I may say that we do not intend to move Amendment No. 27. We are now on the infamous Clause 7 which repeals financial assistance for ballots. The objective of the amendment is to narrow down the area in which the money ceases to come so that the money only ceases to come to those ballots which are concerned in effect with industrial action. It exempts that part of Section 115 which deals with strike ballots so that the money does not go on strikes but remains to be given, for example, for union elections, for rule changes, for political funds, for amalgamations and for other purposes specified by the Secretary of State. We argue this on grounds of equity and on the grounds that the Government have, in so far as they have given reasons for taking this money away, given the reason that it would be improper to give money to support anything which might end up with industrial action.
On 16th February 1993, the Minister of State in another place said:
"In December, we announced our intention to phase out public subsidy for trade union ballots. The reasoning behind that decision was made clear—with the aim of ballot funding achieved and now that postal balloting on major issues affecting union members is widespread and well accepted, the scheme does not merit continued public subsidy".— [Official Report, Commons, 16/2/93; col. 162.]
Naturally enough the explanation advanced by the Minister of State produced somewhat of an uproar in another place. As a result he was challenged by the Member for Renfrew, West and Inverclyde, who said that surely the Minister could think of a better reason. The Minister replied:
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"I know that the hon. Member for Renfrew, West and Inverclyde (Mr. Graham) works hard on behalf of his constituents and promotes many causes involving public expenditure".
Here it comes:
"If we have to decide between using public funds to subsidise ballots on strike action or using them on the many other worthy causes that the hon. Gentleman draws to the attention of the House, I am sure that he will agree that we are right to consider that the continued funding of the scheme is no longer a priority".—[Official Report, Commons, 16/2/93; col. 163.]
That is the only real argument that I have managed to uncover as to why the Government have done this thing. It is a bad year for the PSBR; we all have to make cuts; and now we have imposed postal ballots, particularly in relation to strikes, we cannot really be expected to give the money. This despite the fact that in another part of the Bill, as the Committee knows only too well, the Government have considerably increased the cost of these things by making strikes necessarily made lawful by a postal ballot. The unions do not have the alternative of having some other form of balloting; they have to have a postal ballot.
We are saying that this is not a justifiable argument. We are saying that there may be some case for the Government suggesting that they find it difficult to provide money to have a ballot which might end up producing a strike. That to them, I suppose, would be a subsidy for strikes—a public subsidy ending up in a strike. But that has absolutely nothing to do with the vast flow of this money—£4.2 million of this money—which does not go in strikes at all. In fact it has been estimated that around 80 per cent. of this money, which pays for somewhat less than 50 per cent. of the overall cost of the balloting process that has now been compulsorily imposed on trade unions, goes in union elections. A moment's reflection reveals that that would be the case. A small union of about 100,000 members spends about £200,000 a year on elections. About half this money is paid out of the fund. The election costs for a union are now very considerable.
There is another point which the Committee must take on board. Most people feel that the Government's decision to cancel this provision with effect from 1st April 1996 means, as it were, that trade unions will be able to go on using the money and having available to them the ballot provision until 1st April 1996. That is not so. The Government intend to cut the overall payments made by the certification officer by a quarter if the date of the ballot falls after 31st March 1993 and before 1st April 1994. So before this Bill is law—a statute—or has completed its passage through this House presumably, the Government will begin to implement the consequences of their decision. They will cut the figure by a half for a ballot which falls on 31st March 1994 but before 1st April 1995 and by three-quarters if the date of the ballot falls after 31st March 1995. The scheme is abolished with effect from 1st April 1996.
We say that that is quite simply a breach of faith and that unions are being placed between the upper and the nether millstone. Throughout this and previous Bills the Government are legislating to raise the cost of running trade unions. The increases which will come about as a result of the new duties of the

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scrutineer and other people will be very significant for trade unions. But while in Clauses 3, 4, 5, 7, 19, and so on, clearly expenditure increases are imposed on trade unions, income reductions arise in Clause 14. Yet the argument of the Government—in so far as there is an argument—relates so far exclusively to strike ballots. That is the point of the amendment; namely, that the Government exclude strike ballots and leave the rest of the money in place. I beg to move.
Lord Rochester: In moving this amendment the noble Lord, Lord McCarthy, has clearly described the history of the funding scheme and the large amounts refunded to trade unions in the past few years. I believe that the figure in 1991 totalled more than £4 million. That is to enable them to meet the increasingly burdensome legal obligations on balloting following the 1988 Act.
It must be acknowledged that when the funding was first introduced some unions were unwilling to accept it. However, the situation today is very different from what it was then. At the same time as the unions now learn that funding is to be phased out, under this Bill they are being obliged to spend even more on ballots, for in future virtually all ballots will be postal and subject to independent scrutiny.
Even at the time of the 1988 Bill I recall saying that, because independently supervised postal ballots would prove to be very costly for trade unions, my noble friends and I considered that the Government were being parsimonious and shortsighted in refusing to allow public funds to be used to help finance the cost of employing independent scrutineers. Now financial assistance is to be withdrawn altogether and I deplore that. I also greatly deplore the fact that Clause 7 was introduced at Report stage in another place out of the blue and without any consultation beforehand.
As regards the amendment, as the noble Lord, Lord McCarthy, has said, it is limited in scope. Its object is to confine continuing funding, as I understand it, to ballots other than those concerned either with proposals made by an employer in relation to contractual terms of employment or with the calling or the ending of a strike or other industrial action. Funding would thus still be available particularly for elections which unions are under a statutory duty to hold for certain offices. As the noble Lord has said, those have to take place at regular intervals and would thus incur the great bulk of expenditure on ballots. I hope that the Committee and the Government will consider it reasonable that they continue to give this limited financial support to organisations required to implement legislation that the Government themselves have introduced.
7.15 p.m.
Viscount Ullswater: This amendment is not acceptable to the Government. Clause 7 repeals Section 115 of the Trade Union Reform and Labour Relations (Consolidation) Act 1992 in its entirety. The
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provision is being repealed because it will become completely redundant in 1996 when the trade union ballot funding scheme has been phased out.
The effect of this amendment would be to repeal only one small part of Section 115, as the noble Lord, Lord McCarthy, has outlined. It would result in a power for the Secretary of State to establish by regulations a ballot funding scheme which would be remarkably like the scheme that is currently in operation, save only that it would no longer provide refunds for ballots which were concerned with employers' offers on terms and conditions or the calling for or ending of industrial action.
The amendment would achieve nothing more than that. The trade union ballot funding scheme will be phased out regardless of this clause. The statutory instrument which sets out the phasing out arrangements has been laid before this House and will come into effect on 1st April.
I say to the noble Lord, Lord Rochester, that the decision was made in the wake of the public expenditure settlement when consultation was neither necessary nor appropriate and our priority was to announce the decision at the earliest opportunity to enable trade unions to plan for their future in the full knowledge of the facts.
The scheme is not being abolished in order to prevent unions from holding strike ballots. It is being abolished because it was created as an incentive to postal balloting when the practice was not a statutory obligation. There is no case to continue that now. I believe that the noble Lord, Lord Rochester, drew attention to the fact that initially it was not welcomed by the TUC. I believe that during the course of its history it has never been supported by that body.
However, I believe that the noble Lord, Lord McCarthy, is quite right. I believe that he and the noble Lord, Lord Rochester, said that over £4 million was the amount used last year in support of ballots. However, given the claims on public expenditure, funds for union ballots just cannot be justified any longer.
I believe that we have made our decision clear. We are ending the public subsidy for trade union ballots because there is no case for continuing to devote public money to ballots which should be financed by the unions themselves. Balloting is well established, and continued public money can no longer be justified.
Against that background, we have no need of the power to run the scheme. We have no intention of reintroducing the scheme. We most certainly have no need of a power to run a slightly different scheme, for we have no intention of introducing a new scheme. For those reasons, we cannot accept this amendment.
Lord McCarthy: The Government are quite amazing. The Minister said that he could not accept the amendment because they have done the regulations. If they have done them they can undo them. He has phased in his regulations. He could phase them out. Most of us did not know whether the regulations had been phased in or out. If the Government wanted to be reasonable and to accept the argument which lies behind the amendment, it

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would be perfectly easy for them to say to us at this time: "Withdraw your amendment. We shall find a way of dealing with the matter and we will come back at Report stage". All this nonsense of phasing in and out had nothing whatever to do with it. They are the Government and they can bring in or take away regulations. They can do what they like.
The Minister said that the subsidy for ballots must now be ended because this was introduced as an incentive. In other words, the Government have said, "Come into my parlour. Come this way and we will pay you for it. Don't worry about what we are doing. Accept it. Participate—and when you have all participated, we'll cut you off at the knees". That is the Government's policy. What a fine way of carrying on. The very fact that people have been persuaded to come into the parlour by that process means that they can now be done out of the money.
In any case, if that was the Government's argument, why have they only just thought of it? The Government could have done this in 1984. All the requirements became compulsory in 1984, but the Government have let things go on. What an amazing waste of money. Just think of all the money that has gone down the drain since 1985 and 1986.
What is happening now is a function of two things. First, as I have said, it is because the poor old PSBR is in a very dangerous state this year—so the Government are acting in this way to save four million quid. Secondly, in every year and in every way the Government find ways of annoying, antagonising and running down the trade unions and that is why we intend to divide the Committee.
7.21 p.m.
On Question, Whether the said amendment (No. 26) shall be agreed to?
Their Lordships divided: Contents, 42; Not-Contents, 84.

Division No. 4

CONTENTS

Acton, L.

Lockwood, B.

Airedale, L.

McCarthy, L.

Ashley of Stoke, L.

McIntosh of Haringey, L.

Avebury, L.

McNair, L.

Blease, L.

Meston, L.

Carmichael of Kelvingrove, L.

Monson, L.

Dean of Beswick, L.

Morris of Castle Morris, L.

Desai, L. [Teller.]

Murray of Epping Forest, L.

Dormand of Easington, L.

Nicol, B.

Eatwell, L.

Perry of Walton, L.

Galpern, L.

Peston, L.

Geraint, L.

Pitt of Hampstead, L.

Graham of Edmonton, L.

Prys-Davies, L.

Grey, E.

Rochester, L. [Teller.]

Hamwee, B.

Russell, E.

Henderson of Brompton, L.

Seear, B.

Hollis of Heigham, B.

Sefton of Garston, L.

Houghton of Sowerby, L.

Taylor of Gryfe, L.

Howie of Troon, L.

Tordoff, L.

Judd, L.

Turner of Camden, B.

Kilbracken, L.

Wedderburn of Charlton, L.

NOT-CONTENTS

Allenby of Megiddo, V.

Bessborough, E.

Arran, E.

Blatch, B.

Astor, V.

Borthwick, L.

Astor of Hever, L.

Boyd-Carpenter, L.

Auckland, L.

Braine of Wheatley, L.

Belstead, L.

Brookeborough, V.

1400

Brougham and Vaux, L.

Lyell, L.

Butterworth, L.

Mackay of Ardbrecknish, L. [Lord Chancellor.]

Cadman, L.

Caithness, E.

Manchester, D.

Carnegy of Lour, B.

Marlesford, L.

Carnock, L.

Mersey, V.

Chalker of Wallasey, B.

Monk Bretton, L.

Clark of Kempston, L.

Mottistone, L.

Colville of Culross, V.

Mountevans, L.

Colwyn, L.

Murton of Lindisfarne, L.

Cork and Orrery, E.

Norfolk, D.

Cranborne, V.

Oxfuird, V.

Crathorne, L.

Park of Monmouth, B.

Cumberlege, B.

Pearson of Rannoch, L.

Denton of Wakefield, B.

Pender, L.

Dilhorne, V.

Perry of Southwark, B.

Elles, B.

Plumb, L.

Elliot of Harwood, B.

Reay, L.

Elliott of Morpeth, L.

Renton, L.

Ferrers, E.

Renwick, L.

Flather, B.

Rodger of Earlsferry, L.

Fraser of Carmyllie, L.

St. Davids, V.

Goschen, V.

Seccombe, B.

Gray, L.

Selborne, E.

Gray of Contin, L.

Simon of Glaisdale, L.

Halsbury, E.

Skelmersdale, L.

Hayhoe, L.

Slim, V.

Hayter, L.

Stewartby, L.

Henley, L.

Strange, B.

HolmPatrick, L.

Strathclyde, L.

Hothfield, L.

Strathmore and Kinghorne, E. [Teller.]

Howe, E.

Hylton-Foster, B.

Thomas of Gwydir, L.

Jeffreys, L.

Trumpington, B.

Jenkin of Roding, L.

Ullswater, V.

Kitchener, E.

Vivian, L.

Long, V. [Teller.]

Wade of Chorlton, L.

Resolved in the negative, and amendment disagreed to accordingly.
[Amendments Nos. 27 and 28 not moved.]
Clause 7 agreed to.
Viscount Goschen: I beg to move that the House be now resumed. In moving this Motion, I suggest that the Committee stage on the Bill be resumed again at
8.30 p.m.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Penalty for Murder Bill [H.L.]
7.30 p.m.
Lord Ashley of Stoke: My Lords, I beg to move that the Bill be now read a third time.
My main purpose this evening is to thank those noble Lords who spoke in the debate on 8th February in what I believe was one of the finest debates that I have heard in either place. There were some valuable and distinguished speeches. I appreciated them greatly. Every noble Lord who spoke from all sides of the House applauded the Bill. I should also like to thank the noble and learned Lord the Lord Chief Justice for his message of support for the Bill. That was warmly appreciated.
I do not intend to keep the House by repeating the arguments that I used on Second Reading. It would be impossible to improve upon the speeches made by so many distinguished noble Lords, some of whom held senior posts in the judiciary. My main purpose in bringing forward the subject was to help those

1401
battered women who were so provoked by domestic violence that they reacted and killed their spouses in the heat of the moment, and not to sentence those people, and, let us say, mercy killers—a man perhaps driven to kill his wife, who is in great pain and who begs to be released from a terminal illness—to the same sentence as a calculated assassin. That is wrong.
The issue of the mandatory life sentence goes much wider than those groups. It is one of tremendous significance in all cases of murder. I should emphasise that I am not against life sentences. In fact, I favour them strongly, but I want them reserved for especially outrageous murders.
The Bill does not remove the power of the courts to impose a life sentence. It releases the courts from the obligation to impose the life sentence when it is inappropriate. If there is any debate, I shall be more than delighted to speak at greater length and to try to answer any points raised. I am grateful to noble Lords for listening to my speech. I beg to move.
Moved, That the Bill be now read a third time.—(Lord Ashley of Stoke.)
Lord Boyd-Carpenter: My Lords, I am bound to say that I am not at all happy, as the noble Lord, Lord Ashley of Stoke, knows, about the substance of the Bill or the way in which it has been handled. By that I mean no reflection whatever on him. I feel that the machinery of the House has not operated sensibly in respect of what I believe the noble Lord will agree is an important measure.
As your Lordships may recall, it was originally suggested on 9th March that Second Reading should go on the nod and the Committee stage should be dispensed with. It was only the fact that I objected to that procedure that caused the matter then to be debated.
Lord Graham of Edmonton: My Lords, will the noble Lord reflect that on 9th March we had the Report stage? Second Reading had taken place some weeks before.
Lord Boyd-Carpenter: My Lords, the noble Lord is wrong. The attempt to have Second Reading was on 9th March. I am sorry, I have Hansard here. The noble Lord is not often wrong, but he is wrong now. There was an attempt to get the Second Reading through on the nod and to have the Committee stage dispensed with. I am sure that he will agree with me—the fact that he has seen fit to intervene suggests that—this is an important matter for your Lordships' House, with its ultimate responsibility for law and order.
It is an important measure. We did not have an opportunity to discuss it on Second Reading. An attempt was made to have the Committee stage dispensed with. That was fortunately frustrated. We then had an extraordinary discussion which the noble Lord, Lord Ashley of Stoke, will recall, during which a number of noble Lords admitted that the Bill had not been discussed as a Bill; but they said that that did not matter because the issue of whether the penalty for murder should automatically be life had been discussed.
1402
Indeed, the noble and learned Lord, Lord Morton of Shuna, who I do not think is in his place, seemed to suggest that because the matter had been discussed in 1988, there was no need to debate it in 1993. That seems to be treating a serious measure without the seriousness it demands. So I am glad that we can have some discussion now; although, here again, having this important measure slanted into the dinner interval for the convenience of those who manage the affairs of the House, is probably not the most appropriate way of dealing with it.
Having said that, I should like to come to the merits of the subject. Some of us believe that murder is a uniquely serious crime, and that it should be marked always by having a penalty of imprisonment for life imposed automatically, and no matter whether the circumstances are serious or whether there are seriously mitigating circumstances. When a life sentence is imposed, it is rarely served. It is a matter of some criticism—but perhaps that does not arise so much this evening—that most people convicted of murder and sentenced to life imprisonment are released after 20 years or so.
Your Lordships will be aware that that has been the case in some serious murders, including murders of policemen, and that the police are deeply agitated and worried about the Bill. People convicted of murder, and sentenced properly to life imprisonment for murder, find themselves released after 20 years or so in a great many cases. That is due to a certain laxity in the Home Office which, again, perhaps is a matter which is not appropriate to carry further this evening.
What is important, and it will be regarded as important when the Bill goes to another place, is that murder should be marked as a uniquely serious crime. It is not, as I said, a question of whether life imprisonment is always served, but the fact that if the penalty is automatically imprisonment for life, that marks out murder as being an offence of peculiar seriousness. It is a pity that we should seem to be tackling the Bill in the strange way that it has been tackled. If it is to be tackled, it should be done in a serious criminal law reform Bill which would cover also penalties for some other offences, and would enable the whole issue to be seen in proportion.
It is a pity to dig out this issue as a separate one merely because—I know this as a fact, and the noble Lord, Lord Ashley of Stoke, is an example of it—some noble Lords dislike the idea of the automatic life sentence for murder. I do not believe the Bill will progress far in another place. It will be dealt with, if it is dealt with, in a serious criminal law amendment Bill. I should like to put my voice on record as saying that it is a great mistake to suggest that there has been any diminution in the seriousness with which society regards the crime of murder. That is a dangerous and foolish attitude to take.
Lord McIntosh of Haringey: My Lords, the noble Lord, Lord Boyd-Carpenter, is entitled to his views about the merits of the Bill. However, he is not entitled to say that the Bill has proceeded in your Lordships' House in anything other than an entirely proper way. The First Reading was moved formally, as is normally the case. The Second Reading took place on Monday,

1403
8th February 1993 and the debate took 1 hour and 50 minutes. There were nine speakers, taking up 25 columns in Hansard—
Lord Boyd-Carpenter: My Lords,
perhaps the noble Lord will allow me to intervene. Is it correct that the length of the debate was due only to the fact that a noble Lord objected to the Bill going through on the nod in Committee?
Lord McIntosh of Haringey: My Lords, not at all. There was a Second Reading debate, for which there was a speakers list. If at that stage the noble Lord had wished to express his views in opposition to the Bill, he would have been fully entitled to put his name down to speak or, if he had been unable to do so, to speak in the gap. The noble Lord did none of those things. I was there present but I am not aware whether the noble Lord, Lord Boyd-Carpenter, was present.
I can assure the noble Lord that the debate was entirely proper. It was publicly announced, minuted and appeared on the Orders of the Day. It took place, as my noble friend Lord Ashley said, without a single speaker giving evidence of the kind of dissent to which the noble Lord has referred.
Perhaps I may return to the procedural issue. After an entirely proper Second Reading debate there was an opportunity for the House to consider the Bill in Committee. Again, my noble friend Lord Ashley behaved entirely properly. He rose when the Committee stage was called and announced that no amendments had been tabled and that no noble Lord had indicated a wish to submit a manuscript amendment. He therefore asked the leave of the House for the Committee to be discharged. Again, in accordance with the procedures of the House, any noble Lord, including the noble Lord, Lord Boyd-Carpenter, would have been free to challenge that request and his view would have prevailed—
Lord Boyd-Carpenter: My Lords, is the noble Lord aware that he has the facts wrong, as will be confirmed by his noble friend Lord Ashley? I informed the noble Lord, Lord Ashley, that there would be objection to discharging the Committee stage and taking the Bill on the nod. Therefore, the noble Lord, Lord Ashley, properly did not seek to have the Committee stage dropped and made a perfectly adequate speech on the subject. The noble Lord, Lord McIntosh, was wrong in what he said.
Lord McIntosh of Haringey: My Lords, the point which the noble Lord sought to make at the beginning of his speech was that something improper had been done in that Second Reading had been avoided. In view of what I have said, will he now acknowledge that there was an entirely proper Second Reading debate?
Lord Boyd-Carpenter: My Lords, I never said that something improper had been done. However, I did say, and I repeat, that it was a great mistake that a serious criminal reform Bill was handled in that way. It was a great mistake that it was handled on the basis that an attempt was made to dispense with the Committee stage. Equally, it is wrong to take it now in the dinner interval.
Lord McIntosh of Haringey: My Lords, the Committee stage takes place only if amendments have been tabled or if noble Lords wish to table amendments. That is what a Committee stage is for. The noble Lord in his original speech suggested that there was something—if he did not use the word "improper" I shall not use it—
Lord Boyd-Carpenter: My Lords, no, I did not.
Lord McIntosh of Haringey: My Lords, perhaps I may say "something unusual", in that the noble Lord was clear that there had not been a proper Second Reading. I have produced adequate evidence to show that there was a proper Second Reading. Will the noble Lord acknowledge that?
Lord Boyd-Carpenter: My Lords, I shall certainly acknowledge that I said, and maintain, that there was something, to use the noble Lord's phrase, unusual about treating a serious criminal reform Bill in this way.
Lord McIntosh of Haringey: My Lords, when the noble Lord reads Hansard he will realise that he criticised the absence of a Second Reading debate. After I have challenged him with that and produced complete proof that there was a proper Second Reading debate, the noble Lord has failed to withdraw the accusation that there was something unusual about the lack of a Second Reading debate. I find it extraordinary that the noble Lord should resist the opportunity which he has been given on more than one occasion to apologise to the House and to my noble friend Lord Ashley.
Lord Boyd-Carpenter: My Lords, I have no reason to apologise to the House. I certainly have no reason to apologise to the noble Lord, Lord Ashley, for whom I have the highest regard. What is clear is that the procedure followed on this Bill was unique in respect of a serious criminal reform Bill, and I notice that the noble Lord has not disputed that.
Lord McIntosh of Haringey: My Lords, I certainly dispute that; the procedure was not unique in any way. The procedure went from First Reading, through a full debate on Second Reading, to an opportunity for Committee, and now to Third Reading. There is nothing unique about that, as I am sure the Government Front Bench will confirm.
7.45 p.m.
Earl Russell: My Lords, I hope that the House will bear with a few comments on the merits of the Bill. The noble Lord, Lord Boyd-Carpenter, had only one significant point to make; he argued that murder is a uniquely serious crime. The noble Lord and I were in the House when the issue was debated on the Commons amendments to the Criminal Justice Bill. I have not forgotten the comment made on that occasion by the noble and learned Lord, Lord Ackner, about precisely this point, which was outlined by the noble Lord, Lord Waddington. The noble and learned Lord said, "This is what in the business we call a good jury point", which means that it does not have much substance.

1405
The noble and learned Lord, Lord Hailsham of Saint Marylebone, who on that occasion made a memorable speech, elaborated precisely on this point. The noble and learned Lord asked us to consider two cases. The first was of someone who helped to bring forward slightly the death of a cancer patient in great pain. The second case was that of someone who set fire to a tenement block in which many people lived but in which, by the grace of God, no fatality resulted. The noble and learned Lord, Lord Hailsham, invited the House to consider which of those two cases was truly the most heinous. I do not have much difficulty in reaching an answer.
On that occasion the noble and learned Lord, Lord Ackner, made what is the key point in the argument. In this country we do not have degrees of murder and therefore it is extremely difficult to insist on one single mandatory sentence for every type of murder. However much horror we express at murder—and I agree that every criminal code in every country of which I have heard has done so—it is the case, and has always been recognised, that one murder is not necessarily as heinous as another.
The noble Lord, Lord Ashley, referred to some of the cases involving battered women. In the case of Mrs. Ahluwalia a substantial mischief would have resulted from the mandatory life sentence had we not been saved from that by the ingenuity of the noble and learned Lord, Lord Taylor of Gosforth, whose judgment on the subject deserves a great deal of study. On behalf of Members on these Benches I say that we wish the Bill well and hope that it will fare well and go forward in another place.
Lord Simon of Glaisdale: My Lords, the speech of the noble Lord, Lord Boyd-Carpenter, fell into two parts. The first part was largely a repetition 'of what he said on the Motion discharging the order of commitment. The point he then made was that the matter was too serious for the omission of a Committee stage. On that point he was answered conclusively by my noble and learned friend Lord Morton of Shuna, who pointed out that the matter had been discussed over and over again in this House on the occasion mentioned by the noble Earl and in connection with the Select Committee. In so far as the noble Lord, Lord Boyd-Carpenter, unfortunately went rather further this evening, he has been answered conclusively by the noble Lord, Lord McIntosh.
The second part of his speech canvassed again the merits which have been debated, as I and my noble and learned friend, Lord Morton, pointed out, on a number of occasions in your Lordships' House. The noble Earl has again rehearsed some of those arguments. The testimony of the Lord Chief Justice and his predecessor the noble and learned Lord, Lord Lane, should be added to that of the Select Committee.
This Bill should pass now on Third Reading in accordance with the usual practice. I expect that the Government will seek to kill it in the other place. I can only say that that is so much the worse for the
1406
Government and for the other place and it is so much the better for your Lordships' House that the noble Lord, Lord Ashley, has piloted through this Bill.
7.50 p.m.
Viscount Astor: My Lords, your Lordships will not be surprised to hear that the Government's position on the Bill remains as it was on the two previous occasions when we have debated it in your Lordships' House.
The Government fully understand the strong feelings which some of your Lordships hold about the retention of the mandatory life sentence for murder. We also acknowledge the view which was expressed by your Lordships' House on occasions such as the passage of the Criminal Justice Bill 1990 that the mandatory nature of the sentence should be abolished so that the courts could consider any aggravating or mitigating circumstances of the particular offence of murder and impose a sentence tailored to the specific case.
I have to tell your Lordships that the Government's position has not changed. We believe that the life sentence should at present remain. We are not persuaded that it is necessary or appropriate to abolish this unique penalty, which has for a long time applied to the offence of murder.
Your Lordships spoke with a degree of eloquence and with great determination and put forward arguments with which we are all familiar. But they were not, in the view of the Government, arguments which pointed quite as conclusively towards adopting the measure put forward in the noble Lord's Bill as some of your Lordships urged.
One argument was that murder could not be considered a unique offence and should not, therefore, merit a different penalty from other serious offences.
Of course, there can legitimately be said to be cases of offences other than murder, such as the worst rapes, woundings, and other abuses which might be considered to be more serious than the case of the battered wife who takes the life of her brutal husband and about whom the noble Lord, Lord Ashley, always speaks so eloquently.
I agree that there is force in that argument. It is open to the courts to pass a sentence of life imprisonment for some offences other than murder; for example, those which I have just mentioned. It is, therefore, possible to find those who have served less time in prison as part of a life sentence imposed for murder, than offenders who have committed other crimes.
Our approach to the crime of murder sends a simple and readily understood signal to the country as a whole about the sanctity of human life. There can be no more important or central an issue in the law. The fact that the penalty for murder is always life imprisonment ensures, as I said before, that someone whose deliberate action has resulted in the loss of another person's life will always—even if released from prison on licence—be liable to imprisonment for the rest of his or her life.
My right honourable friend the Home Secretary has made it clear that he will continue the policy of his

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predecessors of requiring that those convicted of the most serious murders—including police killers and sexual and child murderers—will serve at least 20 years in prison. The mandatory life sentence has, since its introduction in 1965 meant that the time spent in prison has varied from six months to, to date, 40 years. The Government do not, therefore, accept the argument that the abolition of the mandatory life sentence is necessary to provide the flexibility to deal with every situation which might result in a conviction for murder. That flexibility already exists in the present system.
Anyone who has read a newspaper at almost any time, but particularly over the last month, will be aware that public confidence about crime and the fear of crime is something which can be affected very immediately by a whole range of factors.
Unlike the noble Lord, Lord Ashley, we, the Government, have to think very carefully what message we would be sending to the public if we were to abolish the mandatory sentence for murder at this time. To say that we were going to abolish the mandatory life sentence for this very grave offence would, in the Government's view, send the wrong message to the public about our determination to deal with violent crime and about the sanctity of human life and would, I believe, risk undermining the faith of the public in the criminal justice system as a whole.
I have set out the reasons why the Government remain committed to the mandatory life sentence for murder. We shall, of course, continue to reflect upon whether this sentence remains the most appropriate response to those who commit such a grave crime. We are not, though, as yet persuaded that the arguments put forward in support of this Bill outweigh those in favour of retaining the mandatory life sentence and that is why the Government are unable to give their support to the aims of the Bill.
7.56 p.m.
Lord Ashley of Stoke: My Lords, I am grateful to those noble Lords who have spoken in the debate but I must begin by correcting the noble Lord, Lord Boyd-Carpenter, on a number of misleading points which he has made.
As regards procedure, he has been answered in great detail by my noble friend Lord McIntosh who was right when he spelt out the procedure which has been followed. I see no point in taking that argument any further.
The noble Lord, Lord Boyd-Carpenter, said that I had not told the House what I had in mind and that was one reason that he objected to the Bill. As I have already said, I dealt in great detail with what I had in mind in the Second Reading debate on 8th February. I do not wish to repeat all the points that I made but in essence I said that:
"It is quite nonsensical to give precisely the same sentence to a brutalised woman driven beyond the brink by sustained violence as to vicious, sadistic murderers".—[Official Report, 8/2/93; col. 481.]
As regards the alternative, I said:
"With determinate sentences for murder the judiciary, not the executive, gives a public verdict on the seriousness of the crime. By ending mandatory life sentences, we can avoid the
1408
anomalies, false impressions and injustices that now exist—and We can win public support for our judiciary". —[Official Report, 8/2/93; col. 482.]
That is a short extract from a long speech which I made outlining precisely what I had in mind.
The second point on which I should like to correct the noble Lord is that he complained that I suggested that the Second Reading debate was late in the evening. That is quite wrong because it began at 6.33 p.m. and ended at 8.23 p.m. That is by no means late at night.
The third point on which I wish to correct the noble Lord is that he said that the debate was too important to be allowed to go through on the nod as I had proposed. I never suggested that that should happen. Perhaps the noble Lord will check Hansard. The last thing that I wanted was for the Bill to go through on the nod. I love debate and was delighted to hear the noble Lord put forward his views which he did extremely eloquently. However, I disagree with those views. I love debate and I dislike matters going through on the nod. Therefore, the noble Lord is quite wrong to suggest that I suggested that the Bill should go through on the nod or that the Committee stage should go through on the nod.
The fourth point on which I should like to correct the noble Lord is that he said that the proposal should properly be part of a larger Bill dealing with the law. In point of fact in the Second Reading debate the noble Lord, Lord Windlesham, explained that there was an amendment to a large Act, the Criminal Justice Act 1991, in which this clause was moved. So it has formed part of a larger debate. Regrettably the Government did not accept it. I wished to correct the noble Lord on those points. As regards the substance of his argument, I do not know what the noble and learned Lord, Lord Ackner, and the noble Lords, Lord Wigoder and Lord Windlesham, would make of the points he has made because he spoke as if he had not followed their brilliant speeches which were made on Second Reading. Their speeches tackled all the points far better than I can as they have a wealth of experience and legal expertise.
In essence what they were saying, and what I am trying to say, is that the life sentence is fine and admirable, but a mandatory life sentence for all murderers regardless of how heinous their crimes is perhaps ridiculous. In many cases the life sentence is imposed on someone who does not deserve it, for example, a mercy killer or a victim of domestic violence. All we are asking is to drop the term "mandatory". We are happy that the life sentence itself should be maintained. To impose the mandatory life sentence in all cases of murder is to bring the law and the courts into disrepute. That step is opposed by the noble and learned Lord the Lord Chief Justice, many judges and noble Lords on both sides of the Chamber.
I apologise if I have repeated some of the arguments that were made on Second Reading. However, I am glad of the opportunity to express my great appreciation to all noble Lords who have spoken in this debate. I am grateful to the noble Lord, Lord McIntosh, for backing me up on this matter. I hope that this House will give the Bill a Third Reading.

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On Question, Bill read a third time.
Lord Ashley of Stoke: My Lords, I beg to move that this Bill do now pass.
Moved, That the Bill do now pass.—(Lord Ashley of Stoke.)
On Question, Bill passed, and sent to the Commons.
Scottish Nuclear Ltd. (Rateable Values) (Scotland) Order 1993
Mercury Communications Ltd. (Rateable Values) (Scotland) Order 1993
Lochaber Power Company (Rateable Values) (Scotland) Order 1993
British Railways Board (Rateable Values) (Scotland) Order 1993
British Gas plc (Rateable Values) (Scotland) Order 1993
British Telecommunications plc (Rateable Values) (Scotland) Order 1993
Electricity Generators (Rateable Values) (Scotland) Order 1993
Glasgow Underground (Rateable Values) (Scotland) Order 1993
Industrial and Freight Transport (Rateable Values) (Scotland) Order 1993
Scottish Power plc (Rateable Values) (Scotland) Order 1993
Oil Related and Petrochemical Plants (Rateable Values) (Scotland) Order 1993
Mines and Quarries (Rateable Values) (Scotland) Order 1993
Water Undertakings (Rateable Values) (Scotland) Order 1993
Scottish Hydro-Electric plc (Rateable Values) (Scotland) Order 1993
8.3 p.m.
The Minister of State, Scottish Office (Lord Fraser of Carmyllie)The Minister of State, Scottish Office (Lord Fraser of Carmyllie) rose to move, That the draft orders laid before the House on 15th February be approved [21st Report from the Joint Committee.]
The noble and learned Lord said: My Lords, the 14 draft orders standing in the Order Paper in my name relate to matters of valuation for rating in Scotland. Two prescribe the industrial derating for 1993–94; 11 deal with the rateable values of the so-called formula-valued industries, and one provides for the enhanced derating of certain oil and petrochemical properties.
Two of the orders continue derating in Scotland for the coming financial year for industrial and freight transport lands and heritages and for mines and quarries but at a lower level than that in place for the current year; namely, 17.5 per cent. The higher level of derating of 58.75 per cent. for mines and quarries complements the level of derating that applies south of the Border for similar properties.
As regards formula valuation, the formula-valued industries are mainly public utilities which are not valued for rating by the regional assessors in the usual way, but for which the rateable values are prescribed. The draft orders before your Lordships today simply revise the rateable values prescribed for this year to take account both of the new level of industrial derating of 17.5 per cent. and also of material changes affecting the value of each industry's property holdings.
As regards oil-related and petrochemical derating, the final order supplements the Oil-related and Petrochemical Plants (Rateable Values) (Scotland) Order 1992 by extending its provisions to lands and heritages which are partly used for the prescribed purposes and honours a government commitment made in relation to the 1992 order. The level of derating proposed for the relevant elements is 45 per cent. with retrospective effect to 1st April 1992 in line with the effective date of the 1992 order.
These orders in the main update 1993–94 existing provisions which apply in respect of this financial year. I commend the orders to your Lordships.
Moved, That the draft orders laid before the House on 15th February be approved [21st Report from the Joint Committee]. —(Lord Fraser of Carmyllie.)
Lord Carmichael of Kelvingrove: My Lords, I am grateful to the Minister for his explanations. I have received no representations as yet on any of these orders either from the organisations that are involved in this matter or from any local authorities. The Minister's explanations may stimulate some action from them but in the meantime I am happy to accept the explanations that he has given.
On Question, Motion agreed to.
The Earl of Strathmore and Kinghorne: My Lords, I beg to move that the House do adjourn during pleasure until 8.30 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 8.6 to 8.30 p.m.]

Trade Union Reform and Employment Rights Bill
House again in Committee.
Clause 8 [Annual return to contain additional information]:
The Deputy Chairman of Committees (Lord Airedale): In calling Amendment No. 29, I have to point out that, if it were agreed to, I should not be able to call Amendment No. 30.
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 29:
Page 13, leave out lines 4 to 10 and insert:
(" "() for the period to which the return relates,

(i) the aggregate amount of emoluments paid to members of the executive, the president and the general secretary;

(ii) the amount of any such emoluments waived;

(iii) the emoluments of either the general secretary or the president, whichever is greater (or both where they are the same);

(iv) if the emoluments of any other persons mentioned in paragraph (i) exceed that entered under paragraph (iii), the greatest amount of those emoluments;

(v) the number of those persons mentioned in (i) whose emoluments fell within each of the following bands:

—not more than £5,000

—more than £5,000 but not more than £10,000

—more than £10,000 but not more than £15,000, and so on, and

in this section "emoluments" bears the same meaning as in paragraph 5 of Schedule 6 to the Companies Act 1985, and").
The noble Lord said: The amendment, in a sense, takes the Government at their word. The Government rightly insist that there is no natural parallel between trade unions and companies in respect of the matters which are peculiar to each of those entities. However, in regard to matters where a common standard can be found, the Government immediately reach for the analogy. That is apparent in respect of the appointment of inspectors, where they use the precise words of the Companies Act, section after section, because they regard the parallel as correct. Therefore, there is no point in talking about trade unions not being companies and companies not being trade unions. The question is whether, on a particular issue, there is an analogy and, if there is not, what is the reason.
On page 13 of the Bill we are concerned with the question of disclosure. I immediately stake a claim, if not an interest, in having argued for further disclosure in all kinds of bodies, especially companies and the like, in particular in regard to those who constitute the controlling group in the entity. In any body that group is nearly always the committee of directors or the executive committee with the important officers. Company law specifies the chairman, but I am not sure that that is correct in company practice. In trade union law it is naturally the president and general secretary.
In this amendment I have transposed, with a few differences —president or general secretary for chairman and so on—the company law standards, the standards which are now thought right for a wide

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range of bodies. When we speak of a company we may be speaking of a very large public company, a large private company or small bodies. There are small divergences, but Schedule 6 to the Companies Act 1985 lays out a pattern of disclosure which is largely similar to that which the amendment contains. The important points are: the disclosure of what the chairman obtains by way of emoluments, including, as indicated in paragraph (1) of Schedule 6 to the Companies Act, fees and percentages; sums paid by way of expenses that are chargeable to income tax; contributions and the estimated money value of any other benefits received otherwise than in cash. Those must be revealed by the chairman in person. Beyond that the sums are recorded by means of bands, set out in the statute £5,000 apart, except in the case of any directors who receive more than the chairman. I have included those three basic points in the amendment. One could argue about the precise sums.
In the Bill we find that, even though the Government have taken a direct analogy in terms of company law for their inspectors, there is a very different requirement of disclosure for trade union members of the executive. Each and every member of the executive committee has to disclose salary and benefits. My noble friend will take up the question of what benefits means. In broad terms this is a pattern of individual disclosure.
I remember very well arguing in 1967 the case for individual disclosure. I was not then a Member of this Chamber, but I remember that even the body I addressed dissolved into anxiety and shock at the idea that each individual director should be made to disclose. Directors are not required to do so.
My first question to the Government is: what is the ground upon which the individual disclosure doctrine for this particular body displaces the bands philosophy which has operated for a long time in company law? If it is said that the difference is caused by the number of proven decisions or cases of misfeasance—and there is always misfeasance in every type of body—then, if one adds up the company law map of coloured regions in this country, in the City one would not put company law disclosure so far below that of other bodies such as trade unions. What are the factors which make the Government say that disclosure for other associations should be more stringent than for companies? It seems to me that there is no ground in terms of the history of the matter.
If one wants to find trade union movements which have been riddled with real racketeering one has only to look at labour union history in the United States. If there were such a background one could legislate much more strictly. However, there is no such scene here and there is no justification for saying that each and every person on these bodies should disclose. I do not wish to keep matters secret; I merely say that there is a pattern elsewhere which the Government acknowledge and ask what is the reason for diverging from it now.
Every time in connection with company law any of us has tried to argue that company directors should
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disclose at least a little more information than now, it has always been argued that those are matters which are subject to some rule of privacy. I do not argue that everything should be kept hugger-mugger. I am perfectly prepared to accept a pattern of this sort for all bodies. All I ask is: why is there a discrepancy? My interpretation of what has been said in the other place is that the intention is to make trade unions more difficult to administer. That is a pattern which can be seen very easily. I beg to move.
Baroness Turner of Camden: I support my noble friend's amendment. It bears some resemblance to a similar amendment moved in Committee in another place. However, on that occasion the response of the Government was not convincing, at least to me. I am grateful to my noble friend for giving us the opportunity to debate the merits again today.
My noble friend has made the point that no one, certainly not on this Front Bench, quarrels with the notion that union members have the right to know what is paid to the officials whom they employ, including the general secretary, and that they should also be informed of any emoluments accruing to members of the national executive council.
However, I cannot help feeling that the Government are under the impression that senior trade union officials and members of the executive receive large sums of money by way of emoluments. That is not the case. If they do not think that, why have the Government put requirements on unions in the Bill which are certainly not requirements on companies?
When I worked as a very senior official I earned considerably less than many of the members on whose behalf I negotiated. It is true that my union organised among managerial staff, but I refer to middle managers rather than top managers. Of course I worked much longer hours than they did. The previous general secretary of my union received a salary very much lower by commercial standards than he would have received had he been a chief executive in a major company. One has only to consider some of the salaries paid in private enterprise to understand that there is no comparison with top directors. Salaries of £300,000 are not uncommon. The best paid director of Whitbread's receives £330,000 a year; at Allied Lyons it is £369,000. There are plenty of other examples too numerous to mention.
My noble friend has made it clear in moving the amendment that he seeks to bring unions into line with the provisions of the Companies Act under which it is permitted to show persons within bands of entitlement. He referred to that as the "band philosophy". I do not believe that the Government's response in another place was adequate to deal with the point that unions should not have more onerous demands placed upon them than companies. I do not believe that the case has been made out. I do not know of any large examples of fraud by members of the executives or by chief officials of unions. I therefore support the amendment.
8.45 p.m.
The Parliamentary Under-Secretary of State, Department of Trade and Industry (Baroness Denton of Wakefield): I am delighted that the dinner break allowed the voice of the noble Lord, Lord Wedderburn, to recover a little.
I believe that it is now widely accepted that trade unions should provide information to the certification officer and to their own members about the salary paid and benefits provided to all of their leaders. Those salaries and benefits come from subscriptions paid by ordinary union members, and the leaders are subject to election to office by those members. It should no longer be necessary for members, or indeed the public, to depend on what information about these matters can be gleaned from details which union leaderships may choose to make available.
The Government resist Amendment No. 29—I understand that Amendment No. 31 is being considered in conjunction with it —because it would amount to a significant modification of the information about salaries and benefits provided to union leaders which the Bill proposes should be made available in a union's annual return. As proposed by the amendment, there could be no assurance that the salary and benefits provided to each union leader would be identifiable as such. Indeed, the noble Lord made that quite clear. There would be no way of knowing, for example, which particular member of the executive was covered by which of the bands proposed by the amendment since there could be several listed as being in any one particular band.
The provisions of the new subsection (aa) of Section 32 derive directly from the proposal in the 1991 Green Paper. Paragraph 7.25 of that consultation document proposed that:
"unions' annual returns to the certification officer should in future, as a matter of course, identify the salary or other remuneration (including loans and benefits in kind) provided out of union funds to each member of a union's principal executive committee, to its president and to its general secretary, in the period covered by the return".
The new information requirements relate to union offices which are subject to the statutory election requirements, and to those offices alone. Accordingly, an attempt to make a distinction between the offices of union president/general secretary, on the one hand, and a member of the executive, on the other, as the amendment proposes, would introduce an unwarranted distinction. We believe that union members should, without undue difficulty, be able to identify the salary paid and benefits provided to each of the union's leaders who has been elected to office.
The measures in the Bill represent what the Government believe are necessary measures to reform trade union law. Attempts to make comparisons between company law and trade union law are neither apt nor useful. As my noble friend has already stated, unions and companies are different organisations, with a different legal status and different relationships with their members or shareholders.
The argument that there is any real analogy between the situation of a company shareholder and a union member is difficult to understand. People invest in companies in order to make profits on that
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investment, and often make their investments in substantial lump sums. Individuals join unions for a variety of reasons, but their subscriptions are membership payments and not investments. It is quite unsurprising therefore that the law should differ, and should continue to differ, according to the different circumstances of shareholders and of union members. That seems to me a very firm ground on which to make that distinction. I hope in view of that response that the noble Lord will withdraw the amendment.
Lord Stoddart of Swindon: I listened carefully to what the noble Baroness said. She stated that it is not apt to make comparisons between a trade union member and a shareholder of a company. I believe that it is apt. In both cases the funds of individuals are being managed and used by another group of individuals who have been elected, one way or another, to manage and look after those funds.
The noble Baroness states that of course companies and unions are different. People invest their money to make a profit. I suggest that trade union members invest their money to ensure that they are treated fairly: that they have people to look after their interests because they are in a weak position generally in relation to their employers. On the one hand, therefore, one has a group of people working in industry who elect and pay a group of people who are prepared to look after their interests, their conditions of service, their wages, whether or not they are dismissed fairly or unfairly and a range of benefits which they may receive. On the other hand, the shareholder invests his money in a business. He does so in the knowledge that he can elect people to the board who will look after his interests. It is still an interest similar to that of the trade unionist. The shareholder wishes to ensure that he has a group of people who will invest his money so that he obtains the best return. I see no reason why the group of people looking after the shareholder's money and interests should have to make a lesser declaration than the people who look after the trade unionist's interests. Although not identical, in many ways the interests are the same. I hope that the Government will reconsider the issue and that the noble Baroness will reconsider what she said.
As the noble Baroness knows, I am a reasonable person. I like to listen to argument, and I like to put the other side of the argument. But they are giving the impression in this legislation, and indeed in previous legislation, that what they want of the trade unions is bodies which, in themselves, have little or no power to affect and look after the interests of their membership, but, as I said at Second Reading, are more administrative bodies which are useful on certain occasions to the employers. When they are not, then of course the Government take a dim view of them, and would like to get rid of them.
They are giving that impression. I urge the noble Baroness to listen to my noble friend, who is a great expert on these matters. My Front Bench colleagues are great experts on these matters. They are academics or they have worked in the trade union movement, as indeed in a voluntary capacity I have. I urge the Government to listen to the arguments being used.

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They would find that people out in the country, trade unionists, would warm to them if they took their point of view into account, and could believe that the Government had some concern and consideration for their interests.
Baroness Seear: I do not understand why the Government think that they have to have such detailed information about individual people. What the ordinary member wants to know is that there is not a racket going on in the payment of the officials. They want to know that there is not somebody going off with £100,000 a year and somebody else getting £10,000, or something. They can do this if they have bands along the lines suggested here. That is all they want to know.
They do not want to know—and it seems to me they are not entitled to know—that Mr. X or Miss Y is getting £5,000 a year more than somebody else. That is not their business. They want to know that they are not being ripped off by the executive being paid excessive amounts. That is all they need to know. The amendment is adequate for that. You do not have to have these identifiable rates for individual people that many people would just love to argue about and make great nuisances of themselves.
Lord Blease: There is one point that has not been mentioned. In the modern trade union movement they require to bring in academics who have been professionally trained and educated in terms of work study, job evaluation and economics—in some cases even philosophy—to steer their union in the right direction. In many cases, these persons need to be of the top calibre. They come in at a wage level sometimes above that of the general secretary, and there is nothing as demeaning as someone having to administer to people who are getting enhanced salaries far above theirs.
If the trade union movement is to do a job in the interests of industry throughout the United Kingdom, it must have people of high calibre, and people who will come into the trade unions and not be streamed off into industry. It is a terrible anomaly to have the general secretary sometimes working for a salary which is thousands of pounds below an assistant employed in an economic research capacity.
Baroness Denton of Wakefield: The noble Lord, Lord Stoddart, misses no opportunity to assure me of his reasonableness, and I take great note of that. Perhaps I may also say that I would not dispute for one moment the great expertise on the opposite Benches to which he drew attention. But I believe that we are not discussing company law here; we are discussing trade union law.
The argument to which the noble Lord and the noble Baroness, Lady Seear, drew attention was that they have a right; that these are membership payments. Union leaders are paid from funds provided through members' subscriptions. We are talking about elected officers. We are not talking about the executive. The noble Lord, Lord Blease, and the noble Baroness, Lady Turner, drew attention to
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the fact that many elected officers work for considerably less than the staff they employ. Ministers well understand that situation, too.
Members have a right to know these details. I believe that we have common ground on openness in many areas here. I am aware that in the past allegations made against NUM leaders indicated that there could be confusion about the total remuneration provided to union leaders, and about whether particular remuneration they received came out of union funds. I am afraid that I cannot see that there is a reasonable objection to this, and I hope that the noble Lord, Lord Wedderburn, will withdraw his amendment.
Lord Wedderburn of Charlton: I wanted to welcome the noble Baroness in putting her first toe into this ocean, this morass, of trade union law, but she caught me unprepared in some of the reasons she gave for opposing this amendment about disclosure. She mentioned that trade unions have to give information to the certification officer. They have had to give information to a public officer since 1876. Not as much, but of some considerable kind, which lasted for a century. The noble Baroness said that trade union leaders have to be elected. They have had to be elected in one form or another since 1871. These curious historical explanations do not give us much to go on.
The Government will go on saying it because it is in all the briefs; but we must insist that it is absurd to say that this belongs to company law, and that belongs to labour law or trade union law, or however you like to define it. Of course there are some things that are special to particular bodies. I take two examples. First, the Government have taken over the whole structure of inspectors from company law into trade union and association law in this Bill. I did not say, "Oh, dear, that is a structure for companies, and we had better not touch that." There are vast streams of case law which belong equally to company, trade union or indeed association law. The venerable precedent of Foss v. Harbottle in 1843 is a basic case in company law, of which the most useful illustrations are in cases concerning trade unions.
There is a flow of law about associations, and of course it syphons off into particularities for particular bodies. The Government cannot tell us that they are doing a particular thing for trade unions merely by saying that they are not companies. Nor does it do much to help the argument for the Government to rely—and the noble Baroness was not the first to do it; it is a repetitious theme for the Government—on their own Green Paper of 1991. I know what the Green Paper says, and it is possibly even worse than the Bill.
The investment of people in their companies, as my noble friend Lord Stoddart said, is easily matched. People invest their lives in their jobs, when they have not lost them, and they join a trade union to try to keep the job and do as well as they can. The shareholder is different in certain respects; but he is investing part of his life in a company or companies into which he puts his finance. There you have two groups of people whose resources are being managed by other people on their behalf.

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Do the Government say that the doctrine of fiduciary duty which applies to company directors does not apply to executive officers or senior officers of a trade union? Of course, it does. There is precedent after precedent. One could go on with a long list of things that apply to all associations. Fiduciary duties apply to all associations. One would have thought that in this House the Government could have done better. There was simply a repetition that "these are trade unions, not companies". We expected a little better.
I suggest to the Government, as the noble Baroness, Lady Seear, said—and whose intervention I greatly welcome—that they must go away and think about this again and not rely upon some slogan about one set of propositions for companies and one for trade unions. The insistence upon individual disclosure looks rather odd. It looks as though it has some purpose other than the perfectly genuine one of the need of the membership for disclosure.
I do not think that the noble Viscount would have a covert purpose; I would not think that of him. But look at the Bill: the provision does not rate a good measure of approval because, as the noble Baroness, Lady Sear, said, it is not what is required in the situation. If it is not required in that situation nor in the company situation which has some analogy, what is it there for? We suspect, as the noble Baroness suggested, that its purpose is that it would be useful to make trouble on a few occasions. That is the level to which we have descended. The noble Viscount looks astonished. I have the greatest respect for him, but he may not be clear what the legislation is about. I say that quite honestly and straightforwardly. Many others have not seen the drift of the legislation over the past five years.
This legislation dislikes collective bargaining—it wants to push it into a corner. If one pushes collective bargaining into a corner, one pushes trade unions into a corner and leaves them as weak as one can. One deprives them of funds which they thought they would receive and one makes them disclose matters beyond a level which is reasonable for anyone to demand, because it will help a little fragmentation here and there. No such thought crossed the mind of the Minister, but I suspect that that is the real aim and purpose of the legislation which we shall see in a few years' time.
I know that I have to withdraw the amendment, but I feel that this has been a productive debate. No doubt the Government would like to consider the amendment to see whether we could at least come back to parts of it on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
9 p.m.
Baroness Turner of Camden Baroness Turner of Camden moved Amendment No. 30:
Page 13, line 4, after ("benefits") insert ("excluding expenses directly incurred in work on behalf of the union").
The noble Baroness said: It is a pity that the previous amendment was taken late in this evening's proceedings because I believe that it is an issue to which we shall have to return at Report stage. I
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understand that, had the amendment been carried, I should not now be in a position to move this amendment.
In this proposal I seek to exclude under the heading of "benefits" expenses directly incurred in work on behalf of the union. There was some discussion in Committee in the other place about expenditure which union officials must quite legitimately incur in the course of their duties for the union. The response from the Government on that occasion did not strike me as being satisfactory, and in my view showed no understanding of what the job of an official is really like in practice.
For example, in my union it was customary to provide officials with cars. The general secretary was provided with a car and a driver. In my view, that was a quite proper use of funds. It was necessary for him to go to many evening meetings, and to drive home late, and tired, by oneself, is not a good idea for anyone. The provision of a driver was seen as a sensible measure by our executive. The same attitude is taken, I think, with many companies as regards their senior executives.
The rest of the union officials were provided with cars which they drove themselves—not, I may say, very expensive models, in case the Government should think that unions are in the habit of throwing their members' money about. I drove then, as I drive now, a Ford Orion or its equivalent. A car was and is regarded as a tool of the job. It was intended to ensure that the official was able to make the best use of his or her time and to visit sites on the occasions when it was felt that he or she needed to be there. Of course, there is the provision of offices, telephone, secretary, support staff and so on, without which no modern organisation can effectively function.
It was not at all clear from the discussion in the other place that the Government fully appreciated that there are expenses which are quite legitimately incurred in the course of carrying out duties on behalf of members. They in no sense represent any kind of benefit. They are what it costs to do the work properly. Of course, in all unions expense claims of that kind are checked by internal administration, as they would be in any organisation.
Thus it is necessary, in my view, to separate from benefits, legitimate expenditure incurred in pursuance of the job. That is the aim of the amendment and I hope that the Government will give it favourable consideration. I beg to move.
Baroness Denton of Wakefield: I am grateful to the noble Baroness for explaining the reasons for her amendment, which is important. I hope that I shall be able to explain to her why we feel that it is unnecessary. To insert the words proposed by the amendment would risk creating a real confusion between the concepts of a "benefit" and of an "expense". Frankly, there really is and should be no such confusion. An expense cannot be a benefit because, to put it simply, there is no benefit to the individual recipient. No one suggests that the expenses of people in situations where those are required in the pursuit of their duty are a benefit.

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As concerns the need to provide details of all actual benefits, there would be little point in setting up arrangements which meant, for example, that a union could legitimately avoid detailing valuable benefits provided out of union funds to the holder of an office. The present proposed provisions of Section 37 ensure that this cannot happen.
The key principle is that if a benefit such as the use of a car, payment towards a pension or the use of a flat or house is provided out of union funds for the personal use of an individual, then its value or description should be given.
At present, the nature of the new requirement is clear enough. A union must give details of all salary payments (expressed as a cash amount) and all "other benefits" (which could either be expressed in terms of a cash equivalent figure, or in terms of an adequate description of the benefit concerned, if that is more appropriate or practical).
It is not the intention that if the union does its best to provide those details it should fall foul of the law. There will, I am quite sure, be no question of prosecuting a union for a criminal offence in those circumstances. It is worth while bearing in mind that it is the criminal law that provides the sanction against failure in this area.
I hope that the noble Baroness will accept that the result of the amendment would be to introduce an unnecessary ambiguity and confusion into the proposed requirements. I hope that she will not pursue it.
Lord Wedderburn of Charlton: I should like to ask a question for a response either now or at a later stage.
I understood the noble Baroness to say that the words "other benefits provided to or in respect of" did not include benefits which were necessary for the job. Have Ministers taken advice from the Inland Revenue as to whether that situation would appear obvious to a tax expert? I think that it would not be obvious. Under another statute of 1985 which I dare not mention, persons who have to disclose their salary and, in general terms, benefits, must disclose sums paid by way of expenses allowance so far as they are chargeable to income tax, and the estimated money value of any other benefits; that is to say, expenses which are chargeable to tax, excluding benefits necessary for the job, for example, and any benefits received otherwise than in cash.
It was thought necessary to spell those matters out in Schedule 6 to the Companies Act 1985. It is always felt that companies Acts should spell out the exact meaning of expenses and benefits. I doubt, in the absence of authority against the argument, whether the phrase "salary paid to and other benefits provided" does not mean salary paid, because salary means taxable salary. It is "salary paid to" as well as other benefits in full. Then one has to explain what is needed for the job.
My noble friend on the Front Bench has made a cast-iron case that at first blush everything is included. If the noble Baroness, Lady Denton, states that it does not include all benefits and does not include the kind of thing that the amendment seeks to take out, she
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must, give some authority for that proposition. Such statute as I know is against that suggestion and the question is what the tax authorities would say in the light of the tax statutes, which I am sure Ministers must have looked at.
Baroness Denton of Wakefield: The noble Lord is leading us back down the avenue of comparing company law with other areas. We will note his words very carefully and take them into account.
Lord McCarthy: I should like to ask the Minister about a related point. I understood her to give an undertaking that there would be no prosecutions. Is that what the noble Lady said?
Baroness Denton of Wakefield: Yes.
Lord McCarthy: How can the noble Baroness say that?
Baroness Denton of Wakefield: I stated that, if a union does its best to provide the details, it will not fall foul of the law.
Lord McCarthy: If it does its best, but its best is outside the law, how can the noble Baroness say that there will not be prosecutions, even though the union did its best?
Baroness Denton of Wakefield: One must bear in mind that it is the criminal law that provides sanction against failure to do what the law requires in that area. I was trying to be helpful to the noble Baroness.
Lord Stoddart of Swindon: I am puzzled as to the question of company law and benefits in kind. We are not dealing merely with a question of company law. Benefits in kind affect individuals. If one has a company car or even a car allowance, one is required to account to the Inland Revenue for that benefit. Part of it is taxable. A benefit in kind is not only a question of company law; it is also a matter of individual taxation and, therefore, is relevant in this case.
Baroness Denton of Wakefield: We appear to be going down two different avenues, one regarding Inland Revenue matters and one regarding the amendment. The clause to which I am speaking relates to the provision of information to the certification officer as part of the union's annual return.
Lord Stoddart of Swindon: Does the noble Baroness not understand that, in relation to individual taxation, part of the benefit can apply to work done and part can be considered by the Inland Revenue to be a benefit in kind, so that there can be a split benefit? One part of the benefit is necessary for the conduct of the work and the other part is a personal benefit. That is the matter that concerns me.
Baroness Denton of Wakefield: It is possible that the noble Lord is more knowledgeable than I am in the area of tax law but we are not dealing with tax law in this instance; we are dealing with trade union law, under which the rules and enforcement are different.
Lord Wedderburn of Charlton: With great respect to the noble Baroness, we are discussing a serious point. Noble Lords should ask Ministers to look at the

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matter again. We are concerned with the meaning of the Bill; whether "other benefits" includes all benefits or, as my noble friend on the Front Bench contends, benefits other than those that are necessary for the job.
The noble Baroness says that it is just a question of a return to the certification officer. Yes, it is under Section 32. But under Section 45(1) failure—wilful failure at any rate; and there is some argument about what that might be—to fulfil that obligation is a crime. It is an offence. It is rather serious for Ministers to give us assuredly an interpretation which some of us find rather odd about what might constitute the base for the criminal offence without, with the greatest respect, any authority, without a case, a statute or an argument which seems quite clear. I believe that the Committee would not be doing its duty on this occasion if we did not ask the Government—Ministers may refuse if they wish—to look at the point again because the whole of the beginning of Clause 8(a) begins to unwind. It is a most unsatisfactory clause, which could form the basis of criminal liability.
9.15 p.m.
Baroness Denton of Wakefield: I repeat what I said to the noble Lord earlier. We will take into account very seriously, and obviously with our colleagues, the matters he has raised this evening.
Baroness Turner of Camden: I am grateful for the last remarks of the noble Baroness. I would not anyway have pressed the amendment at this time. But I look forward to hearing what she has to say at Report stage. I very much support what my noble friends have said. This is an important question. I believe that we have had a very confusing response from the noble Baroness. I believe that we are entitled to know because, as has already been said, this clause puts us into the realm of criminal law. This would be a criminal offence if it were wrongly interpreted as a result of a part of the statute which is not at all clear and as a result of assurances which have been given which a number of us find rather difficult to follow. In those circumstances, and against the assurances given that there will be further examination of the issue and that we shall hear further about the matter when we come to Report stage, I shall not press the amendment this evening.
Amendment, by leave, withdrawn.
Clause 8 agreed to.
Clause 9 [Statement to members following annual return]:
[Amendment No. 31 not moved.]
The Deputy Chairman of Committees (Lord Airedale): In calling Amendment No. 32, I have to say that were it agreed to I could not call Amendment No. 33.
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 32:
Page 14, line 5, leave out ("anything inconsistent with") and insert ("something materially different from").
The noble Lord said: In moving Amendment No. 32, perhaps I may also speak briefly to Amendment No. 33, although I know that my noble friend will wish to speak to it as well.
It is a very simple matter and I am sure it will not detain us long. The Bill speaks of "anything inconsistent" (page 14, line 5) in respect of the requirements of the section on statements that are made. A statement must not specify:
"anything inconsistent with the contents of the [annual] return".
It is a simple point. The phrase "anything inconsistent" appears to include anything due to a misprint or some other mistake of a minor kind. Usually in statutes saying this kind of thing one would expect to find something different in a material respect or, as my amendment suggests, something materially different. My noble friend has a similar suggestion. Surely "anything inconsistent" should not stand by itself. There should be some relation to a material difference, which should then bring the clause into effect. I beg to move.
Lord McCarthy: There is nothing much for me to say about the amendment—everything has been said —except to say that we did have Amendment No. 33 which inserts after "anything" the word "substantially", so that we are talking not about "something materially different from" but about something substantial. We are indifferent to which of those two forms of words the Government find acceptable. If they could tell us whether they find either of them acceptable, that would be very helpful.
Baroness Denton of Wakefield: As currently drafted, the proposal in Section 32A requires the trade union to provide its members with a statement following its annual return to the independent certification officer. Subsection (4) provides that that requirement will not be satisfied if the statement to members specifies anything inconsistent with the contents of the return to the certification officer.
I appreciate the concern that, for example, a simple misspelling or a printing error might mean that a union failed to satisfy the requirements. Indeed, such concerns were fully expressed during the consideration of the clause in another place. Perhaps I may reiterate some of the comments that were made there about this provision. First, the provision gives trade unions the opportunity to use information which they have already compiled for the purpose of their annual return to the certification officer. That is a factor which would be welcomed by trade unions. Secondly, it is important to ensure that the information which a trade union gives to its members is consistent with that in the annual return. I believe that the provisions as currently drafted will ensure that such important consistency is maintained.
Finally, I hope I can reassure the Committee that an offence would not be committed if a minor or inconsequential inconsistency such as I have mentioned occurred. I do not believe that a court would consider that an offence had been committed on the strength of a simple mistake of the kind I have just described. Again I would say that a trade union which has every intention of honestly informing its members about its financial affairs has nothing to

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worry about with the provisions as drafted. I hope therefore that there is no need to press the amendments and that they can be withdrawn.
Lord Wedderburn of Charlton: We shall not press the amendments, but what is so curious about the Minister's position is that either form of the words we suggest, or indeed other forms, would make her argument secure. She prefers to rest on an uncertain definition in the clause. It is uncertain, however much she may assure us that there would not be an offence. It is less sure than either of the forms proposed. The Government have done that before, and we have lived with it, I suppose. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 33 not moved.]
Baroness Robson of Kiddington Baroness Robson of Kiddington moved Amendment No. 33A:
Page 14, line 48, at end insert:
("() The Certification Officer may authorise a trade union to modify the statement in subsection (6) (a) above, to the extent he considers it desirable to do so in the case of that particular union.").
The noble Baroness said: I am moving this amendment at the request of the Chartered Society of Physiotherapy, of which I am president. I should explain that the chartered society, as well as being a professional body incorporated by Royal Charter, is a registered trade union and is therefore subject to this legislation.
The Committee will appreciate that the way the statement is drafted at the moment permits of no amendment to reflect the individual circumstances of a particular organisation. It may well, therefore, involve a union in giving misleading advice to its members. For instance, the chartered society, along with other special registered bodies such as the occupational therapists—I am sorry that the noble Lord, Lord Ennals, who has put his name to the amendment, is unable to be present this evening—has no trustees and yet it is to be required to tell its members to complain to non-existent trustees. It is also not in the habit of referring to itself as "the union". It quite rightly prefers to use the title which has been granted to it by Royal Charter. The statement would prevent it from doing so.
What I am therefore proposing is that the certification officer should have power to allow trade unions to modify the general statement. Obviously, he will have to ensure that the general principles of the requirements in the statement are observed, but what is proposed would permit an organisation to delete any clearly irrelevant material, such as a reference to trustees when it does not have any, or to insert its own proper name in the statement.
In correspondence the Minister of State at the Department of the Environment suggests that,
"provided that the required form of words appears in the statement to members, the Society … will be free to take reasonable steps to help ensure that its inclusion does not confuse or antagonise members. This could include, as the Society suggests, making it clear that the mandatory form of words appears in the statement in order to satisfy particular requirements of the law".
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That, would mean that the chartered society would put out a statement including the words, "You can complain to the trustees of the society" and then having to have a subsidiary clause saying, "Sorry, but we have not got any trustees". It seems to me that that is too stringent a demand. Therefore, I am proposing that the certification officer should have power to allow trade unions to modify the general statement. In general, the demand for inclusion in the statement of trustees is inflexible. My amendment is focused on at least making the statement realistic and honest in the particular case of individual organisations.
I hope that the Government are able to accept this amendment because it does not alter the meaning of the statement; it just enables it to be true to the facts of the case. I beg to move.
Lord McCarthy: This is the most silly thing that we have had so far. I hope that the Government can correct it. It is Gilbertian and Pythonesque. It is the action of a Ministry of Silly Words that an organisation is told, as a way out of the situation that the Government have created, that it has to print the words, but underneath it has to say, "Don't worry, this is all rubbish". If ever there was a way of bringing the law into disrepute and if anything was ever completely daft, it is this provision. Surely the Minister can accept the amendment.
Lord Wedderburn of Charlton: Before my noble friend sits down, will he suggest to the Government Front Bench that they allow another document in a separate envelope?
Lord McCarthy: That may be giving the certification officer yet another task.
Baroness Denton of Wakefield: Perhaps the noble Lord will accept that, for the main part, I address my answer to the noble Baroness, to whom I listened with interest. I well understand the points that she raised. I know that she has been involved in discussions with my honourable friend the Minister concerned with this matter. The new statement which unions will be providing to members about the conduct of their financial affairs should certainly include the form of words set out in Section 32A(6) (a). Without requiring that, I fear that unions might not give their members sufficient information to help them identify the possible route by which they can pursue worries about the conduct of their union's financial affairs.
However, as has been remarked, we recognise that a mandatory form of words could not be expected adequately to cover the circumstances of all unions. That is why we have the provisions in Section 32A(6)(b), which allow a union to,
"include such other details of the steps which a member may take for the purpose … [which] the trade union considers appropriate".
In addition, it will be open to a union to comment on the mandatory form of words in any way that it sees fit. I do not share the noble Lord's conviction that this is a way of adding something unfortunate. These freedoms, used properly by a responsible trade union, should easily enable it to avoid any risk, no matter how remote, that the form of words may confuse its members. So, if a union was, for example, one of the

1427
special registered bodies which uniquely are allowed to be trade unions while not being unincorporated associations, it could certainly tell its members that the form of words was being included to satisfy the statutory requirements but that it had no trustees if that was the case.
The idea of giving the certification officer some discretionary power to modify the form of words to be used by particular unions would be very problematic. By what criteria would the certification officer be expected to decide on whether any particular change would produce a result that was more desirable than the form of words sanctioned for use by Parliament? Could the certification officer completely change the form of words so that it became virtually unrecognisable? How would he deal with requests (which might be made by many unions) for him to exercise his discretion?
I know of no precedent in employment law for giving the certification officer the power to modify the use in documents of a form of words which has been enacted by Parliament. I am far from sure that he would want any such power. I certainly cannot see any good case for the particular discretionary power that the amendment proposes.
The noble Baroness said that members of the Chartered Society of Physiotherapy are not used to the society being described as a trade union, but the fact remains that the society has that status in law. Indeed, the society has applied for and holds a certificate of independence issued by the certification officer, and appears as a trade union in the list of such bodies published each year by the certification officer. As a trade union, the society gets certain benefits that are available only to such bodies, for example, the limitation on the amount of damages which can be awarded against it in certain tort proceedings and the right to enforce rules that would otherwise be deemed to be in restraint of trade. There are also tax advantages. Its members are also protected against dismissal and actions short of dismissal on grounds of union membership because the society is an independent trade union.
For those reasons, although I well understand why the noble Baroness tabled this amendment, I cannot be sympathetic to the argument that the form of words should be modified or modifiable for special registered bodies such as the society. I hope that the noble Baroness will accept that we have given very careful attention to the concerns which prompted this amendment. I hope also that, having heard my explanation, she will find it possible to withdraw it.
9.30 p.m.
Lord McCarthy: Before the noble Baroness sits down, she asked for an example. She does not know of an example, but the most precise example is in the instrument of amalgamation. The certification officer himself has powers. The legislation sets out in broad terms what the instrument of amalgamation must contain. The certification officer has issued guidelines to unions telling them what needs to be described in detail in an instrument of amalgamation. The unions send the words in and the certification officer agrees
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them, corrects them or modifies them. We are talking about long statements, all based on a series of principles, embodied in a statute and interpreted by that very officer.
Baroness Denton of Wakefield: I thank the noble Lord, Lord McCarthy, for that information. However, the Government still feel that we are taking the right path on this matter.
Baroness Robson of Kiddington: I find it absolutely staggering that a mandatory statement has to be included which contains an untruth, which is the situation here. The Chartered Society of Physiotherapy has no trustees, but in a mandatory statement it is supposed to send out to its members the notice, "Please complain to the trustees if you have anything to complain about". I cannot for the life of me understand why the certification officer should not have the right to alter that mandatory statement to comply with the facts of life. It is completely incomprehensible to me, but it is much to late to press the subject. I shall come back to it on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 34 not moved.]
Clause 9 agreed to.
Clause 10 [Investigation of financial affairs]:
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 35:
Page 15, line 18, leave out ("Certification Officer") and insert ("Commissioner for the Protection of Trade Union Members").
The noble Lord said: I feel the need to trouble the Committee with the amendment which the Committee will see is somewhat odd. It relates again to the certification officer. Its purpose is to remove the certification officer as the officer who appoints inspectors. It does not challenge the structure that the Government want. It raises the question of who should appoint and deal with inspectors. I have inserted the Commissioner for the Protection of Trade Union Members. I put that in just once, but if the amendment were carried that officer would have to be the subject of a substitution for the next few pages. I was advised that that was the right way to raise the issue in principle.
We have discussed the certification officer. I am conscious that the Minister has kindly said that he will reconsider his functions. I move the amendment because it raises further issues germane to the reflection into which he is now entering.
I shall try to summarise the points under two headings. The first relates to the issue that I raised previously, but it is in a new form here. When the certification officer is made the organiser of inspectors and the central point to which the inspectors report, he is in the middle of a most important area not just of civil but of criminal law. Without going through them, if the Committee will look at Section 37A(7) and Section 37B(6) it will find that the right to silence and the right to refuse to produce documents are raised. The person who is the counterpart to the union, or it may be officials, is the certification officer. So here I raise my previous point in a new form. Is it right that

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the person who is the administrative organiser of trade union lists and so forth, and is also the first instance judiciary in certain trade union litigation, including disputes about elections, political funds and amalgamations, should be in that position? That is a link with what went before.
The second point is a new one. In our curious constitution, of which when I look at written constitutions I become usually more fond, we appoint an inspectorate, and we make it responsible to a Minister. The Health and Safety Executive has taken over factory inspectors and, although they do not speak much about it, the last point of responsibility is the Secretary of State for Employment. The Wages Inspectorate, although the Government are phasing it out, is, in the last resort, similarly responsible. Similarly—I do not know whether I dare mention them, but I will—company inspectors, for investigations under the Companies Act, for many years have been appointed by the Secretary of State for Trade and Industry. Ultimately he or she bears the responsibility.
In all those cases, and in a number more, the Minister can be asked a Question in this place. It is a democratic responsibility which is ultimately at stake. I know of no precedent for inspectors appointed with powers which are equivalent to those of company inspectors under the Companies Act. The noble Lord may have a precedent but I know of none which is parallel to this case. I know of no inspector who is appointed by another functionary with statutory powers who, I apprehend, is not—although the matter is cloudy—a person for whom in this and in every respect the Minister would be answerable in the Chamber.
Perhaps, if I can engage the Minister's attention, I may give an example of why that may not always be the case. At a critical point the certification officer must decide whether a prosecution should be launched on the basis of an investigation. That is not a matter for which a Minister would normally be responsible in the Chamber. It is a decision more like that of an Attorney-General—indeed, we know that it is, because in Scotland the Procurator Fiscal and not the certification officer is involved. That is not a matter for which the Minister would be answerable in the Chamber. There are other examples in the clauses which are not so clear but which are questionable.
This is an extremely important matter. The Government have the place of the certification officer in trade union law so wrong that it bursts out of every seam of the Bill. We are dealing with a Bill which will set up a series of inspectors. Members of the Committee will notice that, because they are the counterpart of company law, I make no complaint about their powers. Inspectors of this kind seem a little over the top: nevertheless, here they are. But they are not responsible to any Minister. The Government dared not have them appointable by the Secretary of State. If they dare, why did they not have them appointable by the Secretary of State just as company law inspectors are appointable by the Secretary of State for Trade and Industry? Why? I suspect that
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there, are two reasons. The first is because the Government knew that that would kick up a fuss and that people would ask what they were doing. That really would be state control of trade unions and it would be on the face of the Bill instead of being merely a line under it. The second reason is because the Government believed that they had made the most wonderful discovery in the certification officer, who appeared to be able to do anything. In previous Bills he has done such a great deal that they thought they would include him in this Bill. I prefer the second explanation but I believe that we have an example of slovenly drafting.
Many other points are raised in connection with Amendment No. 35. However, I hope that the Minister will take the point about responsibility with him into the journey in the night which his reconsideration of the place of the certification officer will lead him. We hope that he will come back on Report with an answer which is better than the Bill. I beg to move.
Baroness Denton of Wakefield: The noble Lord, Lord Wedderburn, acknowledged that, in speaking to a previous amendment, my noble friend said that he would take away the issue of the role of the certification officer. However, perhaps I may explain why the Government believe that the amendment is inappropriate but acknowledge that the overall issue will be examined. The certification officer is a natural point of contact for individual union members anxious about possible financial irregularities. The independent certification officer is well placed to decide whether to exercise those powers. It appears to us that in those respects he is much better placed than would be the commissioner for the rights of trade union members.
We do not believe that the availability of the new powers need in any way damage the ability of the certification officer to fulfil the other important functions of his office. The certification officer already hears complaints from union members against their unions about a variety of matters. He is and has always been the enforcing authority who can prosecute unions for particular offences and has done so. I am pleased to say that none of those tasks has damaged the certification officer's independence, nor has it jeopardised his reputation among trade unions.
There is no reason to assume that the availability of those new powers for the certification officer need be detrimental to either his reputation or his ability to perform his present functions. Indeed, I am sure that his reputation will be enhanced, not least among trade union members to whom he will now offer significant assistance if they have justifiable concerns.
Indeed, we are fortunate to have in the certification officer an independent authority who is both well established and well regarded. His office has contacts with and knowledge of the trade union world which enable him to exercise these proposed powers effectively and independently.
As regards one small point which arose, the Health and Safety Executive is responsible to the Health and

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Safety Commission and not to Ministers. That point should be clarified. However, I hope that the noble Lord will not press the amendment this evening.
9.45 p.m.
Lord Wedderburn of Charlton: I shall not press the matter because the Minister is to reconsider it. However, I hope that two points in particular will be reconsidered carefully. First, the factory inspectors who are now in the general inspectorate are responsible to the Health and Safety Executive. In certain respects, the Health and Safety Executive is responsible to the Health and Safety Commission. However, I hope that the noble Baroness is not saying that the Secretary of State is not answerable for the actions of those bodies down the line. That would be an astonishing doctrine. The matter is not as clear as that, and it appears to be clear otherwise that in this case the Secretary of State would not be able to be pressed as regards any responsibility for the inspectors.
I hope that when we return to the matter on Report we can take the central point and examine it further; namely, whether the Secretary of State is ultimately answerable for the actions of those inspectors. The noble Baroness did not answer that question. I did not expect her to because this is to be reconsidered. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Turner of Camden Baroness Turner of Camden moved Amendment No. 36:
Page 16, line 27, leave out ("members of his staff or other") and insert ("competent members of his staff or other competent").
The noble Baroness said: This is a fairly simple amendment. The present clause which we seek to amend says that:
"The Certification Officer may appoint one or more members of his staff or other persons as an inspector or inspectors to investigate the financial affairs of a trade union and to report on them in such manner as he may direct".
The Minister is to return to the question of the functions of the certification officer. However, the amendment seeks simply to ensure that anybody appointed as an inspector will be suitably qualified. In fact, we say that they should be:
"competent members of his staff or other competent persons".
At present the Bill states that he may appoint one or more members of his staff. However, an inspector will deal with the financial affairs of the union, which can be a fairly complex and specialised matter. It seems to me important to ensure that the people so appointed are appropriately qualified and competent to do the job. For that reason we tabled the amendment. I beg to move.
Baroness Denton of Wakefield: I fully appreciate the concern of the noble Baroness that those appointed to carry out an investigation into a trade union's financial affairs must above everything else be competent to do so. I am glad we have common ground over this issue. However, let me reassure the noble Baroness that the provisions of new Section 37B, as currently drafted, already address this point. The proposed new Section 37B will give the
1432
independent certification officer the power to appoint one or more persons to investigate the financial affairs of a trade union. This provision gives the certification officer discretion to decide whom to appoint to conduct such investigations. He is, therefore, already making a judgment about the capacity of the appointed person to carry out the investigation.
I believe it is unnecessary to question the certification officer's ability to decide such matters. We must remember that the certification officer is independent, but his activities are funded by public money, and he is accountable in the normal way for his use of that money. If the certification officer knowingly appointed an incompetent person to conduct such an investigation he would be acting improperly in discharging his duties. The normal sanction for misuse of public money would therefore apply. Indeed, the threat of investigation by the Public Accounts Committee would surely deter the certification officer from appointing persons whom he did not consider to be competent.
We believe that the provisions of new Section 37B, as drafted, will ensure that any investigation of a trade union's financial affairs will be properly conducted by those competent to do so. I hope I have been able to reassure the noble Baroness.
Baroness Turner of Camden: I have made a careful note of the final sentence of the noble Baroness when she said that new Section 37B, as drafted, will ensure that people who are appointed will be properly qualified and competent to carry out investigations. I do not intend to press the amendment at this stage, but I am grateful for the opportunity to raise the point and to have the assurance that has just been given. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 10 agreed to.
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 37:
After Clause 10, insert the following new clause:
("Power of court to grant relief in certain cases
After section 43 of the 1992 Act there shall be inserted—
"Power of court to grant relief in certain cases.
43A.—(1) If in any proceedings for negligence, default, breach of duty or breach of trust against an officer or official of a trade union or a person employed as an auditor by the trade union it appears to the court that that person is Or may be liable in respect of the negligence, default, breach of duty or breach of trust, but that he has acted honestly and reasonably, and that having regard to all the circumstances of the case (including those connected with his appointment) he ought fairly to be excused for the negligence, default, breach of duty or breach of trust, that court may relieve him, either wholly or partly, from his liability on such terms as it thinks fit.(2) If any such person has reason to apprehend that any claims will or might be brought against him in respect of any negligence, default, breach of duty or breach of trust, he may apply to the court for relief; and the court has the same power to relieve him as if it had been the court before which proceedings had been brought." ")
The noble Lord said: This matter was discussed in another place but not very satisfactorily in my view or, I believe, in my noble friend's view. The nub of the issue is simply the following. Given that a number of

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new liabilities, and in particular criminal liabilities, are created in the Bill, I believe there should be here something which one finds elsewhere in a number of different forms; namely, a provision which allows the court, when it thinks that the official concerned or the union concerned has acted reasonably and ought fairly to be excused—I take the key words from the amendment—to excuse him or the union either wholly or partly. Those four final words also appear in the amendment. The liability would be construed on such terms as the court thought fit.
This is a simple type of clause. I have based it on a form of words taken from other legislation. I should have thought it was clear that, when one is increasing the area of criminal liability, a provision of this kind was necessary so that the courts did not always have to try desperately to reflect—courts sometimes have to do this with legislation which is insufficiently flexible —in what appears to be an inadequate sanction or penalty an offence which appears to be absolute. It is a useful device and I do not know of many complaints about it in the areas in which such provisions have operated.
The only reason for going further in moving the amendment, which I had hoped would receive a fair wind, is the possibility of receiving the same reply as was given in the other place. The nub of the Government's reply in the other place was that it was inconceivable that any such provision could possibly apply to any provision under the Bill. If I have not put that correctly the noble Baroness will correct me, but that is what I understand to be the nub of the Government's position.
Apart from the danger of ever stating anything for ever or never, which is always a very dangerous position to take in all affairs in life, it is also not true that under the Bill there is no conceivable case. For example, under the new Sections 37A and 37B there could be a situation in which someone refuses to produce documents which an inspector requires or does not do other things which the inspectors, in their investigations and under their powers, want him to do.
I accept that it is true that in all such cases most of the offences in the Bill relate to lawful refusals, or even occasionally fraudulent design. Those are not likely to be cases to which the amendment would ever apply. However, there are cases to which it could apply. It would be of benefit to the statute book and the courts to be able to measure the particular circumstances of an offence against criminal provisions by relation to flexible powers of this type. I beg to move.
Baroness Denton of Wakefield: I am grateful to the noble Lord for his explanation of the amendment. I share his horror of the word "never". However, I must tell the noble Lord that the effect of the new clause would seem to be either to confuse and distort the intended and proper operation of employment law or to create a novel and unjustifiable special protection for individuals who happen, for one reason or another, to have a particular relationship with a trade union.
As far as concerns employment law the new clause could mean that, where a court found that a union
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officer or official had breached a duty giving rise to an offence under Section 45 of the 1992 Act, it would then have to consider yet further issues about that person's motivation. However, Section 45(1) and (4) offences are already expressed with reference to motivation.
Thus Section 45(1) offences relate to circumstances in which a union "refuses or wilfully neglects" to perform certain duties. The Section 45(4) offences similarly refer to "wilfully" altering a document "with intent to falsify". So the new clause could distort the intended effects of the law by setting an impossible task. Its terms would require consideration of any plea of mitigation based on the proposition that the person concerned nonetheless acted honestly and reasonably.
As regards the new offences to be added to Section 45 by Clause 11, they already contain the appropriate protections to ensure that individuals should not be prosecuted (or convicted) where that should not happen. By way of example: first, Section 45(6), which provides that it is a defence against charges of contravention of requirements imposed by new Sections 37A(3) and 37B(4) for a person to prove that relevant documents were not in his possession and that it was not reasonably practicable for him to comply; and, secondly, Section 45(7), which provides that it is a defence for an official or agent of a union charged with destruction, and so on, of relevant documents to prove that,
"he had no intention to conceal the financial affairs of the trade union or to defeat the law".
As expressed, however, the provisions of the new clause would be of even wider application. Proceedings for "negligence, default, breach of duty or breach of trust" could be brought against the classes of person described in the new clauses in a number of ways.
Such proceedings could be brought against a union official by a member of the union who claimed that some duty owed to him by that official, under the union's rule book, had been breached. It could also be quite possible that a union auditor might be the subject of proceedings for negligence brought by the union itself.
I remain unconvinced that there is any sound basis for concluding that, in such cases, the kind of special arrangements the new clause proposes would be justified.
Is there real evidence that the courts have not had proper regard to the circumstances of any particular case before reaching a decision in such proceedings? Is there an instance where the courts did not relieve from an individual a liability from which they concluded that he ought to be "fairly excused"? I quote from the new clause.
I understand that the noble Lord believes that there is indeed a case for a new clause. However, we are unconvinced. We should only enact such special privileges and protections where they can be fully justified; and nothing that we have heard today provides such justification. I hope that answer will give the noble Lord more satisfaction than the reading of the proceedings in another place. I hope that he will consider withdrawing the amendment.
10 p.m.
Lord Wedderburn of Charlton: The response is different from that in another place. I am not sure, with great respect, that it is any better. I understand that there are the offences to which the noble Baroness referred. I said that a number depend upon intention or even fraud to which the new clause might not apply. I referred—the noble Baroness did not—to offences such as refusing to produce documents to the inspector. Someone who was rather resolute in the wrong quarter might commit an offence in that respect. He might have got the position wrong.
The noble Baroness stated that one would have to consider the provision at a separate stage of the proceedings. The amendment provides that the court "may" relieve that person wholly or partly. It is purely a discretionary power. The provision is partly based upon the Companies Act. To listen to the noble Baroness one might think that administration of the Companies Act must be completely distorted and confused by such provision. That provision has existed for decades and no one has regarded it as improper. In fact, the courts regard it as useful. As I understood the noble Baroness, she said that the courts might have to deal with a few of the cases on their merits, taking into account all the circumstances. The court often has to do that when it passes sentence or imposes a sanction. Sometimes if one's offence is too absolute it is awkward because it looks as though a sentence is being imposed which is not up to the breach of such an absolute offence.
I simply seek to introduce a tiny bit of flexibility. I hope that the fact that it is novel in trade union law would not be a barrier in this Chamber. Most good ideas are novel. It is a good idea to use this provision as it is used elsewhere.
Perhaps I may say this to my noble friends on these Benches. This is a tiny matter which would help the administration of justice but, it is true, might sometimes allow a trade union official to be exculpated from a crime which might also apply to a director of a company or other officer. But the Government take up distorted postures of logic in order to resist the provision. They are prepared to argue throughout the night. I am not. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 11 agreed to.
Clause 12 [Disqualification of offenders]:
The Deputy Chairman of Committees (Lord Cocks of Hartcliffe): Clause 12, Amendment 38. Before calling Amendment 38, I should point out that if it is agreed to I cannot call Amendments Nos. 39 to 42 inclusive because of pre-emption.
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 38:
Page 22, leave out lines 10 to 20 and insert:
("45B.—(1) Where a person holding a position in a trade union to which this section applies is convicted of an offence under section 45, the court may in its discretion disqualify him from holding any such position
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(a) where he is convicted under subsection (1) or (5) of that section up to a maximum of two years, or

(b) where he is convicted under subsections (4), (7), (8) or (9) of that section up to a maximum of 10 years.

(1A) A trade union shall use its best endeavours to ensure that a person convicted of any such offence shall not hold any such position during the period in which he is disqualified.").
The noble Lord said: It is in a way a shame that this important matter comes at this point of the evening. But I am sure that that will not stop the Committee considering it carefully, because it involves an important matter of human or civil rights. When a statutory provision says that someone should be automatically disqualified from a post or a position, or from some benefit which would otherwise be his or hers, it is doing something important. When it does it, as this provision does in the Bill, by way of an automatic disqualification, saying that given certain criminal offences someone will be disqualified automatically —and I accept that here we have a relationship with the previous amendment; it is the same thought—for five years or 10 years according to the criminal offence, I should like to ask the Ministers whether there is a precedent in any other area of the law (it certainly is not in company law, but it can be anywhere in history) in English legal history of automatic disqualification of this character in the Bill?
If a trade union official were convicted, the court might think that there were mitigating circumstances to some degree. Under the previous amendment, which we can put aside, it could still say, "Well, we will amend and modify the penalty". But it cannot do that here. If it convicts, the disqualification is automatic. Suppose the court gave a suspended sentence, the disqualification would still be automatic.
Of course this is legislation by reference, about which we are all now experts, but it is misleading. For example, it refers to Section 45(1), but Section 45(1) includes an enormously wide area of offences relating to accounts, refusal to produce rules, and indeed superannuation schemes. Then again we have the refusal of the demands of the inspectors. The offences are wide, and the automatic disqualification is not justified, because there can be cases—I put it no higher than that, but as high as that —where someone who is convicted of one of these offences does not deserve, and the court may say does not deserve, to be disqualified from taking any part in a trade union executive for 10 years.
I am not sure how the Government justify to themselves that imposition of 10 years. I now quote the Company Directors Disqualification Act 1986 because it is relevant on this point. In that Act the maximum disqualification for the most heinous fraud, which will have brought about loss far more than any possible fraud under this Bill, is 15 years, with a minimum of two years. Most of the others are five year offences. Here I have said that surely the more minor offences should have a disqualification of two years, and very well, if the Government must, up to a maximum of 10, although that seems to me a long time in respect of these offences. But I accept that the subsection (4) (7) (8) or (9) offences, as in my

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amendment and as set out in the Government's Bill, are serious offences, and so I have left the Government with that 10 year maximum.
The main point is that there must be a way—and here I speak in respect of my noble friends' amendments which follow mine—there must be the possibility for the court to have discretion in respect of disqualification from a civil position in an organisation, especially where it decides that the defendant is guilty but that the right penalty is a short sentence, a small fine or a suspended sentence. I beg to move.
Baroness Turner of Camden: I support the amendment moved by my noble friend. As he indicated, I put down a similar amendment, but his does rather better and more comprehensively what my noble friend Lord McCarthy and I sought to do in our amendments. Amendment No. 38 seeks, as ours do, to ensure that the court has discretion about disqualification and should have such discretion for periods of up to a maximum of two and, in the more serious cases, up to a maximum of 10 years. I share his view about the length of time: 10 years seems a long time, but the amendment would provide for up to a maximum of 10 years in the more serious cases.
If we do not have an amendment on these lines, it will mean that the court has no flexibility at all when it considers those offences which may be of various kinds, some perhaps not large at all. Some of the minor offences certainly do not justify the period of two years which is provided for without any flexibility. It seems sensible to me that, if the issues are to go before a court, flexibility should be available to that court when judging them.
I also like the last paragraph in my noble friend's amendment, which states that:
"A trade union shall use its best endeavours to ensure that a person convicted of any such offence shall not hold any such position during the period in which he is disqualified".
The use of the term "best endeavours" is reasonable in the circumstances. Unions are large organisations and it is conceivable that someone could slip through the net and stand for election and even be elected, particularly if there is a long period of disqualification like 10 years. Therefore, simply to say that the trade union should use its best endeavours in such circumstances seems to be reasonable and suitable, in view of the provisions of the legislation. I support my noble friend's amendment.
Baroness Denton of Wakefield: Perhaps I may reassure the noble Lord, Lord Wedderburn, that we recognise that he has raised a very serious issue and, whatever the hour of the evening, we would not treat it lightly. However, perhaps I may also say that I note that, when he brings forward a new proposal, he takes credit for it being novel; when we bring something forward, we have to provide a precedent.
The amendments would produce a quite unworkable and inappropriate system for the application of disqualification from union office. Conviction for a Section 45 offence is a matter for the criminal law courts—specifically, magistrates' courts (in England and Wales). Such courts are properly equipped to deal with prosecutions for such offences and to determine
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when they have been committed. They are, however, not best placed to make decisions about whether a person should be disqualified from holding any of the offices to which the new disqualification penalty will relate.
In passing, I point out that in practice offences under Section 45 are prosecuted by the certification officer, and his record shows that he will not prosecute for any trivial or technical offence.
All the offices are ones which the law requires to be filled through election by union members and it is to the civil courts, not the criminal courts, that a member would complain if, for example, he believed that his union had not satisfied its statutory duties in respect of such elections. The idea that it should be up to any court at its own initiative to impose disqualification from union office on any person would be fundamentally inconsistent with the present law on election to union office. Under that law, it is up to members to bring complaints to the courts if they believe that their union has breached its duties in respect of election to union office. The proposed provisions in Clause 12 are consistent with that principle. The provisions in the amendments are not.
Establishing fixed periods for disqualification, as opposed to the variable system envisaged by the amendments, has important advantages. The proposed fixed periods of five and 10 years achieve three things.
First, they distinguish between the relative gravity of the offences which result in disqualification from office. Secondly, they relate the disqualification period to the statutory election requirements, since the latter provides for election to union office at intervals of no greater than five years. Thirdly, they avoid the need for a court to address the question of what period of disqualification is appropriate in any given set of circumstances. That, in turn, will also give a member who is contemplating such proceedings greater assurance as to the nature of the outcome.
I understand the reason behind the noble Lord's amendment and I hope that he will understand that we do not reject it lightly.
Lord Wedderburn of Charlton: That reply shows no concept of how disqualification works in other areas. I understand the opposition of the noble Baroness to the amendment. My amendments have often been called misguided and, more frequently, wrong, but it is quite another thing for them to be called unworkable. I defy the noble Baroness to show that the amendment is unworkable. One of the reasons why it is not unworkable is that precisely that kind of discretion, which is what the noble Lady seemed to dislike most, operates under the Company Directors Disqualification Act 1986. Under that Act the court has a discretion in regard to disqualification.
Noble Lords will note that it is a proper, general principle of the law of associations—namely, that, if someone is to be disqualified and is to lose his civil rights, then it is a sensible idea to give the courts some kind of discretion as to the period of disqualification.
I hope that I did not hear the noble Baroness correctly. She appeared to state that, because the officials concerned were elected, it was fundamentally

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contrary to the system of election to have a system of discretionary disqualification. However, the Bill states that it is permissible to disqualify the same people so long as it is an automatic disqualification. What do the Government mean by saying that there cannot be disqualification at discretion because the officials are elected, but that there can be automatic disqualification?
I accept that we are not discussing trivial crimes. The prosecution would be under Section 45 for the most part. It is not true to say that members would always go to the civil courts in respect of disagreements with their unions. One knows of cases where members have tried to interest the prosecuting authorities in matters concerning particular officials. The Government have not taken on board the kind of frontier that the Bill crosses. The Bill illustrates that, wherever a choice has to be made, the choice is made against the trade union; it is an attempt to break down the trade union, to make the union lose funds and its capacity to operate strategically for its members. That is why the proposal is for automatic disqualification. There is no reason otherwise not to have a discretion in the court.
I have often criticised members of the judiciary but I would be very sympathetic to them or to magistrates in trying to operate such a provision. They will see someone in front of them and say, "We are very sorry, but you wilfully refused to produce the document for the inspector, and, therefore, we have to find you guilty; we shall fine you £100". He or she will say: "But that means that I am disqualified for five years". And they will say: "We're very sorry. We can't do anything about it". One will not get much respect for this law on that basis except among those who want to do down trade unions.
Lord Hacking: Before the noble Lord withdraws the amendment, perhaps I may briefly intervene. I speak as the only Back-Bencher who is left on this side
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of the Committee, and almost the sole Back-Bencher, apart from the noble Lord, Lord Wedderburn, in this Chamber at all.
The point raised comes as somewhat of a surprise to me, though I have been practising law for nearly 30 years; and that may be of particular surprise to the noble Lord, since he instructed me in law before that period of 30 years had started. It has been my experience time and time again that mandatory sentences in which the courts do not have discretion are unsatisfactory. Indeed, it usurps the essential role of the court, and that is to mete out justice according to each case in front of it according to what it believes to be the right standards of justice for that case. For that reason, I am disturbed to hear my noble friend's answers to Amendment No. 37 and now to Amendment No. 38. I rise to my feet only to express an anxiety. I hope that my noble friend will hear it from me, and indeed from other Members of the Committee.
Lord Wedderburn of Charlton: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 39 to 42 not moved.]
Clause 12 agreed to.
Viscount Goschen: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Cardiff Bay Barrage Bill
Reported from the Select Committee with amendments, and recommitted to a Committee of the Whole House.
House adjourned at twenty-two minutes past ten o'clock.