Lords Sitting of 18 March 1993

Preamble
The House met at three of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of Ripon.): The LORD CHANCELLOR on the Woolsack.

Audit Services: Cost-Effectiveness
Baroness Gardner of Parkes Baroness Gardner of Parkes asked Her Majesty's Government:
What organisations are obliged to use the district auditor and what control do these organisations have over the cost-effectiveness of the service provided.
The Parliamentary Under-Secretary of State, Department of the Environment (Lord Strathclyde): My Lords, the bodies whose accounts must be audited by auditors appointed by the Audit Commission are specified in Section 12 of the Local Government Finance Act 1982. The principal audited bodies are local authorities, probation and pension authorities, drainage boards and health service bodies. The commission, not the body being audited, is responsible for the cost-effectiveness of the audit service.
Baroness Gardner of Parkes: My Lords, I thank my noble friend for that Answer. My concern is with who regulates the regulators. I serve on a health authority. We are most concerned when told how many days are required and the amount is set for us. It is entirely outside our control. Can my noble friend tell me why there is no element of competition or any way in which the bodies using the service can speak up for better terms or for competitive quotes? At the moment anyone using a private accountant is querying his expenses.
Lord Strathclyde: My Lords, the whole point of the Audit Commission is to make sure that the audit is done in the proper way. I sympathise with my noble friend's point as to who regulates the regulators. The hourly rate is set by the Audit Commission following consultation with local authorities, health service organisations and the accountancy bodies. The number of hours is negotiated by the auditor and the body concerned, but the Audit Commission super-vision system includes checks on whether the number of hours is in fact reasonable.
Lord Bruce of Donington: My Lords, will the Minister cause an investigation to be made into why the district auditor to the Westminster City Council finds it very difficult to exercise his powers? Bearing in mind the quite open scandals that have occurred in connection with the cemeteries and also the gerrymandering as regards types of building, will the noble Lord ensure that the investigation is carried out as a matter of expedition?
Lord Strathclyde: My Lords, I shall certainly look into whether or not there is the problem described by the noble Lord.
Lord Finsberg: My Lords, following the answer to my noble friend Lady Gardner of Parkes, can my noble friend say why it is not possible for the local authority or the health authority to go to whatever audit firm is needed provided that guidelines have been laid down by the Audit Commission in exactly the same manner as, for example, guidelines were laid down for those valuing for council tax purposes and no one was forced to use the district valuer? As we believe in privatisation, does my noble friend agree that the opportunity should be available for responsible bodies to go to outside firms if they wish?
Lord Strathclyde: My Lords, it is government policy, and has been for some years, that the Audit Commission should be the responsible body for making sure that the audits of public bodies are done in the proper way.
Lord Williams of Elvel: My Lords, can the Minister advise us how we can complain about the Audit Commission if we are not satisfied—as the noble Baroness, Lady Gardner of Parkes, is not satisfied —with the service which is given? We are told that we are all customers of the Inland Revenue. Presumably, health authorities and other bodies are customers of the district auditor and the Audit Commission. Can the Minister tell me how, as customers, we set about getting proper value for money?
Lord Strathclyde: My Lords, customers of the Audit Commission should complain first to the commission; secondly, to the National Audit Office, its auditors; and, thirdly, to my department, the Department of the Environment.
Lord Cockfield: My Lords, perhaps I may ask my noble friend a simple question. If the audit is carried out for the purposes of the Audit Commission, why should that body not pay for it?
Lord Strathclyde: My Lords, the Audit Commission is set up as a body to be fully funded by the fees which it charges its customers.
Lord Grimond: My Lords, harking back to the question asked by the noble Lord, Lord Bruce of Donington, can the Minister say exactly what powers the auditors have if they are dissatisfied with the accounts which they are auditing?
Lord Strathclyde: My Lords, I believe that that question is beyond the scope of the one of the Order Paper.
Baroness Gardner of Parkes: My Lords, will my noble friend the Minister ensure that the consultation which he has referred to between the body setting the charges and the one paying it is really being carried out? Will he assure the House that that will be so because, as I understand it, the charges are simply imposed?
Lord Strathclyde: Yes, my Lords. I shall make sure that consultation is being carried out. I shall write to my noble friend.
Lord Clark of Kempston: My Lords, does my noble friend agree that, as regards the Audit Commission and government departments, there are very many personnel looking for value for money? Would it not be a good idea to extend that to district audits?
Lord Strathclyde: My Lords, currently the Audit Commission does not audit government departments: it is done by the National Audit Office. That is another issue altogether.
Lord Williams of Elvel: My Lords, who, then, audits the National Audit Office?
Lord Strathclyde: My Lords, it is trusted to do its own auditing, but ultimately such bodies are responsible to Parliament.

Rail and Coal Industries: Pension Funds
3.8 p.m.
Lord Ezra Lord Ezra asked Her Majesty's Government:
What are their intentions with regard to the pension funds of British Rail and British Coal, if those industries should be privatised.
The Minister of State, Department of Transport (The Earl of Caithness): My Lords, we have given assurances that we intend that the pension entitlements of serving employees and pensioners will be safeguarded on the privatisation of British Rail and British Coal.
Lord Ezra: My Lords, I thank the noble Earl for repeating the assurances previously made. Nevertheless, is he aware that there has been public disquiet about the possibility that the Government might take over that part of the pension funds of the coal and rail schemes relating to pensioners and deferred pensions? Is the Minister aware that there are, in fact, about 700,000 persons involved of whom I am one? Is he further aware that their concern is that if that takeover were to happen they could be deprived of benefit improvements which might otherwise accrue to them? In those circumstances, can the Minister give an assurance that, in the event of privatisation, no firm proposals will be made for dealing with those funds without full consultation with the trustees concerned?
The Earl of Caithness: My Lords, let me make it absolutely clear that in no way would we countenance the pension scheme funds being used for purposes other than for paying for pensions.
Lord Clinton-Davis: My Lords, is the Minister aware that, following the betrayal of retirement pensioners and the poor by the VAT impost on fuel bills, coupled with a succession of broken pledges which were given at the election, the people of this country have absolutely no faith in assurances given by Ministers about anything at this stage? Does he not agree that it is imperative, as regards the kinds of assurances which he has given this afternoon, that
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existing pension schemes need to be secured by statute? Therefore, will the Minister give the House an assurance that the Government will in fact be supporting the amendment to Clause 116 of the Railways Bill, which is being moved in another place by the Labour Opposition, to achieve precisely that objective?
The Earl of Caithness: My Lords, what is for another place is for another place.
Lord Clinton-Davis: My Lords, will the Minister therefore give an assurance that those rights will be protected not by verbal assurances from him and his colleagues but by statute?
The Earl of Caithness: My Lords, the noble Lord heard what I said clearly in my first Answer. They will be safeguarded. A Bill will be coming—
Lord Clinton-Davis: My Lords, by statute?
The Earl of Caithness: My Lords, a Bill will be coming before your Lordships' House.
Lord Barnett: My Lords, I wonder whether the Minister can add to the assurance that he has given, which I welcome, the assurance that if there is an actuarial surplus in those funds the Government have no intention of taking it for themselves?
The Earl of Caithness: My Lords, a surplus was disclosed on the 1990 revaluation of the main BR scheme. It was allocated between the pensioners, the current contributors and BR. A further valuation takes place in April of this year. If a surplus is disclosed, it will be allocated in exactly the same way.
Lord Stoddart of Swindon: My Lords, but suppose there is an actuarial deficit, will the Government guarantee that?
The Earl of Caithness: My Lords, if there is an actuarial deficit, we will be advised on the appropriate method of bringing the pension fund back into balance.
Lord Ezra: My Lords, could the noble Earl give me the assurance about consultations with the trustees for which I asked?
The Earl of Caithness: My Lords, as the noble Lord knows, a consultation document is out on the British Rail pension fund. We have received a number of replies to that paper. The consultation period ended in early March—on 8th March, I believe—and I understand that the trustees were fully informed.

Manufacturing Industry: Government Strategy
3.11 p.m.
Lord Peyton of Yeovil Lord Peyton of Yeovil asked Her Majesty's Government:
Whether, following the Answer given by Baroness Denton of Wakefield to Lord Benson's question on industrial strategy (H.L. Deb. 1st

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February 1993, col. 1), they have given further consideration to publishing a White Paper on this subject.
The Parliamentary Under-Secretary of State, Department of Trade and Industry (Baroness Denton of Wakefield): My Lords, yes.
Lord Peyton of Yeovil: My Lords, I am dumbfounded. Would I be justified in assuming that the word "yes" means that the Government intend to publish a comprehensive White Paper stating what their industrial strategy is? I beg your Lordships' pardon for not having a prepared riposte to that Answer.
Baroness Denton of Wakefield: My Lords, you will forgive me if I take this as a moment of high glory. While congratulating my noble friend on his success with horseracing matters, perhaps I may inform him that on this subject we remain of the view that the publication of a White Paper would not in itself make a real contribution to industrial growth.
Lord Peston: My Lords, I must say that I am now a trifle lost by the answers given by the noble Baroness. Is she not aware that from my experience of your Lordships' House the noble Lord, Lord Peyton, never loses on this sort of matter so, to save our time, the noble Baroness should really give him what he wants now? I understood that the real import of the Question was, "Are we going to have a White Paper?" I cannot understand the answer "yes" in relation to further consideration if it is not going to lead to a White Paper. Why should her department consider these matters further if not with a view to stating its policy in a document? Can the noble Baroness at least clarify what she wants us to learn from this? Will she accept from me (since I have to speak from this Bench on such matters) that I should like to get this over and done with now because I cannot bear the thought of the noble Lord, Lord Peyton, asking the same Question week in, week out until he gets what he wants?
Baroness Denton of Wakefield: My Lords, I am afraid that I cannot help the noble Lord, Lord Peston. It is not our intention to publish a White Paper on industrial strategy. We believe that we are doing it. We believe that Tuesday's Budget showed an absolute commitment to business. We also believe that there is already an excellent publication in this area. I refer to your Lordships' Select Committee report on innovation, which my right honourable friend the President of the Board of Trade has recently reconsidered, among other matters.
Lord Stoddart of Swindon: My Lords, does the noble Baroness not agree—
Viscount Caldecote: My Lords, does my noble friend agree with the widely held view that as we come out of recession, imports will be sucked in a major way thus increasing further the huge deficit in the balance of trade? Further, do the Government believe
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that everything possible is being done to stimulate greater investment by industry on the development of new competitive products to alleviate that problem?
Baroness Denton of Wakefield: My Lords, I am pleased to tell my noble friend Lord Caldecote that we believe that things in this area are moving in the right direction. Manufactured exports are at a record level, and are 6.5 per cent. higher than a year ago. In the latest quarter, business investment was nearly three-fifths higher than in 1981. We constantly hear stories about people looking to source from the quality goods of this country items which had previously been imported.
Lord Stoddart of Swindon: My Lords, does the noble Baroness not agree that the message given by—
Noble Lords: Cross-Bencher!
Lord Benson: My Lords, I wonder whether the noble Baroness recalls that she wrote to me on 23rd November giving a full statement of the Government's industrial strategy. I replied on 1st December. In the absence of a White Paper, would she be willing now to publish that correspondence which discloses the Government's industrial strategy?
Baroness Denton of Wakefield: My Lords, I should be extremely happy to place that correspondence in the Library, as the noble Lord, Lord Benson, requests.
Lord Stoddart of Swindon: My Lords, in spite of that—
Lord Mackay of Ardbrecknish: My Lords—
Lord Stoddart of Swindon: My Lords, no, it is our turn now. I have given way twice and to do so three times would be far too much. In spite of that last answer, does the noble Baroness agree that the message coming through in the Budget was extremely confused in relation to industrial strategy? What the country needs is to have that strategy clarified in no uncertain terms. Will she reconsider the answers that she has already given and advise her right honourable and honourable friends that we need a White Paper and should have one soon?
Baroness Denton of Wakefield: My Lords, I am afraid that I must disagree with the noble Lord, Lord Stoddart. I do not believe that cutting the tax burden on business by £1 billion is at all confused.
Lord Mackay of Ardbrecknish: My Lords, will my noble friend remind the noble Lord, Lord Stoddart, and my noble friend Lord Peyton that the strike rate of government-produced industrial strategies and government-produced national plans is about as good as the strike rate of the English cricket team?
Baroness Denton of Wakefield: My Lords, I wish that I could answer my noble friend by being more loyal to the English cricket team but, regrettably, I must agree with him.
Lord Monkswell: My Lords, in her answers the Minister said that the Government's industrial policy is contained in a report of a Select Committee of your

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Lordships' House. She also advised the House that it is contained in a letter to the noble Lord, Lord Benson. We are now getting terribly confused—and I suspect that the Government are a bit confused. It might be useful if a comprehensive document laying out the Government's current industrial strategy could be made available to the public at large as well as to your Lordships' House.
Baroness Denton of Wakefield: My Lords, I am sorry that I have confused the noble Lord. What I said was that there has been an excellent publication on the subject by your Lordships' Select Committee. That was not the Government's industrial strategy; the report related to the importance of manufacturing industry. Perhaps I may make it absolutely clear that the Government's strategy is to create the climate within which industry can thrive and to ensure that the policies of both the DTI and the rest of government take the needs of business into account.
Lord Eatwell: My Lords, is the Minister aware that the Red Book, published with the Budget, shows that business investment this year will fall by half of 1 per cent., and that her optimistic comment about business investment in an earlier answer is belied by that statistic? Given that business investment is expected by the Treasury to fall this year, will she give an assurance that the increased capital allowances for investment, introduced in last year's Autumn Statement, will be continued for a further year?
Baroness Denton of Wakefield: My Lords, I am sure that the noble Lord would not expect me to make Treasury statements while standing at this Dispatch Box. However, perhaps I may point out that the Budget forecasts included one that manufacturing output was to rise by 1.5 per cent. in 1993. That is important.
Lord Peyton of Yeovil: My Lords, does my noble friend agree that, on reflection, her original Answer to an innocent Question verged uncharacteristically upon the tricky? Will she confirm, or otherwise, that the Government have some ideas on matters such as investment, innovation, taxation, employment training and trade? Would it not be useful for other people also to have the Government's views on those important matters in one document so that they could be understood clearly?
Baroness Denton of Wakefield: My Lords, I apologise to my noble friend if he thought my Answer verged on the tricky. It was meant to be accurate. We shall continue to practise rather than preach. One of the figures that proves that we are doing that is that in February—I am delighted to be able to say this—seasonally adjusted unemployment figures were down by 22,000.
Lord Dormand of Easington: My Lords, as the coal industry plays an important role in industrial strategy, will the Minister tell us how much longer we shall have to wait for a Statement on what is to happen? Is she aware that all kinds of things are happening in the coalfields, including the fact that some pits, as I have
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said in the Chamber before, are literally crumbling? We should have a Statement soon. The matter has gone on for long enough.
Baroness Denton of Wakefield: My Lords, I am sure that the noble Lord will recognise that precipitate action must not be taken on this matter and that the report of the review will come as soon as it is right that it should do so.

Schools: Provisions for Dyslexic Children
3.22 p.m.
Lord Merlyn-Rees Lord Merlyn-Rees asked Her Majesty's Government:
Whether they will provide six-monthly reports from each local authority in England and Wales for their primary and secondary schools (annotated separately), and also directly from grant-maintained schools, giving details by league tables of special facilities provided for pupils designated as dyslexic.
The Minister of State, Department for Education (Baroness Blatch): My Lords, I understand the concern underlying this Question but to provide six-monthly reports would serve no particular purpose. It would also be impracticable, costly and bureaucratic to do so. The Government are however taking action to improve the education of all children with special educational needs, including those with dyslexia, by means of the Education Bill currently before the House.
Lord Merlyn-Rees: My Lords, will the Minister consider the fact that we have league tables for the railways, the police, and secondary schools (the swans of the education system)? Can not we do the same for special schools? All those involved believe that the 1981 Act is not working; that there are not enough facilities and trained teachers; and that it is easy to backslide on this because public demand for results is not as great as it is in individual schools. If the reports cannot be six-monthly, can they be annual? If it is good enough for the police and the railways, it is good enough for the children in our system who have educational problems.
Baroness Blatch: My Lords, the noble Lord addresses an important point. I look to him to support us on this side of the House, because we do have league tables for young children. We need to know every year what their reading and writing levels are and what is their competence in numeracy. The identification of those difficulties in young people, and the addressing of their weaknesses and building upon their strengths, form an important part of the reforms that we put on the statute book. The 1981 Act, which the noble Lord mentioned, is not just an important piece of legislation; we are building on that legislation in the coming Bill, and the noble Lord will have an opportunity to discuss the subject then.
Lord Molloy: My Lords, is the Minister aware that in almost every town and city people give their services voluntarily to look after dyslexic children? They

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would welcome the implementation of the recommendation made by my noble friend Lord Merlyn-Rees. I should have though that the Government would acknowledge that those people—there are thousands of them—who do that work for nothing should receive some attention so that views about the problems of dyslexic children in one town or city could be compared with those in others. Surely those volunteers should have some support, even from this Government.
Baroness Blatch: My Lords, the last thing that we want is an increase in bureaucracy. What we do want is early identification of learning difficulties, including dyslexia. We want to address those needs properly and to ensure that children learn to overcome those difficulties or to live with them, as some dyslexic people have to do. All the measures we have introduced, not just in the 1981 Act, recognise and record progress for all children from whatever ability levels they start. All the things that both noble Lords want are in place. We now want to make them work.
Lord Judd: My Lords, but does the Minister agree that this is a good illustration of the limited value of league tables as at present presented? Is not far fuller social information required? Will the Minister tell us how many children were statemented as dyslexic in 1991, and what research has been carried out for the DFE on dyslexia to define it more clearly?
Baroness Blatch: My Lords, first, I disagree with the noble Lord's first statement. Unless a child is assessed, it is not possible to identify weaknesses and strengths and then to influence programmes for them. We are actively involved, and have been for many years, in research work for dyslexic young people. We are at the moment working with the Harris CTC on an exciting dyslexia project which involves the expenditure of £250,000 over three years. We are also working with the Hereford and Worcester British Dyslexia Association, together with the University of Birmingham, to research early learning. We are doing what we can to improve early identification.
Lord Monkswell: My Lords, is the Minister aware that one of the best incentives to develop good practice is to make available as widely as possible information on what is going on in the education system with particular reference to dyslexia? May I point out—
Noble Lords: No!
Lord Monkswell: My Lords, is the Minister aware that over the past few years Manchester has developed a system of support service by specialist teachers for children in our mainstream schools suffering from dyslexia, which appears to be beneficial to the children involved? I am sure that we would welcome the national collation of statistics on the subject so that best practice can be identified and spread more widely.
Baroness Blatch: My Lords, I agree with the noble Lord. That is what we want to do. There has been an information revolution. We are finding out how our children are learning, and whether the system and the
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teaching are effective. But the noble Lord and his colleagues—in a party political sense—have opposed that information being made public. We want to see the information made public. We want to see young people with learning difficulties having their needs addressed by the schools, not by increasing bureaucracy but by good teaching and the early identification of young people with learning difficulties.
Lord Merlyn-Rees: My Lords, I merely say to the Minister that I am glad that research is taking place at the university; but has her department addressed its mind to last July's report of the Audit Commission and the inspectorate in which they said that a system of assessment and statementing was failing badly? They uncovered a lack of clarity about who should be given a statement. Assessments were generally uninformative. Statements were vaguely worded and took a long time to prepare. One does not need research at universities into that; one needs to get the local authorities and schools to do the job properly. It is up to the department to see that that is done. There should be a league table.
Baroness Blatch: My Lords, I think that we shall be in for a happy time when we introduce the Education Bill into your Lordships' House. I look to the noble Lord, because these matters are important. A substantial part of the Bill which will start its life in the House on Tuesday is devoted to the problems that the noble Lord has just enunciated. The hope is—I believe that there is support across the House—that we will put that Bill onto the statute book as soon as possible, because the system has many faults and we want to see it work well.
Lord Campbell of Alloway: My Lords, will my noble friend confirm that the report to which reference was made was taken into full account in the preparation of Part III of the Education Bill, which has received support and a measure of acclaim from associations concerned with dyslexia?
Baroness Blatch: My Lords, my noble friend was right in saying that I was referring to Part III of the Bill, which deals entirely with the points made by the noble Lord, Lord Merlyn-Rees. I thank my noble friend who has been instrumental in pressurising us during the months and years to ensure that that is brought about.

Business
3.30 p.m.
Lord Hesketh: 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 p.m. for about one hour and that during this adjournment the Commons amendments to the Judicial Pensions and Retirement Bill will be considered and a Motion to approve the Child Support Appeals (Jurisdiction of Courts) Order 1993 will be taken.

Trade Union Reform and Employment Rights Bill
3.31 p.m.
The Parliamentary Under-Secretary of State, Department of Employment (Viscount Ullswater): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Viscount Ullswater)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 13 [Right not to be excluded or expelled]:
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 43:
Page 24, line 14, leave out ("a union") and insert ("an independent trade union").
The noble Lord said: Clause 13 has a wider significance than is sometimes appreciated. It is sometimes thought that the clause is concerned only with the agreements between the trade unions affiliated to the Trades Union Congress and the arrangements between them, through the TUC, under what are sometimes called the Bridlington principles, to arrange for a system otherwise than anarchic of the frontiers and patterns of trade unionism in Britain.
Although the clause has an impact on those arrangements it is much more fundamental. It redesigns and regulates for the first time in this country—and it would be for the first time in most European countries—the reasons why and the manner in which trade unions are allowed to admit, exclude and expel members. It is true that in many ways some of the principles are obvious; for instance, allowing a trade union to have rules which relate to occupation, trade and so forth. However, there can be no doubt that the clause is an infringement—a further infringement, as it happens—of various international instruments which we have long since ratified and accepted. I refer, for example, to the European Social Charter of 1961, and its rights to organise, and to the International Labour Organisation Conventions Nos. 87 and 98. Convention No. 87 provides that:
"Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing".
It continues:
"Workers' and employers' organisations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organise their administration",
and, finally:
"The public authorities shall refrain from any interference which would restrict right or impede the lawful exercise thereof".
We were one of the primary ratifiers of that convention. I take it that the Government do not intend to denounce the convention on the freedom of association, as they have many other ILO conventions. I say immediately that the ILO and everyone
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else interprets such conventions in a sensible way. However, there is no doubt that a code of law such as that in Clause 13 goes beyond what is acceptable.
Oddly enough, the Government are now scoring a first because their approach to the problem is also different from that of the common law. It is rare to find these principles conjoined against what the Government wish to do. The common law principle was put with usual clarity by Lord Diplock in a case in 1983. He said:
"My Lords, freedom of association can only be mutual; there can be no right of an individual to associate with other individuals who are not willing to associate with him".
He made it clear that there may be some circumstances in which it is necessary to look at the small print but as a principle that stands against what the Government are trying to do.
The threads will be worked out as we go through the clause, but, finally, it contradicts the concept which is common in all international instruments. If one must cite such an instrument it would be the 1949 ILO Convention, No. 98, which outlaws interference by workers' organisations, employers' organisations and employers in workers' organisations. Clause 13 of the Bill runs counter to that philosophy.
Members of the Committee will see on page 24 of the Bill what is permitted, and we have only four headings as regards what is permitted in terms of the individual and his relationship with trade unions. Subsection (2)(c) states:
"in the case of a union whose purpose in the regulation of relations between its members and one particular employer or a number of particular employers who are associated, he is not, or is no longer, employed by that employer or one of those employers".
It is to that point in this tapestry of unfortunate proposals that the amendment is directed. It is clear that subsection (2)(c) gives a particular advantage to a union which is organised in one employer or a group of associated employers technically as different companies.
Labour relations have known of the union which is organised at the place of one employer for a long time. They are known as "house" unions or sometimes as "yellow" unions. In many cases they are not independent from the employer. Therefore, we have a Bill which for the first time since the 19th century, and possibly ever, gives an advantage to an organisation which if it is not clearly a house union is more likely to be in a majority of cases. Why is that? In tabling the amendment we say, "If you want to give this advantage—that is to say that your rules and practice of exclusion can be based on this principle—surely it must apply to independent trade unions".
We have taken the point here although it arises in other parts of the Bill. It is a test point for the Government. Do the Government really plan to put onto the statute book the provision that unions, including unions which are not independent, can have that advantage as against others who organise at different places of work? Under some systems of trade union and labour law it is regarded as a mark of a trade union that it organises outside one employer. It is interesting to note that in the European discussions it is regarded as more important than in ours. The amendment points to a major problem for the

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Government in their approach to trade unions. Do they intend to treat house unions with a major advantage? I beg to move.
Baroness Seear: I support the amendment. The more I study the proposed legislation the more it appears to me that the Government are no longer concerned solely with reforms in trade unionism but with undermining the very principle of trade unionism itself. That is a completely different matter.
In the past Members on these Benches have been in favour of certain reforms. However, we are equally determined to ensure that proper trade unionism, which can act properly on behalf of members, can continue and strengthen throughout the country. The crux of the matter is the existence of independent unions. House unions are not unions in the real sense of the term. They cannot support the proper freedom of association and when it comes to a test of power they cannot stand up adequately against employers. Therefore, we strongly support the insertion of the words "an independent trade union" into the legislation.
Lord Campbell of Alloway: Leaving aside Lord Diplock and the ILO for the moment, this amendment has some merit because Section 174(2) of the 1992 Act must be construed conjunctively—paragraphs (a), (b), (c) and (d). I am far from satisfied that the Government really intend paragraph (c) to be in that context and as restrictive as it appears to be at present. I am not satisfied that that is so and should like to hear what the Minister has to say.
In that context, the independent trade union is defined by Section 5 of the consolidation Act. I am not satisfied, with great respect, that the Government necessarily know how restrictive this is. I look forward to hearing the Minister's reply.
Baroness Turner of Camden: I rise to support the amendment moved by my noble friend. I do not wish to cover the same ground. However, the amendment correctly attempts to draw a distinction between genuinely independent unions and what used to be called—and still are in some instances—staff associations, which tend to be in the pocket of the employer. Not all staff associations are like that. Some are registered as independent unions and their position would be adequately covered by my noble friend's amendment. However, there are organisations which are in the pocket of the employer and can in no way be regarded as independent. For that reason I believe that this is a sensible and useful amendment.
Viscount Ullswater: I begin this afternoon by making a declaration to the noble Lord, Lord Wedderburn, because this covers much of what we shall discuss this afternoon. If I make the declaration, perhaps we can put the matter on one side.
We believe that nothing in general employment law or in the Bill contravenes any ILO conventions ratified by the UK. Where ILO committees have made observations on aspects of UK law, the Government have always responded and we shall continue to respond when called upon to do so.
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As regards the amendment, whether or not a trade union is defined as "independent" is in a sense irrelevant to the essential purposes of the clause. It is concerned with giving individuals the right to join the union of their choice within certain sensible limitations.
One of those sensible limitations applies in the case of staff associations. It is obviously sensible that an association that recruits only within a particular employer should not have to accept into membership employees of another, possibly rival, employer. The noble Baroness, Lady Seear, is surely not suggesting that the NatWest Staff Association, for example, should have to accept employees of Barclays Bank into membership.
The independence or otherwise of the staff association in question is simply not relevant in this context. To be protected by the clause, the association will have to be a "trade union" in the terms of Section 1 of the 1992 Act. Its independence, as defined at Section 5 of that Act, is beside the point.
It may indeed be that an association is not truly independent—that it was set up and even funded by the employer in question and that the employees are entirely happy with this arrangement. There is no good reason why such associations should be any less protected from having to accept inappropriate applicants into membership than trade unions generally.
The amendment is illogical and potentially damaging to the legitimate interests of some unions. I hope that the noble Lord will be prepared to withdraw it.
3.45 p.m.
Lord Murray of Epping Forest: The Minister spoke about the desirability of protecting the position of those employees who are happy with the existing situation. He says that they should be left alone. Will he comment on a situation in which some employees are unhappy with the staff association of which they are members and who would wish another organisation to represent their interests? They wish to invite another external union to undertake that. Would that be permitted or would that be denied by this provision?
Viscount Ullswater: That seems to be a disarmingly simple question posed by the noble Lord. Perhaps he will quote the particular case that he has in mind.
Lord Murray of Epping Forest: The Minister spoke in general terms about classes of employees who belong to staff associations, who are happy to belong to them, who are well treated by their employer and do not wish anyone to interfere in that happy family situation.
On the other hand, I have talked to classes of employees who are disturbed by the attitude of their employer and who wish someone to come to their rescue. I should like the Minister to deal with that situation.
Viscount Ullswater: I believe that the noble Lord is referring to one particular situation. I know of no other which has been brought to my attention.
Lord Wedderburn of Charlton: I have never had a ministerial declaration advanced to me before and I do not know how to deal with it. With great respect, it was not a declaration but a plea of not guilty. I note that plea. We shall continue to argue for a rather different plea. It is like the man who when going into court was asked what charges he faced and he said, "I don't know but I am going to deny everything". That was the posture of the Minister. ILO conventions stand where they stand. If the noble Viscount wishes to take them in his hand and argue them with me, I shall be happy to do so.
There is a point of great importance in this respect if one takes staff associations, as my noble friend Lord Murray has done. I do not know whether the Minister wishes to remain on the record as suggesting that the NatWest Staff Association is or is not independent. I am not sure which view he was taking of that.
Where house unions operate in the enterprise of a particular employer, the awkward member—and this legislation is said to be all about the chap who wants to make a different choice and to argue for different policies—finds that he has no protection. Indeed, the clause says that the way to get rid of him from membership of the union is for the employer to dismiss him from that employment.
The theme of the clause is spelt out clearly. Where a union is in the pocket of the employer, as the noble Baroness, Lady Seear, said, members are protected and the member who is awkward is removed immediately from employment and union membership. I thought that the Government had been fighting for 10 years to get rid of that kind of thing. It is a curious example of union security put on the statute book for the house or non-independent union. I hope that the Minister will look again at this matter before Report stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Turner of Camden Baroness Turner of Camden moved Amendment No. 44:
Page 24, line 19, after ("employers") insert:
("() where the union does not represent employees at his place of work, exclusive negotiating rights on their behalf being held by another union with the employer,").
The noble Baroness said: This is one of the most important debates that we shall have on this legislation. As I understand it, the aim of Clause 13 is to take away the right of the trade union movement to regulate itself as it has done effectively for many years.
The Government's argument is that they seek to give individuals the right to join any union of their choice. On the face of it, that sounds seductive. However, we must look at the main reason for unions in the first place. As I said on Second Reading, it is becoming necessary to argue the case for unions despite the fact that they have been with us for more than 200 years. There is an international acceptance, through organisations like the ILO and the EC where they are regarded as social partners, for them to be
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part of the social environment and necessary for working people. Sometimes I think that the Government, if they could get away with it in the modern world, would like to go back to the thinking of 1799 and the first combination Act. Ever since they first appeared, unions have had to contend with hostile legislation instigated by some but not all employers, supported by hostile governments.
It cannot be too often stated that the main reason for unions is to enable work people to combine to protect their interests at work. Unions are not friendly societies although many offer services akin to friendly societies. In recent years unions have developed individual services such as legal aid services, discount purchasing services, discount holidays and so on. However, their main purpose remains, as it has always been, that of collective bargaining and representing people at work. Over the years the Trades Union Congress has developed its own procedures for resolving disputes between unions. These are called the Bridlington principles—we have referred to them before in discussion on this Bill—because the basis of them was decided at a congress held in Bridlington in 1939.
As I explained on Second Reading, the general council has a disputes committee consisting of three people: two sidespersons, who are senior officials drawn from a panel, with a member of the general council in the chair. Disputes go to an oral hearing following the submission of documentation from each of the parties. It is an effective way of resolving disputes between unions about membership. I am myself a member of the panel. It is our aim to take the kind of decisions that will strengthen collective bargaining in the establishment concerned because we know, even if the Government do not, that that is the best way ultimately to protect individual as well as collective rights.
The union in a strong bargaining position is much better able to look after the individual with a problem than a union that is not in such a position or a union that has no bargaining rights at all. The question we always ask is: which union is recognised and bargains on behalf of the employees collectively in a dispute between two unions or, if neither is in such a position, which has the best chance of so doing? Clearly, a development of which account must be taken is the growth—this has occurred largely under the influence of Japanese companies and investors—of single union deals. There is no doubt at all that the proposition contained in this clause would, if enacted, undermine single union deals. It is easy to see how that could happen.
Let us take the case of a company where there is a salary deal which some people—they form perhaps only a small minority—do not like. We all sometimes have to accept minority views that we do not like. However, these people approach another union. With the Bridlington TUC principles still in place, the other union would refuse to accept them on the very legitimate ground that another union held bargaining rights and there would be nothing the second union could do for them. With Clause 13 in operation, the second union could not take that line. It would have

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to accept those people. Once in membership, if that small group became active in their new union they could start agitating for their new union to start recruiting, pressing for bargaining rights in competition with the union already there and holding the agreement. That would put the employer in an impossible position. Indeed, Nissan envisaged that position. I hold in my hand a letter from the Nissan Motor Manufacturing Company UK Ltd. It is signed by the director of personnel and information systems. It states:
"My view is that in allowing each individual to join the union of his choice, the Government is in effect potentially causing problems for single union deals. This is strange when the White Paper was enthusiastic about inward investment and the resulting single union deals. The Bill provides for people to join a union of their choice but does not require the company to recognise that union. This could mean that a non-recognised union could successfully recruit members in a single union company and then claim recognition. The employer would be most likely to refuse such a claim but could then end up in a difficult situation in which its employees were members of a non-recognised union. Should the membership grow and should it refuse recognition, the company would find itself in a very difficult position. If it does recognise the new union, then the single union position disappears".
Yesterday I had the pleasure of entertaining in this building two representatives of the staff of the Japanese Embassy in London. I entertained a First Secretary who was accompanied by his adviser on labour relations. Both were concerned about the Bill. Their views were similar to those advanced in the Nissan letter.
Clearly, the clause threatens single union agreements. I fear, however, that the Government basically care little about that. I cannot help feeling that they would prefer that unions did not exist at all as they have made it clear that they are not in favour of collective bargaining anyway. They are chary of saying so outright because they have some international obligations. The Government are a signatory to two important ILO conventions—87 and 98—governing freedom of association and the right to organise and bargain collectively.
I do not believe that the Government's philosophy in that regard has much public support. Recent polls indicate that trade unions are not unpopular, as the Government would have us believe. As my noble friend Lord Murray of Epping Forest said on Second Reading, the amazing thing is not that trade union membership has declined as it was bound to do at times of high unemployment and when large chunks of manufacturing industry have virtually disappeared, but rather that in this situation so many people have stuck with their unions. They have done so in a hostile climate when every encouragement has been given to employers to end collective agreements and when individual employees' rights relative to employers have been severely diminished.
The idea of my amendment is to preserve at least some basic order in the industrial scene. I am sure many employers would give that wholehearted support as they do not wish to see industrial anarchy either. If carried, the amendment would mean that single union situations would be protected as it would
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be possible for a union to refuse membership to people covered by such an agreement who wanted to join another union. I beg to move.
Lord Campbell of Alloway: I wholly accept that collective bargaining is the only appropriate way in which industrial relations should be conducted in our highly industrialised society. I listened with great care. I agree that this matter constitutes an important point. We are concerned with what the noble Baroness described as the basic order of industrial relations in their modern setting aimed at protecting the sanctity of the single union agreement. That is supported notably by large Japanese companies which have invested here.
This is an interesting matter because it was not so long ago that the trade union movement was seriously opposed to single union agreements—the Ford fiasco being but one example. I make no criticism of that; I merely state the position as I see it. It is not for me to criticise. Today the trade union movement seems to be moving towards support for the single union agreement. What worries me is whether this amendment could in effect signal the reintroduction of the closed shop by the back door. If that were to be its effect, I, assuredly, would be bound to oppose it.
Baroness Seear: The right to join the union of one's choice is, of course, a phrase that at first sight is attractive to any libertarian. However, one has to consider the balance of advantage between what is proposed in the amendment and the right to join a union of one's choice. I remember, as some other Members of the Committee will, the absolute chaos that existed 30 years ago when employers were sometimes attempting to negotiate with no fewer than nine or 10 different unions.
The Government claim that their legislation led to improved industrial relations in this country. Some of us consider that increased unemployment has contributed to that improvement. Certainly one factor which has contributed to improved industrial relations is the single union agreement. I am persuaded that that is the direction in which industrial relations should go, from the point of view of both economic advantage and orderly industrial relations.
There is no doubt that when Nissan first came to this country it was determined to have a single union with which to negotiate. I recall being told that at the time and thinking that it was fantasy and that it would never be achieved. However, Nissan has achieved it and the economic advantages and the benefits in terms of industrial peace are plain for all to see.
Therefore, for my part I would forgo any possible advantages in terms of the ability to join the union of one's choice and give preference to supporting and increasing the development of the single union agreement in the interests of companies, the economy and union members. I support the amendment.
4 p.m.
Lord Murray of Epping Forest: Clearly the Government's ideal—which is understandable—is a union-free society. They see unions as impeding the free flow of market forces and interfering with

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employers' ability to do as they will with their assets and property. That is a perfectly understandable point of view, although I do not agree with it. It is a condition which leaves employees totally at the mercy of employers. If employers were philanthropic and benevolent people that might even be acceptable. Some employers agree with the Government; many do not.
Many employers share the view of the noble Lord, Lord Campbell of Alloway, that they are stuck with trade unions and that workers are in the habit of banding together for their own protection as a form of mutual insurance. Since unions will exist and the employer is stuck with them he wants the most reasonable structure of trade unionism possible; hence the preference for single union organisations. At the TUC we discussed that issue with Nissan in the mid-1970s. It did not emerge as a result of the policies of Conservative governments, it developed quietly and steadily from the mid-1970s onwards.
I welcome the support of the noble Lord, Lord Campbell of Alloway, for the concept of collective bargaining of an orderly kind. Clearly, one union is better than none. On the other hand, I believe that two unions are four times as much trouble as one, three unions nine times as much trouble, and so on, exponentially. The Bill is a recipe for precisely that.
I take issue with the noble Lord, Lord Campbell of Alloway, on his reference to the closed shop. This proposal has nothing to do with the closed shop. The AEU has a single union agreement with Nissan. It certainly does not have a closed shop arrangement with Nissan. There is no question of forcing people into membership of the union. Therefore, Members of the Committee should put the issue of the closed shop right out of their minds.
Only those noble Lords opposite who share the view of the Front Bench that a union-free society is not only desirable but achievable should support the Bill as written. Those who take the view, which my noble friend Lady Turner and the noble Baroness, Lady Seear, put forward so persuasively, that we should do all that we can to develop and sustain single union organisations must strongly support the amendment.
Finally, in case the Minister is tempted once again to remind us of what my friend Gavin Laird, general secretary of the AEU, has said, I remind him that it was Gavin Laird who came knocking on the door of the TUC when the Ford development at Dundee was threatened, urging the TUC to use its regulatory powers to stop anybody else interfering. Gavin Laird is as great a supporter of the single union organisation as I or any of my colleagues on these Benches. I am sure that Gavin Laird would not vote for this particular aspect of the Bill.
Lord Stoddart of Swindon: I find the discussion fascinating. It is incredible that a Conservative Government should come forward with a clause of this sort, which is quite clearly opposed to the single union agreement, as was pointed out by my noble friends.
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I worked in industry before entering the other place. I negotiated in industry at every level: local, regional and national. I therefore met many employers. I can assure the Committee that it was their view that if only they could have a single union agreement things would be much better: they could negotiate much more efficiently; they would be able to pay us so much more money because they would not have to spend money talking to this union and that union for hours and hours, and we could all have better conditions. I can assure the Committee that that is absolutely right.
Baroness Seear: Is the noble Lord agreeing that the employers are right?
Lord Stoddart of Swindon: I am merely setting out my experience in industry, and putting the employers' point of view.
I represented Swindon in another place. In Swindon we had a branch of British Leyland, which was then run by Sir Donald Stokes, now the noble Lord, Lord Stokes. The motor industry was in a very bad way. I went to see him on a number of occasions. He said: "What can I do about the strikes? I have to negotiate with 31 trade unions". He said that if he could only have a single union agreement the company could solve all its problems. The government of the day agreed with him, although I am not sure which government it was because I cannot remember the date. However, the Conservative Party certainly agreed with the noble Lord, Lord Stokes, that single union agreements would be a good thing, in the same way as they believed that amalgamations of trade unions would be a good thing. Yet here we have a Bill which contains a clause saying the reverse.
The Government cannot have it both ways. I urge them to listen to what my noble friends and the noble Baroness, Lady Seear, have to say, because they have great experience in these matters. My noble friend Lord Murray of Epping Forest is a former general secretary of the TUC. My noble friends are practitioners in this field. They know the trade union movement in its wider sense. I know it in its narrower sense, having been at the coal face. Here we have a vast range of experience and I hope that the noble Viscount will listen to what my noble friends have to say and agree to the amendment, or at least go back and consider it further.
Lord Boyd-Carpenter: I was intrigued to hear the noble Lord, Lord Stoddart, give the employer's point of view, as he described it. I can only say that as a former chairman of a number of industrial companies I do not recognise his description, but no doubt the noble Lord's experience has differed from mine.
However, I agree that the issue is an important one. I do not dispute that. I do not dispute the desirability of the Committee debating it carefully and scrupulously. But there is surely great importance in the individual having the right to decide which union he will join. It may be very convenient—it often is —for the employer to deal with only one union. I do not dispute that for one moment. It is also very convenient from that union's point of view. But does

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that justify denying to the individual the right to join the union of his choice? He may have good reasons for his choice; he may have bad reasons. But surely those are his reasons? Sometimes the reasons may be good. Let us take one example. The most prominent union in an industry may be politically very active, and the individual happens to have other political views from those of the union, and prefers therefore not to acquire membership of a union which is pursuing a violent political line with which he does not agree.
We are concerned with an important aspect of political liberty. For that reason I was particularly surprised to hear the noble Baroness, Lady Seear, advocating denying to individuals the right to choose the union of their choice. That is certainly a new aspect of liberal policy—spelt of course with a small "1".
4.15 p.m.
Lord McCarthy: Before the noble Lord sits down, perhaps I may ask him how far he extends the principle of choice of entry. For example, does he consider that every individual would have the right to join every club of his choice? It might be the Carlton Club or the Reform Club. Does he say that every individual ought to be entitled to join every tennis club of his choice? Alternatively, does he say that sometimes those organisations have a right to say who shall belong?
Lord Boyd-Carpenter: The noble Lord fascinatingly widens the scope of the debate. We are not concerned with joining a club. Generally the question is whether a club will accept the candidate. Many people have had experiences where clubs have not been prepared to accept them. All I say is that it is wrong for the law to intervene and deny, in the case of a trade union, the right of an individual to join the one that he wishes to join.
Lord Howie of Troon: I wish to say a word from these Benches on behalf of the employer. My noble friend Lord Stoddart put the case extremely well. I have been a member of a number of trade unions for the past 40 years, or even 50 years—I hesitate to count how long. I regard myself as a trade unionist. But I have been an employer for a substantial time. I have been a negotiator on both sides of the table so I know a good deal about that business on a fairly low level on the industrial scale.
As many noble Lords will know, I have been involved in publishing for some time. The unions with which I have had to deal were those dealing with journalists, Natsopa (or whatever it is now called). I believe that it is now called SOGAT. Its name changes from time to time. Perhaps I may say this in parenthesis. Temperamentally I am extremely interested in the notion of freedom, of people being able to choose freely. As older Members of the Committee will know, I have opposed the closed shop in this Chamber every time it has been mentioned. We can therefore lay that issue to one side; I close my parenthesis.
I have faced the possibility of our journalists being represented by the NUJ which is a highly political
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union of the kind of which the noble Lord who spoke previously would not approve—I must say that sometimes I do not approve of it myself; I hope that it does not get to hear of that—and the Institute of Journalists. Some of our members wished to be in the Institute of Journalists and some in the NUJ. I could understand arguments on both sides in favour of freedom of expression. I sympathised closely with them. However, it became clear when dealing with the employees that it was a recipe for disaster to have them in rival unions. They were not rivals in gaining things from the employer, which was me, but rivals in gaining influence in some strange way in society as a whole. That seemed to me a business in which I did not wish to be involved. Luckily I was able to leave that to the employees. The NUJ came out on top and the IOJ withered on the vine as regards my organisation.
I do not like the fact that the Bill seems to have an underlying notion that people should not be in unions. I do not believe that that is right. As my noble friend Lady Turner said, unions appeared for a purpose. The purpose was to defend the weaker in an argument between employer and employee. That is still true.
I referred to SOGAT. Luckily I never had printers in my organisation; thank God for that. But SOGAT organised the clerical employees. They were extremely useful, valuable people. For reasons which were nothing to do with me—I encouraged trade unionism in my organisation—SOGAT disappeared. My clerical employees are unrepresented by unions. There is no doubt in my mind that they are worse off as individuals in that condition because as a tyrant I deal with them harshly, whereas if they were represented by a union I would deal with them in a rational, civilised manner.
I do not like that underlying notion. I know that the Front Bench will deny that they are anti-unions. They need not deny it; no one will believe them. I believe that the amendment is wholly appropriate and right. I speak as a lifelong trade unionist and, more importantly, as an employer. The amendment should be supported.
Lord Murray of Epping Forest: Before the noble Lord sits down, I should like to ask whether he agrees with me. He spoke as an occasionally benevolent employer. Is the main appeal of a second union to employees the approach that, "We will get you more than that lot"? Its purpose would be to up the ante and thus force the first union to raise its sights even higher. The consequence for the noble Lord as an employer is very deleterious. Does he agree that that is the situation?
Lord Howie of Troon: There is absolutely no possibility of my disagreeing with my noble friend. There is no doubt that the scenario that he depicts is completely disruptive, entirely wrong and ought to be stopped.
Viscount Ullswater: I have listened very carefully to the arguments put forward by noble Lords, but I remain unconvinced of the case that they wish to press. Their case rests on a fundamental confusion of

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two very different concepts: that of union membership, which is what Clause 13 is all about; and that of union recognition with which the waters have become muddied.
I should like to take this opportunity to set the matter straight. The two are fundamentally different. Union membership is a matter for individual trade union members, and certainly not a matter on which they should be overruled by the TUC. Trade union recognition is a matter for employers. It is for them to decide, on the basis of their particular circumstances, whether or not they wish to recognise a trade union for collective bargaining purposes, and if they do, whether they will bargain with a single union or with several.
We are told that single union agreements are special. I am interested to hear that argument from Members of the Committee opposite. Those in the TUC have not always been so keen to promote single union deals as the EEPTU, which was expelled for espousing single union deals, knows to its cost, and as my noble friend Lord Campbell of Alloway said.
Lord Murray of Epping Forest: If I may intervene, the noble Viscount perhaps did not hear me say that long before the EEPTU was negotiating single union deals the TUC, in concert with Nissan, was encouraging the development of the first single union agreements in the mid-1970s.
Viscount Ullswater: Those may be the facts, but during the 1980s the facts were quite different. That is why we lost the Ford deal at Dundee. I am surprised that the noble Lord should be so brave as to make those remarks when there was an anti-single union deal motion passed at the TUC conference as recently as 1991. It referred to the alien approach to trade union organisations which several recent Japanese projects had brought with them. Why should those arrangements be so special?
Lord Howie of Troon: If I may intervene briefly, the noble Viscount is quite right to chide the TUC for its past misdeeds, but will he agree to welcome the one lost sheep? It is hard lines on the ninety and nine, but now that the TUC has reformed itself, should not the Government say what a good thing that is instead of going over past misdeeds?
Viscount Ullswater: I have to question why those arrangements should be so special. A single union agreement is nothing more than the result of an employer's decision to negotiate with one union and one union only. Of course, it may influence an individual's decision whether or not to join a particular union. But it should have no effect on the fundamental right of the individual to join the union of his or her choice.
I understand that noble Lords would be extremely concerned if single union deals, which may have been established after considerable effort and negotiation by all parties, were to be damaged by some mass defection once this provision becomes law. I emphasise again that, whatever union members do, it is entirely for the employer to decide what union, if any, he wishes to recognise.
Lord McCarthy: Is the noble Lord seriously saying that it is nothing to do with the workers, that it is just to do with the employers and that the employers could recognise any union, whether or not it was representative, whatever membership it had and no matter what the workers felt? It is a one-sided deal. He does not mean that.
Viscount Ullswater: The noble Lord is exaggerating my words. What I am saying is that it is entirely up to the employer as to whether he has a recognition agreement with a union or none. That is the choice that the employer has. I emphasise again that whatever union members do, it is entirely up to the employer to decide.
Lord Stoddart of Swindon: I wish to deal with that point. Perhaps we should look at the other side of the coin. Let us suppose that an employer has negotiated a single union agreement with, say, 1,000 employees and then 800 decide that they want to set up or join eight other trade unions. They then force the pace on recognition and come out on strike, take all kinds of industrial action and make things difficult for the employer. What will the noble Lord say to the employer then?
Viscount Ullswater: If I were an employer I would think to myself that the union that I had recognised did not represent the wishes and desires of the employees in my business. If they were so dissatisfied with the trade union and wished to move to another one, I should carefully consider what recognition agreement I had, whether I was prepared to continue with it or move to another one. But it is up to the employer to decide. I understand the importance that noble Lords attach to single union deals. I entirely agree that they are one of the valuable developments of industrial relations in the 1980s. No one wants to see a return to the inter-union disputes which did so much damage to industrial relations in this country in the 1960s and 1970s.
What I find difficult to understand is the suggestion that the TUC's Bridlington principles strengthen and support single union deals. In the first place, official TUC policy has been, at least until recently, hostile to the idea of single union agreements. That was the effect of a notorious resolution passed at the 1991 conference.
However, I assume from the remarks we have heard from Members of the Committee opposite that the resolution no longer represents TUC policy. But the history of the TUC in the 1980s has hardly been one of enthusiastic support for single union agreements.
I entirely recognise the long and devoted service given by the noble Lord, Lord Murray, to the unions and his great experience. I mentioned Gavin Laird and I have to remind the noble Lord on this occasion as well that writing in the Sunday Times on 6th September 1992, Gavin Laird said:
"In the past, the Bridlington rules have been used to force workers to join a particular union. Their replacement must have as a guiding principle the fundamental right of freedom of choice".
He went on to say:

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"Only if the unions are able to meet the demands of the membership and reflect its aspirations will the future of trade unionism be secured. Employees must have the freedom to join a union of their choice".
Those are his words, not mine. Unions cannot be exempt from people's freedom of choice. According to The Times of 9th May 1991, this is what Bill Morris said about the Bridlington rules:
"today when we are about choice and opportunity for the individual there is no choice or opportunity within them".
I believe, therefore, that there is evidence that the rules are ripe for development and that the TUC understands that. I am surprised that Members of the Committee opposite should mount such a defence today for the principles. I have reminded the Committee about what I consider to be the fiasco of the Ford company's proposed new factory at Dundee. The company wished to give a single union deal to the AEU, but it was violently opposed by the TGWU.
Lord Murray of Epping Forest: Perhaps I may intervene. Can it be the same Gavin Laird who on the one hand questioned Bridlington and on the other hand went knocking on the door of the TUC, begging it to use the Bridlington rules to exclude other unions so that a single union agreement could be maintained at Dundee? I wonder whether it can be the same man or whether there are two under different guises.
Viscount Ullswater: Perhaps, like the noble Lord, Lord Howie of Troon, he has seen the light, now that times have moved on, and perhaps he is moving with them. This has been a sorry tale.
Lord Howie of Troon: Will the noble Viscount—
Viscount Ullswater: I believe that I have given way sufficiently. I submit that the story of the Ford company, sorry as it is, lends no support to the argument that the TUC Bridlington principles are a necessary bulwark of single union agreements—quite the contrary. Nor should it come as a surprise to anyone because, as I said, the Bridlington principles are concerned with deciding which employees should join. Bridlington is not concerned with deciding which union employers should negotiate with about pay and other conditions of employees. Decisions about which union should have negotiating rights is quite rightly a matter for the employer, not for the TUC.
If an employer decides to recognise a union for collective bargaining purposes, he will naturally choose a union with which he feels he can do business, certainly. But he is hardly likely to feel that a union meets that description if it is a union whose members will leave it in droves at the first opportunity. Yet that is what seems to be what Members of the Committee fear.
The noble Baroness, Lady Turner, quoted Nissan. When it signed its famous single union deal with the then AUEW, it explained, "That was the union we felt the majority of our employees would want to join". But what if a few individual employees at Nissan who hitherto have been members of the engineering union decide that they want to join another union when this clause becomes law? They might decide that another union offers better services, or that they have a personal commitment to another union. Why should
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they be prevented from joining the union of their choice by the TUC or anyone else? I simply do not accept that the clause would undermine single union agreements. Where employers wish to negotiate or to continue with agreements of this kind they will be free to do so. Most employers recognise that. The Engineering Employers' Federation, which has considerable experience both of single union agreements and of the impact of the Bridlington rules, has reached the right conclusion. It said in response to our Green Paper proposal:
"The EEF will not mourn the demise of the Bridlington agreement. We do not believe that its passing will create major inter-union rivalries, neither do we believe that individual employees will 'chop and change' from one union to another".
The clause strikes an important blow for the freedom of choice of individual union members. It removes the restrictions that have been placed on them for decades by the TUC's Bridlington rules. The amendment would significantly erode that new freedom and for no good reason. We strongly oppose it.
4.30 p.m.
Baroness Turner of Camden: Members of the Committee will not be surprised to learn that I am in total opposition to everything that the Minister said in response to the clause. I should like to deal with some of the points that were made by, for example, the noble Lord, Lord Boyd-Carpenter. He spoke about political liberty. I do not quite understand the point that he was making. Surely he is aware that unions now have, and have had for a very long time, separate clauses relating to political funds. One can opt out of paying the political levy. Many union members do that. So I do not see where the issue of political liberty comes in.
Lord Boyd-Carpenter: Perhaps the noble Baroness will give way. I indicated that it was possible, where a union took a very strong political line one way or another, that an individual might not wish to join that union, but might prefer to join another union which took a more neutral or objective view of the matter. It is not a question of whether or not there is a political fund. It is a question of whether the individual wishes to join one union or another.
Baroness Turner of Camden: Again, I return to the issue of political views and political liberty. I made the point when I moved the amendment in the first instance. Unions basically exist for a collective bargaining function. Political activities are normally separately governed by political levy rules. I cannot accept the argument advanced by the noble Viscount. I do not believe that it is at all relevant to industrial relations and the situations we have discovered. Much of the discussion that has been forthcoming from the government side overlooks the basic reasons for the existence of trade unions. As I said earlier, unions exist in order to represent people in a work situation. They are not friendly societies.
The situation in Germany is often held up as a great example. There are only 16 German unions. In that country, if one belongs to a particular trade or industry, one either belongs to the union for that trade

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or industry or one does not belong to a union at all. Only those 16 unions are available to people. There is absolutely no choice whatever.
As to the arguments advanced that union membership and union recognition are two fundamentally different things, I have to say that that really is not so. When one attempts to organise into a trade union, one is anxious to recruit as many members as one can because union recognition and agreements on union recognition depend absolutely on the degree to which one is representative of the workforce in that employment. Therefore, it matters that one has a number of members and one can go to the employer and say: "We represent X number of people in your workforce and therefore we want to have a recognition agreement". Of course, the recognition agreement is negotiated between the union and the employer. The recognition is not simply a matter for the employer. The employer responds to the pressure from his workforce exerted through the union that it has chosen to represent it.
As to the points that have been made about the EETPU, and so on, I have to say—I believe I said so earlier—that I am a member of the TUC disputes panel. I was a member of the panel that sat on the EETPU case. It was not expelled for single union deals—not at all. It was expelled because it refused to accept the award on the basis that it should return to the T&GWU members that it had taken from that union in opposition and in default of TUC rulings and regulations. It then refused to accept the award. Everything possible was done to try to persuade the EETPU to stay within congress itself. It refused to do so, and therefore eventually it was expelled. But it was a very long saga, and the TUC does not like excluding trade unions from membership. I believe that there is no answer to the points that we made in an industrial relations context.
It is not only a question of Nissan. The CBI told the Government in response to the Green Paper:
"CBI members are keen to see the continuation of the current trend towards single union agreement and single table bargaining. Members see a risk that the introduction of the legislation at this stage in the process of industrial relations change could threaten existing arrangements that work well".
It is talking about existing single union agreements and it wanted them to continue. The Association of British Chambers of Commerce said:
"Some Chambers feel that a number of problems may arise for the employer. It could mitigate against single union company agreements and the benefits they are generally perceived to bring."
The Institute of Personnel Management gave a particularly strong warning about the dangers of the proposals in Clause 13. It said, in regard to the Bridlington rules on union membership and the proposal to sweep them away:
"Though imperfect, this arrangement contributes to stable industrial relations in most organisations".
Nobody has claimed that the Bridlington principles are perfect. The TUC does not claim that they are. From time to time the rules are revised, and there is no reason why they should not be revised again. But the proposition in Clause 13 makes it impossible for them to be revised and for them to operate at all. For those
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reasons, and because in my view the proposals threaten industrial stability and take away the right of the trade union movement to self-regulate, I intend to divide the House on the amendment.
4.37 p.m.
On Question, Whether the said amendment (No. 44) shall be agreed to?
Their Lordships divided: Contents, 83; Not-Contents, 135.

Division No.1

CONTENTS

Acton, L.

Irvine of Lairg. L.

Addington, L.

Jay of Paddington, B.

Airedale, L.

Jeger, B.

Annan, L.

Jenkins of Hillhead, L.

Archer of Sandwell, L.

Jenkins of Putney, L.

Ardwick, L.

John-Mackie, L.

Aylestone, L.

Judd, L.

Beaumont of Whitley, L.

Listowel, E.

Blackstone, B.

Longford, E.

Bonham-Carter, L.

McCarthy, L.

Bottomley, L.

McNair, L.

Brain, L.

Mallalieu, B.

Broadbridge, L.

Mayhew, L.

Bruce of Donington, L.

Merlyn-Rees, L.

Callaghan of Cardiff, L.

Mishcon, L.

Carmichael of Kelvingrove, L.

Molloy, L.

Carter, L.

Monkswell, L.

Cledwyn of Penrhos, L.

Morris of Castle Morris, L.

Clinton-Davis, L.

Mulley, L.

Cocks of Hartcliffe, L.

Murray of Epping Forest, L.

Croham, L.

Nicol, B.

David, B.

Ogmore, L.

Dean of Beswick, L.

Peston, L.

Diamond, L.

Plant of Highfield, L.

Donaldson of Kingsbridge, L.

Ponsonby of Shulbrede, L.

Donoughue, L.

Rea, L.

Dormand of Easington, L.

Redesdale, L.

Eatwell, L.

Rochester, L. [Teller.]

Ennals, L.

Sainsbury, L.

Foot, L.

Seear, B.

Gallacher, L.

Serota, B.

Gladwyn, L.

Shackleton, L.

Graham of Edmonton, L. [Teller.]

Shaughnessy, L.

Stallard, L.

Grey, E.

Stoddart of Swindon, L.

Hanworth, V.

Strabolgi, L.

Harris of Greenwich, L.

Taylor of Blackburn, L.

Hilton of Eggardon, B.

Tordoff, L.

Hirshfield, L.

Turner of Camden, B.

Holme of Cheltenham, L.

Wedderburn of Charlton, L.

Houghton of Sowerby, L.

Williams of Elvel, L.

Howie of Troon, L.

Winchilsea and Nottingham, E.

NOT-CONTENTS

Abinger, L.

Caithness, E.

Alexander of Tunis, E.

Caldecote, V.

Archer of Weston-Super-Mare, L.

Campbell of Alloway, L.

Campbell of Croy, L.

Arran, E.

Carnegy of Lour, B.

Astor, V.

Chalker of Wallasey, B.

Banbury of Southam, L.

Chilver, L.

Belhaven and Stenton, L.

Clanwilliam, E.

Beloff, L.

Clark of Kempston, L

Bessborough, E.

Cockfield, L.

Biddulph, L.

Colnbrook, L.

Blatch, B.

Cranborne, V.

Boardman, L.

Cullen of Ashbourne, L.

Borthwick, L.

Cumberlege, B.

Boyd-Carpenter, L.

Dacre of Glanton, L.

Brabazon of Tara, L.

Davidson, V.

Braine of Wheatley, L.

Denton of Wakefield, B.

Bridgeman, V.

Eccles of Moulton, B.

Brougham and Vaux, L.

Eden of Winton, L.

Butterworth, L.

Elliot of Harwood, B.

Cadman, L.

Elliott of Morpeth, L.

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Elton, L.

Park of Monmouth, B.

Ferrers, E.

Peel, E.

Finsberg, L.

Pender, L.

Fraser of Carmyllie,

Platt of Writtle, B.

Fraser of Kilmorack, L.

Pym, L.

Gainford, L.

Rankeillour, L.

Gainsborough, E.

Reay, L.

Gardner of Parkes, B.

Rennell, L.

Gisborough, L.

Renton, L.

Goschen, V.

Renwick, L.

Gray of Contin, L.

Rippon of Hexham, L.

Greenway, L.

Rodger of Earlsferry, L.

Hailsham of Saint Marylebone, L.

Romney, E.

St. Davids, V.

Hankey, L.

St. John of Bletso, L.

Harding of Petherton, L.

St. John of Fawsley, L.

Hayhoe, L.

Saltoun of Abernethy, Ly.

Henley, L.

Sanderson of Bowden, L.

Hesketh, L. [Teller.]

Sandford, L.

Holderness, L.

Sandys, L.

HolmPatrick, L.

Selborne, E.

Hooper, B.

Selkirk, E.

Hothfield, L.

Shannon, E.

Howe, E.

Skelmersdale, L.

Hylton-Foster, B.

Stewartby, L

Ingrow, L.

Strafford, E.

Lauderdale, E.

Strange, B.

Lindsey and Abingdon, E.

Strathclyde, L.

Long, V.

Strathmore and Kinghorne, E. [Teller.]

Lucas of Chilworth, L.

Mackay of Ardbrecknish, L.

Sudeley, L.

Mackay of Clashfern, L. [Lord Chancellor.]

Suffield, L.

Swansea, L.

Macleod of Borve, B.

Swinfen, L.

Mancroft, L.

Swinton, E.

Marlesford, L.

Terrington, L.

Masham of Ilton, B.

Teviot, L.

Merrivale, L.

Thomas of Gwydir, L.

Mersey, V.

Thorneycroft, L.

Mottistone, L.

Torrington, V.

Mowbray and Stourton, L.

Trumpington, B.

Munster, E.

Ullswater, V.

Murton of Lindisfarne, L.

Vaux of Harrowden, L.

Nelson, E.

Vinson, L.

Norfolk, D.

Vivian, L.

Onslow, E.

Wakeham, L. [Lord Privy Seal]

Orkney, E.

Orr-Ewing, L.

Wise, L.

Oxfuird, V.

Young, B.

Resolved in the negative and amendment disagreed to accordingly.
4.45 p.m.
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 45:
Page 24, leave out lines 20 and 21 and insert:
("(d) the reason or, if more than one reason, the principal reason for his exclusion or his expulsion is attributable to his conduct.").
The noble Lord said: In case this Bill ever reaches the statute book, we should arguably look closely at what it says and see whether the Government in fact mean it. There is a particular reason for that. As my noble friend Baroness Turner, among others, suggested to the Committee a number of times the day before yesterday, the essence of the Bill is a structure that would be happiest without trade unions or at any rate trade unions effecting friendly society functions. That may be the conscious or unconscious reason for the extreme drafting that one comes across.
The amendment is to page 24, line 20, where the proposed new Section 174(2) (d) notes that the exclusion or expulsion which is permitted by conduct
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has to be entirely attributable to conduct. We shall see later that various forms of conduct are not permitted within the state list of acceptable factors for inclusion or exclusion from a trade union. That is part of the new structure.
However, looking ahead to when we have this legislation, albeit for a very short time, the paragraph implies that the Government have now become extreme. In all conscience I believe that they ought to think again. Someone may be excluded from any body or association by reason of his or her conduct—accepting for the moment that it is not conduct within the prohibited range in subsection (4)—but there may be many different strands to that conduct. Life being what it is, there may be many thoughts in the mind (or on paper) of any body which makes a decision to exclude. It is particularly unlikely that such a body would be able to reach the standard of proof required in the witness box to say that the exclusion was,
"entirely attributable to his conduct",
which must mean a particular type of conduct. Obviously, his conduct cannot include dozens of different things. There might be a case in which someone was well known to be dishonest and also to be a practical joker. I had a student who had that failing. It is all right for students but at work it can cause a great deal of danger. There are well known cases in which practical jokers have been made liable to other workers by whose side they work. He might have other attributes.
The relevant committee, body or conference might have people who in some cases voted because of what they thought was his dishonest past. It is another question as to whether or not it has to be objectively proved every time. Some might know about his practical joking record; others could have different factors in mind. Surely it is reasonable that the most that the body has to show, under this new regime of state-controlled trade union admission and exclusion, should not go further than the amendment suggests; namely, that there is a,
"reason or, if more than one reason, the principal reason for his exclusion".
Perhaps that is what the Government meant. If so, I hope that they will reconsider the matter. I beg to move.
Lord Campbell of Alloway: I oppose the amendment. With respect to the noble Lord, it is far too clever by half. Let us look at it for a moment. It says,
"the reason or, if more than one reason, the principal reason".
Let us consider that one is sitting as an arbitrator, as a judge or as part of a committee which has to operate the provision. Those words mean "the reason"; that is, the reason that would have to be given if one was giving a reasoned award. The reason in the amendment must be attributable to a person's conduct. If it is attributable to his conduct and if it is a reasoned award, it is totally acceptable to suppose that it is exclusively attributable. One does not take into account extraneous considerations to one's reasoning. The amendment presupposes that the person making the decision simply does not know how to make it.
Lord Stoddart of Swindon: Perhaps the Minister can help me. I am sure that I must be wrong. Paragraph (d) seems to be absolute. It says that the exclusion or expulsion is entirely attributable to the person's conduct. What sort of conduct? Is it to do with his trade union membership? Is it to do with his employment or his employer? Or could he just be a drunkard?
Viscount Ullswater: Perhaps I can assist the noble Lord, Lord Stoddart. If he refers to subsection (4) he will understand what "conduct" means.
Lord Stoddart of Swindon: I shall come back to that.
Baroness Turner of Camden: Perhaps I may intervene briefly to support my noble friend. It seems to me that he is utilising words that have appeared in legislation for many years—since about 1906. The amendment would cover a number of cases where it may be felt desirable that the individual concerned should no longer continue to be associated with a union. I can think of a number of such situations. The individual may be involved in racial or sexual harassment of another union member or something of that sort. The wording would cover that kind of case. I do not understand why the noble Lord, Lord Campbell of Alloway, is opposed to it.
Viscount Ullswater: I do not believe that the instance quoted by the noble Baroness would fall foul of the clause. That would be conduct which it would be perfectly reasonable to exclude. The definition of "conduct" is contained in subsection (4), which is quite specific. Those are the grounds on which a person can be excluded.
The purpose of Clause 13 is to give individuals a greater right to join the union of their choice. Yet there are circumstances in which a union might legitimately seek the exclusion or expulsion of an individual. Those are set out in the clause as the "permitted reasons" for exclusion or expulsion.
The amendment tabled by the noble Lord seeks to dilute one of those permitted reasons. We have allowed that a union may exclude individuals when that exclusion is entirely attributable to his conduct. Under Amendment No. 45, exclusion would be permitted if it was—and I paraphrase slightly—wholly or principally attributable to his conduct.
The noble Lord made what appears to be a case for his amendment. But let us consider the circumstances in which it might be applied, and its implications. If there is more than one reason for excluding someone from a union, and the first reason is his conduct, the second will, to state the obvious, either be a reason already permitted by the clause or one that is not. If it is a permitted reason, then by virtue of that reason, the individuals may lawfully be excluded. If it is not a permitted reason—for example, if it is membership of another trade union—then, even taken in conjunction with concerns about the individual's conduct, to allow an exclusion from the union would be to allow the Bridlington principles in through the back door. The
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whole purpose of the clause is, after all, to prevent the Bridlington principles preventing individuals joining the union of their choice.
I believe that I have outlined sufficiently why I encourage Members of the Committee on this side of the Chamber to resist the amendment, and I ask the noble Lord to withdraw it.
Lord Wedderburn of Charlton: The Minister rightly refers to the clause and says that "conduct" is defined in subsection (4). If we look at that we do not find a definition of "conduct" but of which conduct is not permitted. The conduct that is not permitted is set out.
We go back to paragraph (d) on line 20 where the issue arises. There is a form of conduct on which unions are allowed to have a view with regard to exclusion or expulsion. From there we come to the curious objection to the amendment. We all know that to prove something is "entirely attributable" to a particular circumstance is extremely difficult. The Minister and the noble Lord, Lord Campbell of Alloway, objected to the phrase in the amendment,
"the reason or, if more than one reason, the principal reason for his exclusion or his expulsion".
I have known the noble Lord, Lord Campbell of Alloway, for a long time. I have never before heard him object to a point which flies in the face of legislation which already exists. One can find it in a number of places but I turn to Section 152 of the consolidation Act 1992, which reads,
"For purposes of Part V of the Employment Protection (Consolidation) Act 1978 … the dismissal of an employee shall be regarded as unfair if the reason for it (or, if more than one, the principal reason) was that the employee … had taken part … in the activities of an independent trade union",
and so forth. I did not make up the formula. The noble Lord knows perfectly well where it comes from. It comes from existing legislation. To hear the Minister and the noble Lord, Lord Campbell, one would think that the Government had to tear up all the sections which use definitions and phrases such as,
"the reason for it (or, if more than one, the principal reason) was that the employee",
and so forth.
The noble Lord will agree that those who have far more experience of tribunals than I will have frequently come across that phrase. If one is making a case on behalf of an employer or an employee who has been dismissed on one of the alleged grounds in Section 152, then one' knows where the burden of proof lies. If the section read that dismissal of an employee would be regarded as unfair if the reason for it was "entirely" one of the following, it would be rather different. People would be up in arms and would say that it was an absurd burden of proof.
First, we have established that the form of my amendment has been acceptable to the legislature for a long time. Secondly, we have not heard a word as to why the burden of proof should be heavier. As on Tuesday, the reason that the burden of proof should be on a higher plane is that the screw is being tightened; that even after this shackle, the trade unions are to be put into an even more difficult position. What the amendment means is that, whereas on paper it first looks as though the wording of

1573
paragraph (d) of Section 174(2)—"entirely attributable to his conduct"—would allow the union certain scope when faced with people whom one would not want in union membership, for a variety of reasons, and there were rules to say so, in fact it would be extremely difficult to prove and operate.
Here we have the first case. We can itemise the others as we go along. It is true that the clause is not only to do with the Bridlington agreement. It is to tie down the rules and practices of trade unions in a new system of state control that is contrary to all instruments of freedom of association. The tiny phrase "entirely attributable" could be replaced by a phrase that is acceptable to the legislature, of which I have given an example.
That proposal will not be acceptable; the Minister and the Government will not accept it because they know, regrettably, what they are about, as evidenced by the opposition to the amendment. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 46 and 47 not moved.]
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 48:
Page 24, leave out lines 40 to 45.
The noble Lord said: It is right to press the Government as regards the amendment. Unjustifiable discipline was invented by the Government in the 1988 Act and involves a series of instances, the most important of which is where a member of a trade union refuses to accept any form of majority decision to take industrial action and refuses to take any step that is contrary to his employer in his employment contract, no matter whether the union has held the necessary ballots and no matter whether the industrial action is lawful—which it might be even after the Bill.
I regret that I have to trouble noble Lords with this matter, but it has not been debated since 1988 and is of central importance. The Government stated that no matter how lawful the industrial action, the union cannot operate rules, without the sanction of compensation, which relate to a member's refusal to take part in industrial action.
The subject has been much argued in international circles. I should like to read two short passages from reports of experts of the International Labour Organisation of 1988 and 1992. I hope that the Minister will not be too dismissive of the experts who expressed those views. They number 20 and include constitutional court judges from 20 countries, professors and senior judges and practitioners in the field from around the world. They are not, as Ministers sometimes imply, a group of mad Bolshevik lawyers. They are people of the greatest and highest standing in the field, from all sides. The expert from this country is Sir John Wood, a professor of law at Sheffield. He is a gentleman of the highest standing. I hope that the Government will bear that fact in mind in any comments that they make about the opinions of the committee of experts.
In 1989 the argument was put to the committee that Section 65 was contrary to the fundamental principles of the convention on freedom of association. The report stated:
"The Committee recalls that one of the basic rights guaranteed by the Convention is the right of organisations of workers and employers to draw up their constitutions and rules free from any interference which would restrict this right or impede the lawful exercise thereof. It is clear that provisions which deprive trade unions of the capacity lawfully to give effect to their democratically determined rules are, prima facie, not in conformity with this right. Section 3 of the 1988 Act clearly has this effect, and on that basis is not in conformity with Article 3 …
"It follows that proper respect for the guarantees provided by Article 3 requires that union members should be permitted, when drawing up their constitutional rules, to determine whether or not it should be possible to discipline members who refuse to participate in lawful strikes and other industrial action or who seek to persuade fellow members to refuse to participate in such action".
The experts were particularly worried by the second matter; that the union is not allowed to take any action, subject to compensation, against a minority member who positively runs a campaign against the democratic and lawful decision of the union. The experts stated that Section 3 should be amended to take account of that view.
I appreciate that there has been further correspondence and argument between the Government and the experts. In the 1992 report they stated:
"In its previous observation the Committee concluded that those parts of Section 3 which deprive trade unions of the right to discipline their members who refuse to participate in lawful strikes and other industrial action or who seek to persuade fellow members to refuse to participate in such action, constituted an impermissible incursion upon the guarantees provided by Article 3".
It states one of the Government's arguments at paragraph (c):
"The Government … observes that unions are still able, if they wish, both to have rules which allow them to discipline members for refusing to take part in industrial action and to implement those rules—as is demonstrated by a number of instances, since the adoption of the 1988 Act".
The committee repeated its view that that was a breach of the convention, but asked the Government to give further details on cases since 1988 where disciplinary penalties could be imposed on people who refused to participate in a strike.
I should appreciate an indication of the Government's argument because it is a new argument and not one that I have come across before.
As the experts made clear, it would not alter the fundamental judgment that Section 3 of the 1988 Act, which is now to be found in the 1992 Consolidation Act, was contrary to the convention.
The following situation would arise. Someone may say to a union, "I want to join the union but I am never going to accept a call to take industrial action from any officer, committee or body, however many ballots are held; you can ballot until you are blue in the face, I am never going to join in". What is wrong with the proposition that the union is entitled to say, "Very well, do not join"?
The right of association of choice is being distorted. Where is the right for the majority, as Lord Diplock called it, which has to be respected in regard to freedom of association, as well as the right of the individual or minority? Lord Diplock stated that

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freedom of association can only be mutual. If the Government are not going to outlaw anyone who even thinks of industrial action—no doubt that will be in the next Bill—it must be right to allow a union an area of discretion in respect of admitting members that is related to the rules that concern the launching of industrial action. If the proposal goes on to the statute book in this form; namely, that in relation to Section 65 conduct, members must not be disciplined for refusing to join in a lawful action, it will be quite unique except for some codes in some parts of the world which the ILO has been trying to put in a more democratic form.
I hope that the Government will seriously consider, in their own interests, whether paragraph (b) requires amendment or amelioration. I beg to move.
Lord Campbell of Alloway: I oppose the amendment. If the specified conduct is removed, subsection (2)(d) would become ineffective. The noble Lord, Lord Wedderburn, wants a wide area of unfettered discretion so that the union would be totally free to manage its own affairs. In my book that would not be reasonable. We have had mention of Lord Diplock twice today. Perhaps we can leave him to rest for the moment. We have had more allegations about breaches of convention which we can also forget about. Other matters have been raised which seem totally extraneous, such as outlawing people who dream of industrial action.
I return briefly to the amendment. It is seeking to substitute for specified conduct which is plain, an area of discretion. It is because that conduct is specified and because conduct as regards dismissal—which is another section in another Act to which the noble Lord referred—is wholly at large, that the analogy he sought to draw between the two, to my disadvantage, was totally misconceived, and he knows it.
Baroness Turner of Camden: I am surprised that the noble Lord, Lord Campbell of Alloway, should oppose the amendment in the terms which he has used. I am surprised because I was under the impression that he was a supporter of the findings of the Donovan Commission. To my recollection, that commission clearly envisaged that a union should be free to run its own affairs. It also supported the idea of collective bargaining quite specifically and, by inference, collective action. My noble friend's amendment seeks to give a union at least a small area of choice when it comes to excluding people who are against participating in any form of collective action and who say so at the time when they are approached to join the union. It is an eminently sensible amendment. I am surprised that it should meet with opposition from that quarter.
Lord Finsberg: I have spent about 30 years in personnel management and industrial relations. I have been a paid-up member of a trade union all that time. I am sure that the Government are as aware of the value of the ILO and its experts as they are aware of
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the Wedderburn-McCarthy axis. I am sure that both are highly respected by those who understand industrial relations.
I am not a lawyer, but I believe that at the heart of this matter is the protection of the individual's right to say that he is not going to participate in a strike. Donovan was years ago and the world has moved on from Donovan—thank goodness! I believe that this amendment is trying to go back to the cosy days when it was possible to intimidate members of a union, and I am not for that. That is why I support the opposition to this amendment.
5.15 p.m.
Viscount Ullswater: I understand that this amendment is grouped with Amendment No. 51. The first of these amendments strikes at one of the fundamental provisions of the clause. It is therefore unacceptable in principle. The second amendment appears to be intended as a consequential amendment to the first one.
Members of the Committee will be familiar with the concept of unjustifiable discipline by a trade union. This Government introduced provisions in the Employment Act 1988 to prevent a union from disciplining a member for certain reasons.
The purpose of the provisions was to prevent union members from being expelled from their union, or having other disciplinary action taken against them, for following their own conscience in certain matters rather than obeying an instruction from their union with which they disagreed. A member cannot now be victimised in this way, for example, because he exercised his right to work when his union had called its members out on strike.
I am grateful for the support which I have had from my noble friend Lord Finsberg. Indeed, I respect the ILO committees such as the committee of experts. I do not believe that any remarks that I have made would lead any Member of the Committee to think differently. I understand that it has made observations on aspects of United Kingdom law. I indicated earlier that the UK Government have always responded. We continue to respond when called on to do so.
Our most recent response has been in relation to queries raised about UK compliance with the ILO Convention 87; for example, on freedom of association, which was made a few months ago. As is usual in such cases, that response was made available to the TUC and CBI. In combination with earlier responses it explains why we believe that our arrangements are in fact compatible with the requirements of that convention. I believe that for the moment that is where the matter rests.
It would surely be wrong, having given the individual union member this very important protection, for the underlying principle involved to be eroded by this clause. The clause allows for a union to exclude or expel someone on the grounds of his conduct. This is only right. We certainly would not wish to force a union to accept, for example, someone who had a history of not paying his union subscriptions. But it is important that a union cannot use this conduct exemption to refuse membership to

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an individual just because he had, for example, not followed a strike call by a union of which he used to be a member.
The provision that Amendment No. 48 seeks to remove means that such conduct while a member of one union cannot be used subsequently by another union as a reason for refusing membership. If this provision was not specifically included it would be possible for a trade union to exclude or expel a member or former member of another union for his actions as a member of the first union, even though that union would have acted unlawfully if it had disciplined the individual for that behaviour when he was a member.
It is clearly right that we should protect against this and the amendment is therefore entirely unacceptable. I urge the Committee to reject it, and Amendment No. 51 which is intended as a consequential change.
Lord Wedderburn of Charlton: I apologise to the Minister for not mentioning Amendment No. 51 which is linked to the present amendment. Perhaps I may make three points. First, I understand Members of the Committee who say that the Government are "aware"—that is the word which I believe the Minister and the noble Lord, Lord Finsberg, used—of the ILO and its experts. I am saying that the Government should give some credence to them. It is over five years since the reports of 1987 and, more particularly, 1989, and in some respects that concerning freedom of association. The Government should base itself to some degree on the conclusions of the committee of experts.
In fact in every single case the Government have made their own law more extreme, going in the opposite direction from that which has been requested by the committee of experts. That is so as regards the dismissal of strikers, Section 65 and other matters. I am sure that my noble friends will remember, if no one else does, that that is still the situation as regards the GCHQ where the Government have taken no heed at all of the central recommendations of the committee of experts. There is not one of its recommendations which the Government have taken up. If anyone gives any importance to the ILO then the burden is on the Government for not discharging it.
Secondly, no doubt we can have a different discussion about the right to work. The situation of someone who is losing his job because of dismissal by the employer and who risks expulsion from the union, is one which I very well recognise. It is one which we have struggled with over many years as have other systems of law. I have not raised that issue. I have not said in every case that I believe that the Government should give way on the matter. I would not start from where they are starting. It is like going to York, and then starting from here.
Surely there must be some cases in which the majority have rights as well as the minority. Members of the Committee opposite have spoken about the right not to take part in a strike. I understand that proposition. But I say to them that the majority also have a right not to have such people in the union, at
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any rate in some circumstances. Why do they deny the majority all rights when they put forward the rights of the minority?
I call in aid the experts of the ILO because this is exactly the sort of argument that they make. There will be some cases where industrial action is lawful and where there is no case for the minority's individual rights overcoming those of the majority. The majority members are the union. A union is not some curious anthropomorphic entity with special qualities of its own; it is the majority, or its members as a whole. Where a union has 3,000 members and one person wants to join it saying, "I am going to break all the rules on industrial action however lawful, reasonable and sensible", I say that the majority should have the right not to have that person in the union. There should be a chink of light—
Viscount Ullswater: I believe that the noble Lord is trying to give the impression that the minority (although vociferous) can somehow outweigh the wishes of the majority. Surely he is not suggesting that in a lawfully organised industrial action the will of the minority can take sway.
Lord Wedderburn of Charlton: I am assuming that a union has held all the ballots that the Minister could wish and that out of its 3,000 members 2,999 have voted yes with one voting no. What does one then do with somebody who knocks on the door and says, "I want to be a member of your organisation, but I am not going to pay any attention at all to your rules on industrial action however reasonable and lawful"? That seems a wholly extravagant proposition, but that is what the Bill means. It states, "You cannot take account of conduct when that conduct is prohibited by Section 65".
Gradually over the years we have put the cold light of analysis upon the Government's legislation and now, at long last, this Bill (together with the White Paper People, Jobs and Opportunity) marks out finally the Government's clear direction. On this point of minority/majority, it is the extremity of drafting once again which shows the Government's aim and intention in the Bill. Having said that, however, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Turner of Camden Baroness Turner of Camden moved Amendment No. 49:
Page 25, leave out lines 1 to 3 and insert:
("() In the case of a union or unions which are in membership of the Trades Union Congress, the individual claiming to be excluded or expelled in contravention of this section may in the first instance appeal to a Disputes Committee of the Trades Union Congress. In the event that he remains unsatisfied, he may appeal to an Industrial Tribunal. In the case of a union or unions not in membership of the Trades Union Congress, the individual claiming wrongful exclusion or expulsion may appeal directly to an Industrial Tribunal under section 176 of the 1992 Act.").
The noble Baroness said: This amendment argues for self-regulation. Unions are voluntary organisations. Other voluntary organisations are allowed—indeed, encouraged—to self-regulate. Financial institutions, which arguably have much greater power and more potential to damage than the unions

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nowadays, are allowed their own self-regulatory mechanisms. They are often enforced by codes of conduct rather than by a highly detailed and bureaucratic piece of legislation such as that we are discussing now.
I should make clear that I am not knocking self-regulation. I have been involved with SROs in the financial sector myself. The ones that I have encountered really do endeavour to improve standards. Their remit, however, is limited, and as can be seen from the financial scandals of recent years, they have sometimes been powerless to protect consumers in affairs such as that of the collapse of the Bank of Credit and Commerce International and the Maxwell pension scandal. We now have the desperate problems facing the members of Lloyd's, some of whom apparently stand to lose everything.
Unions do not have that kind of power, yet it is their organisations, built up over many years by devoted voluntary workers often for very little monetary award, which are to be tightly encased in massive and, in some cases, not very comprehensible laws. I am sure that I am not the only Member of your Lordships' House who has found clauses in the Bill very difficult to follow.
The courts in the first instance—the industrial tribunals —are being called upon to regulate disputes between unions. At a time when there are already long delays with industrial tribunals, which can be even longer if there is an appeal to the employment arbitration tribunal, under this Bill the Government are finding yet more work for the industrial tribunals while no additional resources seem to be provided. I know that the Minister will probably say that the Bill proposes some form of solution by allowing the chairman to sit alone in certain cases, but I do not find that an acceptable solution.
My amendment seeks to provide the Trades Union Congress with a role as a sort of industrial SRO. The disputes panel could be broadened or changed. In the financial sector, for example, it is common for the SRO to include persons who are representative of public or consumer interests, as well as practitioners. A number of variants are possible. What I find unacceptable is the notion that unions cannot be allowed to participate in self-regulation, so along comes the nanny state—the Government used to be very fond of referring to the nanny state—to perform that regulation and 8.5 million ordinary trade unionists, through their elected organisations, are not to be allowed to self-regulate.
That is happening after the Government have boasted about the so-called "reforms" which have given the unions back to their members. If they have been so successful at giving the unions back to their members, why do the Government jib at allowing the elected authorities within the trade union movement to have some form of self-regulatory role? That is the basis of my amendment and I commend it to the Committee. I beg to move.
Lord Boyd-Carpenter: I hope that the Committee will not accept the amendment. The appeal provisions in the Bill as it stands are perfectly straightforward.
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The appeal lies to an industrial tribunal. I take the noble Baroness's point that industrial tribunals are quite heavily worked at the moment, although I believe that there is some reason to anticipate some measure of relief. However, they are not going to be given relief if the amendment is accepted because, as I understand the amendment, when the individual has appealed to the Trades Union Congress on the grounds that he is dissatisfied (as he may well be) with its decision, he goes to the industrial tribunal as the second stage of the appeals procedure.
Therefore, it is somewhat misleading to suggest that one of the advantages of the amendment, if adopted, will be to give relief to the industrial tribunals. I do not think that it would. The appeal provision in the Bill as it stands is clear. Anybody can understand it and will know what their rights are. I hope that we shall leave it like that.
Lord Campbell of Alloway: The argument for self-regulation is acceptable in many aspects but not, surely, so as to affect Clause 13. Clause 13 is a fundamental clause which provides for the freedom of members to belong to a union of their choice. It is a right which has never as yet been recognised by the trade union movement. We have to face the fact that this is a political division. What we are debating here and now is a manifesto commitment. It is a matter which, as we debate here and now, the trade union movement has never accepted. In principle, I accept the manifesto commitment and so, indeed, do the many distinguished trade unionists to whom I referred on the Second Reading at col. 484. of the Official Report. Reference has already been made to Mr. Gavin Laird, who was referred to on that occasion.
Mr. Laird's concept was that the Bridlington rules were no longer appropriate. Indeed, Bridlington is designed to ensure that the unions can maintain the stand that they have always taken. It is the antithesis in principle of Clause 13. Let us face it. The object of Clause 13 is to ensure that Bridlington can no longer operate to compel an individual to belong to a trade union which the TUC considers to be appropriate albeit that up to now that system has operated solely in the context of poaching considerations.
We now have another situation, one to which in particular the noble Baroness, Lady Seear, referred. The single union agreement, and the question of the effect of Clause 13 on single union agreements arose on Second Reading, and it has arisen again today. I take the view, as my noble friend the Minister has said, that it is confusing to deal with Clause 13 as affecting single union agreements, because Bridlington, as such, is concerned only with recognition.
Irrespective of whether Clause 13 can or does affect single union agreements, the amendment, on either showing, could well affect and challenge the fundamental principle embodied in our manifesto commitment: that members are free to belong to the union of their choice. In view of the stark division of principle, it is hardly appropriate that the onus should be put on a dissatisfied member to challenge the decision of the TUC disputes committee. We all know that the Bridlington procedure has not worked too well in the past in the resolution of inter-union

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disputes as to membership, and looking at the matter straight up, there is little reason to suppose that it would work much better in the future, either in the context of poaching or in the context, if it be applicable, of single union agreements.
My own experience in the courts in this context is limited, but it started with Stratford and Lindley. It is of course selective, and may not be truly representative. But the question is merely whether it is appropriate that the complaint should be resolved by an independent tribunal that is seen to be independent, which is the basis of the Government's proposal, or whether the TUC should have a first bite at the cherry—an opportunity to seek to resolve the complaint before its own domestic tribunal being, in a sense, judge and jury in a cause in which it has an interest.
With great respect to those who think otherwise, I cannot think that my noble friend the Minister could conceivably accept the amendment.
5.30 p.m.
Lord Finsberg: My noble friend Lord Boyd-Carpenter made the point, following the noble Baroness, Lady Turner, that the acceptance of the amendment would not speed up justice. I can imagine that if the matter had to go first to a trade union disputes committee, endless time could pass. I say that from personal experience. At the last moment the union officer cannot be there, and one loses another month. First, I believe, justice would be delayed.
Secondly, governments must take note of history. It was not so long ago that trade unions were vehemently defending the rights of unions to refuse membership to a man, which meant that he could not obtain a job. For example, with the TGWU, if one did not meet with the approval of a certain West Midlands regional organiser, whose name I think is not unknown to Members of the Committee opposite, one could not be employed as a driver. Those circumstances must not be allowed to return. The amendment could open the door to that happening. The Government are right to resist it.
Viscount Ullswater: This clause is about freedom, the freedom of the individual to join the trade union that he or she wishes to join free from "rulings" from the TUC that take no account of the wishes of individual trade union members.
We recognise of course that that right cannot be unfettered. There are many legitimate reasons why a union may wish to deny someone membership—because of their occupation or geographical location, for example—and the clause of course, as we have seen, allows for those exceptions.
But when that exclusion or expulsion is on the grounds of a so-called "Bridlington" ruling by the TUC which simply protects what amounts to a cartel arrangement, denies the opportunity for free and open competition between trade unions, and denies individual freedom of choice, then the exclusion or expulsion will be unlawful under this clause. Who at present makes the kind of rulings which this clause seeks to prevent? Who has often sought to enforce the
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Bridlington principles against the wishes of the ordinary, individual union member? It is the TUC disputes committee, the same committee that was unable to resolve the inter-union dispute at Dundee in 1987. Yet what does the amendment do? It proposes that the first line of complaint for individuals who believe that they have been refused union membership unlawfully in the terms of this clause should be the very same committee that for so many years, as my noble friend Lord Finsberg said, has sought to uphold the vested interests of trade unions, and in doing so often denied the individual freedom of choice in a way that this clause will in future prevent. Poachers may occasionally turn gamekeeper, but I am sure that the Committee will forgive me if I express my doubts in this particular instance.
I believe, as my noble friends Lord Campbell of Alloway and Lord Boyd-Carpenter have said, that the Bill provides union members with new rights and, as is customary, gives a cheap system of remedies via the tribunal system. There are no good grounds for putting an initial obligatory stage into the complaints procedure in this area. There are no good grounds for giving the TUC such a role. If unions obey the law set out in the clause, as of course they should, there will be no additional burdens on industrial tribunals. Therefore I urge the Committee to oppose the amendment, and I ask the noble Baroness to withdraw it.
Baroness Turner of Camden: I repeat that the amendment is about self-regulation for the trade union movement. We are not the only area of life in which there has been some degree of self-regulation in the past and there still is self-regulation. I was surprised by the comments of the noble Lord, Lord Campbell of Alloway, because he will be well aware that the domestic tribunal applies in his own profession. I happen to be a lay member of the General Council of the Bar and a member of the disciplinary committee. I know well that self-regulation applies there.
I fail to see why self-regulation cannot be applied to the trade union movement. It is not true to say that the disputes committee's rulings have never been good. In fact, I cannot remember one occasion when there has been an effective challenge in the courts to a disputes committee award. There have been a number of attempts to challenge decisions, but the courts have always upheld the TUC disputes committee award when it came down to it.
I know Gavin Laird. He is very much his own person. I cannot think that even he would say that he was speaking for the trade union movement as a whole. In any event, as my noble friend Lord Murray of Epping Forest has pointed out, he has not been averse to attempting to use the TUC Bridlington procedures when he thought that would be to his union's advantage, and he is not alone in adopting that posture.
If dissatisfied, under the TUC proposals that I have put before the Committee the individual could of course proceed to an industrial tribunal. The comments of the noble Lord, Lord Boyd-Carpenter, seemed to be based upon the assumption that the

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individual was always likely to be turned down by the TUC. The idea of putting down the amendment was to provide a self-regulatory form of sifting mechanism. I do not accept what was said by other noble Lords who attempted, it seems to me, to confuse the argument somewhat by references to past practices when the closed shop was in operation. Those days have long since gone and we are addressing the situation as we see it today.
I realise that there is no point in pressing the amendment at this time. However, I was anxious to put on the record the statement that the trade union movement has a right to be considered in the same light as other voluntary organisations and has a right to have self regulation as have other organisations. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 50:
Page 26, line 36, at end insert ("unless the event is a failure to pay subscriptions due from the individual as a member to the trade union and the lapse or termination of membership is thereby automatic under the rules upon the failure to pay.").
The noble Lord said: The amendment is simple and scarcely controversial but it is important. On page 26 of the Bill we find that for the purposes of the new sections certain notional expulsions or refusals to admit are set out. That approach is sensible. The amendment relates to subsection (2)(b) which brings within the range of expulsion:
"an individual who under the rules of a trade union ceases to be a member of the union on the happening of an event specified in the rules".
That is consolidated within the area of expulsion. We are not discussing questions of discipline; we are dealing with a case where an event occurs which, according to the rules, terminates membership.
Everyone knows that in trade unions, as in any other association, the most important event which automatically terminates membership is the non-payment of contributions for whatever period is set out in the rules. Usually trade union rules specify a period after which non-paying members cannot claim benefit and a further period after which membership ceases. That is the most common form of cessation of union membership. I assume that there is no evidential problem about payment or non-payment. Many studies have examined the situation, especially in regard to the construction industry where people move from one site to another and do not keep up their contributions. As a matter of administration it is important.
The amendment accepts that any event, other than non-payment, which is specified in the rules shall have the effect of termination of membership. It would be open to any organisation to adopt rules which did not make termination automatic. With one exception I do not see what the Government achieve. The exception is that a parallel provision has been on the statute book since 1980. The 1980 Act contains provisions about trade union membership in the area of employment, or where workers were seeking
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employment covered by union membership agreements. Whatever merits the provision may have had, the discussion was special. I looked again at the debates in this House and in the other place and they relate to the whole issue of union membership agreements or closed shop. We are not now concerned with that issue; we are making a general rule for all trade unions in any situation.
In that context, merely to take the rule from a previous statute is not the best idea from anyone's point of view. Lapsing by reason of non-payment of subscription should not rank as an expulsion by the union. If I said to any trade union member, or to a member of any club, "If you don't pay your subscription for six months you will no longer be a member", he or she would say, "Yes, I see that". I would then say, "But the Government say that that is an expulsion". I do not believe that anyone would treat that as an expulsion either in language or in understanding. I hope that the Minister will give the matter a little consideration, which may bring greater clarity into administration. I beg to move.
5.45 p.m.
Lord Finsberg: Before the noble Lord sits down, surely what he is stating in the amendment is inaccurate. The penultimate line reads:
"termination of membership is thereby automatic".
Does that mean that the rules of the trade union would not have any right of appeal as regards a member whose subscription may be unpaid? To my non-legal mind that provision makes the situation 100 per cent. black with the union rule giving the member no right of appeal.
Lord Wedderburn of Charlton: I should be happy to look at the amendment again. I had not seen it in that light. I understand the amendment to add to the end of the clause the provision that an event which terminates membership will count as an expulsion unless the event is the failure to pay subscriptions. The lapse which stems from a failure to pay is thereby automatic. If a union had an automatic forfeiture clause that would then operate but the case with which we are dealing would not count as an expulsion because the union had not expelled anyone. We are defining the word "expulsion" in subsection (2) (b).
Lord Finsberg: The noble Lord made the point that I tried to make. He said, "If the union had an automatic forfeiture clause". If the union does not have such a clause his amendment will make forfeiture automatic. Is that what he intends?
Lord Wedderburn of Charlton: No, that is not my understanding. If it were I should join the noble Lord in writing something different. It is open to the union to have a clause which will not fall within those words. In the case of Radford in the 1970s the High Court held that what looked like an automatic forfeiture clause was not. Therefore, it is open to the union to say no. For instance, if the rules specify that after 52 weeks one is not only out of benefit but out of membership unless the branch considers otherwise that would fall outside my words. It would then be up to the branch to observe natural justice, to observe the

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issues before it and to decide whether membership had ceased. Some unions do not have automatic forfeiture clauses but the majority practice is to have such a rule. It is slightly offensive to tell a union which has an automatic forfeiture clause, "If you let that lapse the member who has failed to pay according to the rules has been expelled". It is silly.
Viscount Ullswater: I hope to be able to reassure Members of the Committee that the amendment is unnecessary. New Section 177(2)(b), which is inserted into the 1982 Act by Clause 13 of the Bill, provides that expulsion of an individual from a trade union happens not only when the union takes overt action but also when the individual's membership is deemed to have lapsed by virtue of an event specified in the union's rules; for example, the non-payment of union subscriptions. The amendment would provide that in the particular case of non-payment of subscriptions automatically lapsed membership would not be treated as expulsion.
I sympathise with the noble Lord's concerns that trade unions should not be prevented from shedding those of their members who do not pay their due subscriptions, but there is nothing in this provision which will prevent unions from doing so. It does not follow, though, that just because a trade union member's automatically lapsed membership is treated as expulsion that it will therefore be treated as expulsion which breaches the new provisions in Clause 13.
Let us consider how Clause 13 works. It provides that an individual may not be excluded or expelled from a union unless it is for a permitted reason. One of those permitted reasons is the conduct of the individuals, and I think we can all agree that non-payment of subscriptions constitutes conduct for which expulsion from the union might well be an appropriate penalty.
It is true that a limited number of activities are specifically excluded from this provision, but non-payment of union subscriptions most certainly is not one of them. Provided that non-payment of subscriptions was the genuine reason why this individual was expelled from the union, then, that expulsion would be for a permitted reason, and the union would have acted entirely lawfully.
I trust that this reassures the noble Lord and that he will be persuaded to withdraw this amendment.
Lord Wedderburn of Charlton: I am grateful to the Minister. Previously he gave me a declaration and now he is giving me some sympathy. Therefore, we are making some progress.
We are concerned here with the definition of "explusions". Two issues arise. Let us consider the position of the member who complains. He must show an exclusion or expulsion and then he must show a reason which is not justified. I am not concerned with the reasons. I agree with the Minister that we are dealing with expulsions. I do not quite understand why the Minister insists upon the ordinary lapse of membership being treated as an expulsion. I do not see where it gets the Minister. He said that it did not get me anywhere. With respect, that is not quite right.
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When tempers are hot—and even in your Lordships' Chamber disputes become heated on occasions—the member who must prove his case will get over the first hurdle if he can show a lapse. He will say, "Ah, I have been expelled. Let's get onto the real reason". It seems to me that that should be proved in a rather different way. Otherwise, he is already half-way home—I use the language of the court room.
I ask the noble Viscount to look again at this matter because it is an important administrative issue. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 51 and 52 not moved.]
On Question, Whether Clause 13 shall stand part of the Bill?
Lord McCarthy: The Minister is like Justice Adam Overdo in Bartholomew Fair. He gets out his little black book and looks for enormities—more and more enormities. However, he only finds them in trade unions. He finds them everywhere in trade unions. He finds it an enormity that the Bridlington rules failed to impose a single union deal. I suppose that if they had imposed a single union deal and Gavin Laird or someone else had complained, as he did when a single union deal was imposed on him, that would have been another enormity.
The biggest enormity of all is that the trade unions are still attempting, despite the introduction of this clause, to retain some degree of control over entry into and exclusion from their organisations. That is a real enormity. That is what sets off Justice Adam Overdo this evening. It is such an enormity that it justifies the clause.
The problem is that it cannot justify the Government continuing to say that they subscribe to the principle of freedom of association in the ILO because the ILO, along with the Government and all members of the Government, will accept that the principle of freedom of association is a two-way flow when they are not discovering the enormity of trade unions.
The noble Lord, Lord Boyd-Carpenter, says that of course everybody should not be allowed to enter the Carlton Club. The members and committee of the Carlton Club are entitled to have some say—of course they have almost total say—over who joins the club. There is a three-year waiting list to join the Garrick Club. It is proper that the Garrick Club should have some degree of control over entry to and exclusion from the organisation. Everyone cannot go to Balliol. The fellows of Balliol decide who goes there. Everybody cannot join a political party. Everybody cannot join the Trustee Savings Bank. Everybody cannot have a bank account. Most important, everybody cannot have a job. You can have the right to join a union but you cannot have the right to a job because the employer decides whom he will employ.
Only in the field of trade unions can we do away with the two-way flow which is accepted everywhere else. It is accepted in the ILO as regards the freedom of association. If you form an association, you are entitled to decide in certain ways, in general, who joins the organisation. It may be our fault because of the way in which the debate has developed this evening.

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We have concentrated too much on exclusions. The Bridlington agreement is essentially about poaching. It is essentially about unions which have taken into their organisation members who are already in one organisation but who have become disaffected and in some way or other believe that they will receive a better deal by joining the other organisation. The TUC is saying that if that is allowed to happen, there will be chaos. The Bridlington principles do not apply to entry of organisations. That does not need to go to a disputes committee; but this clause does.
This clause does not deal only with exclusions. Of course we are right to stress that it will undermine single union agreements. The Minister said that that is another enormity. It is an enormity to believe that single union agreements will be undermined in that way and even if they are, employers have a simple way out because they need not sign any agreements at all. Basically what is involved is the freedom of association for trade unions. The Government must explain why those principles which apply to all other organisations—you cannot obtain a credit card in Marks & Spencer without filling in the form—should not apply to trade unions.
Some people have tried to dig up the fact that once upon a time, a long time ago, trade unions operated closed shops. They no longer operate closed shops. There are still closed shops because many professional associations still have closed shops. However, we are dealing with trade unions. One cannot argue the closed shop case because we now have open shops. I put it to the Committee that there is no reason why we should accept the extremely narrow grounds on which the Government intend to allow trade unions to choose, namely, area qualifications, qualifications relating to occupations and a very narrow area of conduct. If trade unions took that seriously and made that a guiding principle, there would be no general unions. The only way in which to exclude people would be to narrow down the definition to such an extent that it would not be possible to have more than a couple of dozen members. Perhaps that is what the Government want.
Of course we need general unions. We need unions which have a diverse approach to different industries and occupations. Of course they must be regulated and must be able to have single union deals. That is why we intend to divide the Committee on whether the clause shall stand part of the Bill.
Lord Murray of Epping Forest: The paradox of the proposal is that it is not about union rights at all. It is about union responsibilities and about good order in industry for employers. It is not the unions which will suffer from the removal of Bridlington. It will set many humans free, as they would like to have been free in the past, to go on their merry way, picking up members wherever they like, putting pins in employers wherever they like and raising the ante wherever they like. They have only been prevented from doing that, in the interests of good industrial relations, by the TUC. My prediction is that the outcome of all this will either be the law of the jungle reigning to some extent in industry with the more aggressive unions making
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hay at the expense of employers, or—the more likely outcome—employers themselves developing methods of limiting the ability of their employees to chop and change between unions. That will be a further limitation of the rights of individuals. I believe that employers will respond in a quite pragmatic way.
I often felt, when I was dealing with these matters in a previous incarnation, that I should have sent the bill for my services to the employers concerned as they were the people who had the benefit of my services. It is a paradoxical situation that those who claim to represent, or are accused of representing, the interests of labour should be arguing for a quieter life for employers. Be that as it may, but when the day of reckoning comes we shall know who was responsible for it.
6 p.m.
Lord Wedderburn of Charlton: I am emboldened to add two or three sentences by what my noble friend Lord Murray of Epping Forest has just said. I agree with my noble friend on the Front Bench that the base of one's opposition to the clause, whatever its effect upon TUC arrangements—and that will certainly be severe—must be the infringement of fundamental values and principles as to freedom of association. The Minister has not really answered that point today; no doubt he will have to do so in other places.
No principles of this kind have been adopted, or in most cases could be adopted for constitutional reasons, in France, Germany, Italy, Spain, Portugal, the Netherlands, Greece or Luxembourg. One day someone will ask the United Kingdom what it thinks it is doing with the level playing field in terms of workers' associations in the Community. However, the real point I am prompted to make concerns a matter that my noble friend Lord Murray mentioned. Some would consider I should not mention it because in a sense it may constitute a way out. However, I do not consider this matter to be merely a game of ludo or snakes and ladders. We must look at what is being enacted. There may be ways out and they involve all the problems that my noble friend outlined.
The union is to be allowed to operate its rules according to whether it represents people in a trade, an industry, occupation, grade or other category. What is a trade or industry? My mind goes back to the good days of Schedule 11 in the 1970s when an issue came before the central arbitration committee as to whether someone who was working in a factory which manufactured gum boots should be categorised as being in the footwear industry, where a set of collective agreements obtain, or in the rubber industry, where other collective agreements obtain. The CAC had to do the best it could with that situation.
That makes one realise that some form of arbitration as regards who is working where and who is organising where would not be illegal under the clause. It certainly would not be illegal other than for compensation but I wonder whether it would be in any sense touched by the clause. If the Government say it is touched, we can see how deep we have gone. If the Government say it is not touched by the clause, no

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doubt they will tackle the matter in the next piece of legislation. I am sure there will be another Bill on the issue unless the Government meet their just fate at the hands of the electorate. If what I have suggested is correct, the Government will take action because they cannot bear trade unions to have what my noble friends have referred to as freedom of action in this area.
The definitions of some of the terms in this part of the Bill will be pored over. I should not say any more about the matter because I am sure many would say that the lawyers will do well out of considering it. That, no doubt, will be another disadvantage from the Government's point of view. Let us divide on this clause, but let us not give up because even now there are ways around certain parts of it. If we take those ways, we shall discover whether the Government intend to take the final step towards clamping down on freedom of association.
Lord Stoddart of Swindon: New employers come to this country and say that they want to see a single union agreement and everyone agrees to it. On seeing this legislation they then realise that the single union agreement has been watered down. They discover that there may be trouble which they had not anticipated, trouble that did not exist before. If the Government believe in the single union agreement and the Conservative Party believes in it, then the Government are shooting themselves in the foot in this Bill and this particular clause.
My second point concerns the ability of a trade union to take action against one of its members who has injured that organisation. That is what we are talking about—individuals who have caused distress and injury to a trade union. We are not talking only about strikes; we are talking about industrial action. That action could be a strike or it could be industrial action that is short of a strike. It could, for example, be industrial action about safety, and the action, or the non-action—
Viscount Ullswater: It could not!
Lord Stoddart of Swindon: I am afraid it could. The action or non-action of a person not acting in concert with his colleagues could very well put someone in jeopardy. That may seem far-fetched but there are other occasions when a single individual, or group of individuals, may undermine action which the huge majority believe is right and proper for the good of the majority and the good of all people working in an organisation. A small group may, perhaps by co-operating with an employer, undermine a decision which virtually everybody else has agreed is in the interests of those employed. Surely that cannot be right. Good heavens above, the Conservative Party was in turmoil about a week ago when a number of its members voted against the Government. There were immediate calls for deselection and even expulsion from the organisation. If that process is good for one organisation, surely it is good for another.
Those in the Conservative Party who wanted people expelled believed that in voting against the Government they had done the organisation harm.
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They wanted those people expelled. Yet here in this Bill we have a situation where a group of people who actually work in industry—they are much more important than the people I have just mentioned—and provide a living for us are not able to take action against people who may have undermined their wages, their conditions of service and the very working practices at the factory where they work. Those are the points which have been raised by my noble friends and they are reasonable points. They concern individual liberty. We should not forget that. The whole democratic system, the country and the Government work on the basis of a majority vote. In the case of the present Government that is only 42 per cent. We govern our country and our institutions, whether they be clubs, the Stock Exchange or trade unions, on the basis of the will and the good of the majority. That is the principle which the Government are undermining in this particular clause.
Lord Boyd-Carpenter: Members of the Committee opposite, and the noble Lord, Lord McCarthy, in particular, have said that they intend to divide the Committee on the question that the clause stand part of the Bill. I do not flatter myself that I have the slightest chance of dissuading them from that foolish intention. However, I consider that one word should be spoken in support of my noble friend the Minister and in opposition to their proposal.
We have covered the ground dealt with by Clause 13 at considerable length, in considerable detail and with a great deal of patience and goodwill. There is, of course, a difference of view between both sides of the Committee on the general merits of the case. This is an old controversy. For many years there has been a difference of attitude between the two major parties in respect of certain aspects of trade union law. There is a genuine difference of opinion that can only be resolved in our usual democratic way, by a vote.
I say to my noble friend the Minister that, having listened to the whole of the debate, I am fully satisfied that this is an excellent clause, that it follows on from the previous legislation on this subject for which the present Government and their predecessor were responsible and that it will help to continue the industrial peace and good order, which is one of our strongest points today. Therefore, the sooner we enact it the better.
Viscount Ullswater: I am grateful for the support of my noble friend Lord Boyd-Carpenter. I am also slightly surprised, as he was, that the noble Lord, Lord McCarthy, is determined to divide the Committee on the issue. Therefore, we have no debate on the issue. The noble Lord's mind is made up and I dare say he is not prepared to listen to whatever I say. However, in one last effort perhaps I may ask him to consider again that the clause should stand part of the Bill.
We believe that it is time that individuals had the right to join the trade union of their choice. The Bridlington principles operate to restrict that right and amount to nothing short of a cartel arrangement whereby trade unions, under the auspices of the TUC, carve out monopoly spheres of influence.

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We have heard it argued that this provision will lead to mayhem in the workplace. If that argument is to be believed, when the Bridlington rules cease to have effect we can expect little short of anarchy. We have heard a sorry tale of constant trade union squabbles over members, the breakdown of single union agreements, the loss of inward investment and so on.
I remain unconvinced by those arguments. I simply do not believe that the passing of the Bridlington agreement will create major inter-union rivalries and that suddenly individual employees will chop and change from one union to another. As to trade union squabbles, the recent evidence shows that the Bridlington rules serve to provoke rather than restrain these.
These proposals will not have the destabilising effect suggested. There is no reason why they should undermine single union deals, which I recognise are important to some overseas investors. Individuals already have the right not to join a particular union, whether it is recognised or not. These proposals will mean that they still have that right, but they will also have the right not to be unreasonably excluded from any union—again, regardless of whether or not the union is recognised or is party to a single-union deal. Indeed, it is my view that it is the operation of the Bridlington principles that puts inward investment at risk—as Ford's decision to locate £40 million of investment and 1,000 jobs in Spain rather than Dundee shows.
I have studied the text of the Bridlington principles. I understand that they were drawn up in 1939, in a very different climate from the present one. As far as I can see, nothing in the text of the principles makes the slightest reference to the wishes of trade union members or potential members in deciding which union should be able to represent them. Can that be right? Should not individuals have the right to decide which union would best serve them and the right to join that union? Would it not be better for trade unions to be subject to that sort of competition, encouraging them more accurately to meet the needs and aspirations of their members? I believe that it would, and many of the more enlightened trade union leaders have apparently come to that view.
The clause therefore aims to prevent a trade union from expelling or excluding individuals from membership except on certain reasonable but closely defined grounds. The clause will introduce real freedom of choice to trade union members and I commend it to your Lordships.
6.15 p.m.
On Question, Whether Clause 13 shall stand part of the Bill?
Their Lordships divided: Contents, 106; Not-Contents, 42.

Division No.2

CONTENTS

Abinger, L.

Arran, E.

Allenby of Megiddo, V.

Ashbourne, L.

Archer of Weston-Super-Mare, L.

Astor, V.

Belhaven and Stenton, L.

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Beloff, L.

Lucas of Chilworth, L.

Blatch, B.

Mackay of Ardbrecknish, L.

Boyd-Carpenter, L.

Mackay of Clashfern, L. [Lord Chancellor.]

Brabazon of Tara, L.

Bridgeman, V.

Macleod of Borve, B.

Brigstocke, B.

Marlesford, L.

Broadbridge, L.

Marshall of Goring, L.

Brougham and Vaux, L.

Merrivale, L.

Cadman, L.

Mersey, V.

Caithness, E.

Mottistone, L.

Campbell of Alloway, L.

Moyne, L.

Campbell of Croy, L.

Munster, E.

Carnegy of Lour, B.

Murton of Lindisfarne, L.

Carr of Hadley, L.

Napier and Ettrick, L.

Chalker of Wallasey, B.

Norfolk, D.

Chilver, L.

Orkney, E.

Clanwilliam, E.

Oxfuird, V.

Clark of Kempston, L.

Park of Monmouth, B.

Colwyn, L.

Pearson of Rannoch, L.

Cox, B.

Pender, L.

Craigavon, V.

Platt of Writtle, B.

Cranborne, V.

Pym, L.

Cumberlege, B.

Rankeillour, L.

Dacre of Glanton, L.

Reay, L.

Davidson, V.

Rennell, L.

Denton of Wakefield, B.

Renton, L.

Dudley, E.

Rodger of Earlsferry, L.

Elibank, L.

St. Davids, V.

Elliot of Harwood, B.

Saltoun of Abernethy, Ly.

Elliott of Morpeth, L.

Sanderson of Bowden, L.

Elton, L.

Skelmersdale, L.

Ferrers, E.

Strathclyde, L.

Finsberg, L.

Strathmore and Kinghorne, E. [Teller.]

Fraser of Carmyllie, L.

Gilmour of Craigmillar, L.

Sudeley, L.

Gisborough, L.

Suffield, L.

Goschen, V.

Swansea, L.

Hayhoe, L.

Swinfen, L.

Henley, L.

Switon, E.

Hesketh, L. [Teller.]

Torrington, V.

HolmPatrick, L.

Trumpington, B.

Hooper, B.

Ullswater, V.

Howe, E.

Vaux of Harrowden, L.

Hylton-Foster, B.

Vinson, L.

Ingrow, L.

Vivian, L.

Jeffreys, L.

Wakeham, L. [Lord Privy Seal.]

Kinnoull, E.

Layton, L.

Westbury, L.

Leigh, L.

Whitelaw, V.

Lindsey and Abingdon, E.

Wise, L.

Long, V.

Young, B.

NOT-CONTENTS

Airedale, L.

McCarthy, L.

Ardwick, L.

McIntosh of Haringey, L.

Clinton-Davis, L.

McNair, L.

David, B.

Mallalieu, B.

Dean of Beswick, L.

Merlyn-Rees, L.

Donoughue, L.

Morris of Castle Morris, L. [Teller.]

Fitt, L.

Gallacher, L.

Murray of Epping Forest, L.

Graham of Edmonton, L. [Teller.]

Nicol, B.

Ogmore, L.

Grey, E.

Pitt of Hampstead, L.

Harris of Greenwich, L.

Plant of Highfield, L.

Hilton of Eggardon, B.

Richard, L.

Houghton of Sowerby, L.

Rochester, L.

Irvine of Lairg, L.

Seear, B.

Jay of Paddington, B.

Shackleton, L.

Jenkins of Hillhead, L.

Strabolgi, L.

Kennet, L.

Tordoff, L.

Leathers, V.

Turner of Camden, B.

Listowel, E.

Wedderburn of Charlton, L.

Longford, E.

Williams of Elvel, L.

Resolved in the affirmative, and Clause 13 agreed to accordingly.
6.23 p.m.
Clause 14 [Right not to suffer deduction of unauthorised or excessive subscriptions]:
Lord McCarthy Lord McCarthy moved Amendment No. 53:
Page 27, leave out lines 33 to 37.
The noble Lord said: The title of Clause 14 is,
"Right not to suffer deduction of unauthorised or excessive subscriptions".
The provision concerns the check-off. The clause provides that deductions in union subscriptions must be authorised in writing to an employer within three years by a member who wishes to have his money deducted in that way. It provides that all increases shall be notified in advance and agreed by the worker; and that any complaint about the process can be taken to an industrial tribunal.
I set that out because the amendment does not challenge nine-tenths of the provisions of the clause. We argue that much of what the clause stipulates by law in fact operates already in industry. All we wish to do is to leave out subsection (3) which states that an authorisation is effective and current only if it falls within a period of three years. That means that there has to be reauthorisation every three-year period in order to maintain the legality of the check-off. Therefore one would still need to have authorised deductions. One would need to have the worker's signature which could subsequently be withdrawn. The employee would need to be told of increases and would have the right to cancel those increases. There would be the original complaints procedure. We simply state that the signature would continue and would not have to be reactivated every three years.
I dare say that the Minister will say that this would be another enormity. It would certainly put the trade unions in a position alongside all other organisations regarding authorised deductions. I refer to such matters as direct debit arrangements with our banks, payments to mortgage companies, membership of clubs, the moneys that we give to the income tax man and so on. We have an agreement which lasts until we cancel it. I have no doubt that the Minister will say that that is right for all those organisations but that in the case of trade unions it would be an enormity.
When the issue was debated in another place, three arguments were advanced. I do not know whether the Minister will give us different arguments today. We were told that at present the union can assume consent by the existence of a prior collective agreement without individual consent and that the clause deals with that. The amendment does not touch that issue. The provision continues.
We were told that mistakes can be made without periodic consent. That may be so. It can be so in all other such direct debits. Mistakes can be corrected. The Government do not come forward with concrete evidence—but when one has an enormity one does not need evidence.
We were told that at present—it was the strangest thing that we were told in another place—if one cancels the check-off there is no way of rejoining or remaining in the union. That is a strange view for
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which there is no evidence. Thousands of members pay their dues in some other way when they come off the check-off.
The arguments advanced to date do not relate to the basis of the amendment. I can envisage only one argument, and the Government have not put it forward, which might justify making this special case for the check-off system. Of course many employers object to the provision; we could read their names out if necessary. The only argument that I can envisage is that it puts strain on the employer. The Engineering Employers' Federation, the CBI and the IPM have stated that. That is what the issue is about. It will put strain on employers. Employers will need to go through the process every three years. It is a considerable annoyance, as I understand the noble Lord, Lord Mottistone, will argue later. Therefore let us keep it in the Bill and perhaps they will cancel the check-off system anyway. But if one seeks a better argument, I do not believe that one can find it. I beg to move the amendment.
Lord Rochester: In my experience in the chemical industry, in which it is the general practice to operate the check-off system, employees have had no difficulty in exercising control over the payment of their union subscriptions. The initial authorisation should certainly continue to be required on an individual basis. But insistence on reauthorisation every three years on the basis proposed in the clause is bound, as the noble Lord said, to cause an unreasonable increase in the administrative burden, not only on trade unions but also on employers who would nevertheless not wish to withdraw from check-off arrangements.
For the life of me I cannot understand why the Government should treat union members as morons and, in that capacity, as less capable than individual citizens and other ordinary people of cancelling such arrangements as and when they wish. I gladly support the amendment.
Lord Stoddart of Swindon: I too wish to support the amendment. I cannot understand why the Government are taking this line with trade unionists. Why on earth should people be able to have charitable deductions taken from their pay and give one authorisation which remains for all time, but if they want to give a donation to their trade union they must renew it every three years? That is the way I understand the clause. Why should there be any difference?
What will cause anxiety to many people is that the employer will be put at risk if he continues to deduct subscriptions for which there is no authorisation. I believe that there is an amendment that may put the duty on a trade union to get in touch with its members about renewing their authorisation. In the last analysis, the responsibility lies with the employer because he will be liable if an amount is wrongly deducted from a wage or salary of one of his employees. Therefore, it seems to me that, one way or another, a great burden is being put on employers unnecessarily.
I hope that the Government and the noble Viscount will seriously consider what has been said because this

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is a serious point which worries employers—probably employers more than trade unionists. Nevertheless, it is a worry. There is absolutely no necessity for the three-year rule. I agree that it is fine to have a personal authorisation. I do not quarrel with that although the present system seems to be working all right. But once the authorisation is made, it would save a great deal of trouble for everyone, including employers, if the Government accepted the amendment.
6.30 p.m.
Lord Finsberg: It is really Alice in Wonderland to hear the arguments on the other side pleading for poor employers. It may be convenient but it does not ring true. If one decides to have one's state pension paid by post every year, someone has to certify that one is still alive—not every three years, but every year. Every time there is a new electoral register, one has to fill in the form. So I believe that it is right that there should be this check. I wish to see it properly maintained and I believe that it is right.
Lord Stoddart of Swindon: Would the noble Lord mind if I intervene? He said that someone has to certify that a person is still alive. But the employer will know whether an employee is still alive because he is paying his wages.
As for pensions, the DSS knows very well whether a person is alive and, so far as I know, no one has to authorise every three years that the pension is to be paid or that a person is entitled to the pension.
Baroness Seear: I have been paid a pension for 15 years and no one has ever asked whether I am alive.
Lord Finsberg: I am bound to say that I remember employers in the newspaper industry paying Mickey Mouse, who was never there. So I do not believe that that is a good argument.
Lord McCarthy: That is why I say to the noble Lord that that is precisely the case. Mickey Mouses are used, enormities are found. There is no evidence whatever adduced by the Government that Mickey Mouses come in to check off an authorisation. Nothing has been put forward to that effect, these are just phrases thrown about the Chamber.
Lord Stoddart of Swindon: May I pursue the point? The employers might well be happy to pay the wages, but I am not at all sure that employers will want to pay the union dues as well.
Lord Murray of Epping Forest: The noble Lord, Lord Finsberg, reminded us of Alice in Wonderland, but this is an Alice in Wonderland clause. This is the Red Queen saying, "Off with his head!" It is a measure of the Government's disappointment with the effects of their previous legislation. The clear intention throughout the whole of the Government's industrial relations legislation has been to weaken the unions, to weaken the ability of combinations to protect the interests of working people. That is what they have been about, right from the beginning. They had hoped to see the trade unions wither on the vine, but it has not happened.
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In spite of all the unemployment, there are still 10 million people who insist on maintaining their trade union membership. I can understand the disappointment, the chagrin, the frustration of the Government. I can understand them searching for some means of genuinely weakening trade unions. This is what they have come up with. Here we come to the heart of the Bill, or rather to the jugular vein of the Bill. It is not a unique provision. We have seen it in relation to the merger provisions, the withdrawal of funding, and so on. That is what it is all about.
I said earlier, and repeat, that the purpose of the Government is to provide employers, if possible, with a union-free society. The purpose of the provision is to sap the resources of unions. That is what it is about. It is not about technicalities or obligations on employers, and so on.
I doubt whether the Government will succeed in their ambitions, but in the wish that their efforts may be weakened, I hope that the amendment will be carried and will improve the Bill.
Baroness Denton of Wakefield: First, I reassure the noble Lord, Lord Murray of Epping Forest, that we are not regretting the numbers of people who are members of trade unions, but are celebrating the improvement in industrial relations.
Clause 14 introduces significant new protections for employees who pay their union subscriptions by means of the check-off. For the first time, all employees will have the right to give their consent before deductions are made; they will have the right to withdraw that consent without being obliged to leave their union; they will have the right to be informed before increased deductions are made; and they will have the right to reconsider at intervals whether they wish to continue to pay their subscriptions in this way.
The requirement that an employer should seek the renewed consent of his employees to check-off deductions at periodic intervals has been included in this provision for important reasons of principle as well as for practical considerations.
Clause 14 treats employees who pay their union dues through the check-off as individuals rather than as a homogeneous group which would appear to be the preferred approach of some parties. It is, quite simply, only right that individual employees should have the opportunity to decide whether they want to continue to pay their subscriptions through the check-off. Their continued payment through the check-off should not be taken for granted: this provision gives them that right.
There are also important practical arguments for seeking renewed consent. There is simply no logic in arguing that an employee should have a right which he can exercise only once and then never again. An employee may work for more than 40 years for the same employer. A lot can happen in that time. The policies of both his trade union and his employer may change. The nature of the leadership of his union and the ultimate ownership of the company for which he works may change. Where is the sense in saying that he must have a right to consent to a deduction—
Baroness Seear: Is the noble Baroness seriously saying that the individual member cannot say, "I do not want to go on"? He does not have to wait to be asked. He has a tongue in his head and a pen in his hand. Surely he can say that he does not wish to continue to pay.
Baroness Denton of Wakefield: I point out that at the moment the only way he can leave check-off is to resign from the union.
Noble Lords: That is not true.
Baroness Turner of Camden: I have to tell the Minister that that is not so. It is absolute nonsense. In my union we had many people who withdrew from check-off and paid by direct debit. When they were promoted they did not want the employer to know that they had continued their union membership. Now they were middle managers, but they continued their union membership, not through check-off but by direct debit or cheque annually to the union. It is quite possible to do that.
Lord McCarthy: Perhaps I may say again to the noble Baroness what has been said many times. The Government use a technicality. Of course, if one cancels the check-off and does nothing else, one's membership will lapse. In that sense, if one cancels the check-off one leaves the union. But one is not without any other option. One can decide, as the noble Baroness said, that one wants to pay by direct debit. One can ask for a card. One can pay union dues in any way one wishes. It is only if one does nothing that membership lapses.
Baroness Denton of Wakefield: I am sorry that the noble Lord, Lord McCarthy, should so describe the matter. The only legal right to leave check-off is by leaving the union.
Noble Lords: That is not true at all. It has nothing to do with the matter.
Baroness Denton of Wakefield: Perhaps I may continue on the renewed consent issue—
Lord Dean of Beswick: The Minister speaks in the hope that friends behind her will go through the Lobbies again. But on this side we expect her to put the case factually and not live in fantasy. She is quite wrong in principle in what she is saying. The facts of life in trade unions regarding the check-off are quite different from how she describes them.
Baroness Denton of Wakefield: I repeat that the legal right is as I have described it. If I may return to the comment of the noble Baroness, Lady Seear, I suggest that of course people can say no, and can use their own initiative. But over a period of possibly some 40 years, drawing attention to the fact that that is an option can only be of benefit to the individual.
Against all the evidence of recent years about how the check-off operates in, for example, the building industry, it would be frankly naive to assume that every employee covered by the check-off would be given an effective right to opt out if his employer was required to seek his consent only once. The hundreds
1598
of building workers in London who discovered that they were not members of UCATT although they had been paying the check-off for years certainly had no effective rights. As one of them said at the time, "A member known to me thought he had been paying his contributions for two and a half years and subsequently found he was not a member. Now he asks, where has the money gone? Is he alone?"
Lord Murray of Epping Forest: Perhaps the noble Baroness will forgive me. I believe that she is speaking on exactly the wrong point. The example she mentions relates to a point about fraud on the part of employers, who deducted payment and did not credit it to the member. It has nothing whatever to do with the member's rights to be or not to be a member of the union. It is about the employer defrauding his employees.
6.45 p.m.
Baroness Denton of Wakefield: Members of the Committee will appreciate that I said earlier that the position can change with both the employer and the union. Nor is that the only example. It was revealed last year that two employees of Hackney council who thought that they were members of the EETPU were in fact paying subscriptions to the TGWU because their check-off forms had been forged. Their subscriptions had been switched from one union to the other without their knowledge or permission. The forgery only came to light because of the subsequent dispute over the alleged poaching of union members. An opportunity to reaffirm their consent at regular intervals would have ensured that they were not dependent on chance to discover the fraud. This is an example not just of how the check-off can be abused but of how a requirement on the employer to seek consent every three years would ensure that that abuse was brought to light.
Secondly, if there is no increase in union subscriptions there will be no obligation on the employer to remind employees of the check-off or their right to opt out of it. Recently, union subscriptions have been increased quite often but that has not always been the case. Or let us take the case of the union which sets its subscription rate at a percentage of earnings. We accepted the suggestion of the Opposition in another place that employers should not be required to notify their employees in advance of increases which are due solely to a change in earnings. That may mean, however, that those employees whose subscriptions are calculated in that way will never receive a notification of increase, as the percentage rate may never change. Without the requirement to seek renewed consent at intervals, their continued subscriptions would be taken for granted without further information or consultation.
In the Government's view it is not good enough to rely simply on an initial requirement to seek consent and then to rely on an increase in dues to trigger a reminder from the employer that there is a right to opt out of the arrangement. That reminder may never come. The only certain way to make sure that there is

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an effective freedom of choice throughout an employee's employment is to ask him or her every few years if he or she wants the arrangement to continue.
It has been argued that the requirement places an unacceptable burden on employers. Let me make it clear that, when it comes to the check-off, we are discussing an arrangement which is in no sense the result of government regulation. Check-off arrangements between employers and trade unions are entirely voluntary so far as employers are concerned. No legislation has ever required or even encouraged employers to adopt those arrangements. There is not, and never has been, any tax incentive for them to introduce the check-off. Indeed, surveys show that a majority of employers who operate check-off arrangements do not even charge the unions concerned for the administrative cost.
If, therefore, there are any burdens involved in the check-off, they are burdens which employers have assumed entirely voluntarily. Furthermore, as I am sure the Opposition agree, it is already the practice of good employers to make sure that the check-off operates with the full knowledge and consent of their employees. There is, as we have pointed out, currently no legal requirement on employers to seek individual consent to the check-off if that arrangement is part of a collective agreement. In that case the arrangement becomes part of the contract of employment of each employee covered by the agreement.
But although there is no legal requirement on employers to seek the consent of each employee to the check-off, a good employer will not want to rest simply on the legal position. He will want to be sure that all his employees are happy with the arrangement. The purpose of this clause is in large part to ensure that all employees enjoy, as a legal right, the protection which many employees already enjoy as a matter of good practice.
What is the nature of the burden that such a requirement will impose on employers? All the employer needs to do is send each employee a slip of paper once every three years with a simple question, "Do you still want your union dues deducted from your pay?" The employee must reply yes if the deductions are to remain lawful. That slip of paper could be enclosed with the payslip or sent out in any other way which suits the employer. That is not a major burden. And, of course, if every employee says yes there will be no further action for the employer to take.
It has been suggested that some employers' organisations support the proposition that there should be only one consent requirement. That is not the case. When the Green Paper was published a number of employers' organisations supported the original proposal for annual consent. Some suggested a longer period. But none suggested that we should dispense totally with the proposal to require renewed consent at some period after the initial consent given when someone first starts their employment.
I certainly cannot recommend that the Committee accept an amendment which would not provide for any review of check-off once an employee had given
1600
his or her initial consent. I have already said that none of the employers' organisations which asked for a modification of the original proposal for annual review went that far. As I indicated, to do so would be wholly illogical. If there is a case for establishing the right to consent to the check-off when someone begins employment, there is certainly a case for requiring that consent to be sought periodically thereafter. Three years seems the right period for that periodic consent and that is what I recommend to the Committee.
Lord Wedderburn of Charlton: Before the noble Baroness sits down, there is a point which I took up with the Minister in previous discussions and on which I hope she can say a few words. She mentioned, as the Government have always said, that where a collective agreement had an arrangement for check-off, it always automatically entered into the terms of the individual contracts of employment. On a previous occasion I ventured to suggest that that was not necessarily always so and there was more difficulty about it.
I regret that I do not have a copy of Hansard with me, but I believe the Minister said that he would try to bring an example with him of that type of collective agreement. I wondered whether he or the noble Baroness have anything of that kind with them or whether they can bring it forward later in the proceedings because the point will arise again.
Baroness Denton of Wakefield: Let me repeat the current legal position which is that the situation of collective agreement regarding check-off is unsatisfactory because it can, by virtue of that collective agreement, be imposed on a worker without his prior knowledge or consent. However, I shall look at the issue and come back to the Committee.
Lord McCarthy: It is very difficult to answer the points put by the noble Baroness and equally difficult to put them in any order. She started by saying that there had been a great improvement in industrial relations. That was said three times tonight. The Red Queen has already been mentioned—the Red Queen said that what she said three times was true. So perhaps there will be improved industrial relations.
It is difficult to square the improvement in industrial relations that the Government always claim with the need to discover and thrash out more and more enormities. Nevertheless it is the case. The first reason given by the noble Baroness was that there are reasons of principle. People use the expression "reasons of principle" when there are not many reasons of practice. The reason of principle that she advanced was that individuals—not groups—may not want to continue to have a check-off, but wish to decide as individuals rather than as groups. That was the point; but it does not cover the amendment. It covers the argument that we ought to ask individuals to agree and not have it arranged by collective agreement. I see that point and do not contest it. Therefore the reason of principle does not apply.
She also said that it could not be right to ask only once and not ask ever again. But one does not have to ask. People can do it off their own bat. People receive

1601
a monthly or weekly pay slip on which is shown a deduction, if there is one, for the trade union check-off. On the pay slip there is regular notification of what they pay and they can ask for it to be removed. I do not think that the point applies. However, if it is quite wrong for people to be told only once and they have to be reminded, they will be reminded when there is an increase. But if they have to be reminded every three years, then why does that reminder apply only to trade unions? I may be foolish enough to have done nothing about having undertaken 15 years ago to be a friend of Covent Garden. It is my fault if I do not take the initiative to remove myself from it because I do not know what I get out of it. But in the case of check-off and trade unions, it seems that a reminder has to be given every three years because otherwise it would be monstrous; but it would be monstrous to do something else only in the case of trade unions. Why is that so?
Finally, the noble Baroness dragged in certain pieces of evidence about what went on in the building industry and in Hackney Council. As my noble friend said, they were all criticisms of employers, employers who fleeced workers by taking away money, pocketing it and not signing up the workers to the union. That could happen at any time. I do not suppose there is a check on that because such an employer would probably put a deduction on the pay slip month by month anyway.
I do not believe that there has been any argument advanced by the Government. Unfortunately, it is five minutes to seven and far on in the day. We do not intend to divide the Committee at this time.
Amendment, by leave, withdrawn.
Lord Mottistone Lord Mottistone moved Amendment No. 54:
Page 28, line 3, leave out from ("by") to ("at") in line 4 and insert ("the union to the worker and notification thereof given to the employer").
The noble Lord said: This amendment is the substantive one. Amendments Nos. 57, 58 and 59 are consequential amendments relating to complaints of infringement of rights.
It has frequently been said during discussion of earlier amendments that companies have no objection to the check-off. That is absolutely true. It has also been said that companies were against the idea of having a three-yearly check. That is certainly not something I have been told by the CBI, which has concentrated on this particular point.
The point of Amendment No. 54 is not to affect the protection of union members from unauthorised deductions. It is only concerned with the cost of membership, which employers see as a matter for the unions to communicate to their members. In the Bill as it is written at the moment, subsection (5)(b) of the new Section 68 of the 1992 Act requires employers to give notice to the workers of the amount of increase, if such occurs.
Employers feel that they should not have to do that. Their feeling in the main is that how much people pay for membership is entirely a matter for the union and the member. The word "implore" is perhaps too strong; I ask very strongly my noble friend the Minister (who has not agreed in the past) to give very
1602
careful thought to whether it is reasonable to expect employers to be responsible for what is essentially a matter between a union and its members.
The employers are perfectly happy to be the agents in collecting dues. But the responsibility for notification surely should be from the union to the member and from the union to the employer, so that the employer makes the deduction. To make the employer responsible for telling the member that his subscription rate has gone up seems to me unreasonable. If I were the member and found notification in my pay packet that I had to pay more but the union had not told me about it or even suggested to me that the subscription would cost more, for whatever reason, I should feel very aggrieved. As I would see it, the employer had taken the initiative to put up my subscription for a reason that I did not know.
It cannot be for the employer to tell the union member why the subscription rate has gone up. That must be a matter for the union. Only the union will make the decision that that should happen. The wording of the amendment places too heavy a responsibility on the employer to tell the union member that his subscription rate is to be increased. One cannot expect the employer to know why. He probably has a good idea, but theoretically it is not his responsibility to explain the reason why; that is the responsibility of the union.
It may be that the wording of the amendment is not ideal. But the principle surely must be that the most that the employer can be expected to do is to apply an increase about which he is assured the union has already informed its members. It may be possible to find a better wording than the wording of the amendment.
That is my first point. I turn quickly to Amendments Nos. 57, 58 and 59, which are linked to Amendment No. 54. They are strictly consequential amendments to make sure that if the matter is referred, as it may be, to a tribunal, the tribunal is aware that the responsibility for informing the member of the increase is that of the union and not of the employer. After all, the employer is not responsible for the increase. I beg to move.
7 p.m.
Lord Rochester: I added my name to the amendment and, at least in principle, support the intention of the noble Lord, Lord Mottistone, in tabling it. It is significant that so many employers, organisations and companies of repute have complained in regard to the burdens which would be imposed upon them by the requirement that the employer, rather than the union, should give notice to the employee of any increase in the amount of union subscriptions.
In my view most significant is the way in which the TUC treated the point in its briefing to the Committee. It said,
"We accept that there should be an obligation on trade unions through appropriate channels to notify members of any increase that is to be made in subscriptions. We consider that this obligation should properly fall on unions rather than providing an additional burden on employers".

1603
That opinion comes from the TUC. The note continues:
"In addition, on notifying members of increases to be made in subscriptions, that would be an appropriate point at which to remind them of the right that is available to them at any time to withdraw their authorisation for deductions to be made from their wages".
I agree with the TUC on both points. In my view, it follows that if complaints are then made that appropriate notice has not been given to the employee under Section 68 of the 1992 Act, it is inescapable—as the noble Lord, Lord Mottistone, said—that for the purposes of the Wages Act 1986, the union should be joined as a party to any proceedings that may ensue and that industrial tribunals should be empowered to order the union to make an appropriate payment to the employee.
I stress—and I hope that it is apparent from what I have said in relation to previous amendments—that I do not like the clause. But if there is no escape from it, then the logic of the situation is as I have described. Along with the noble Lord, Lord Mottistone, I hope that the Government will think carefully before rejecting the principle underlying the amendment.
Lord McCarthy: We agree with almost everything that was said by the noble Lord, Lord Mottistone. He is quite right. The TUC has been attempting to negotiate some kind of agreement with the Government on the issue. The position of the TUC is as he stated. It accepts that deductions from an individual's wages should be made only with that individual's explicit and written consent. It accepts that the obligation to notify members of any increase to be made to subscriptions should be a trade union obligation. It considers that that obligation should properly fall on unions rather than provide an additional burden for employers.
The TUC believes that by accepting the two provisions it is enabling the Government to honour their election manifesto. That was basically what the Government said they would do. In so far as that is what is intended by Amendment No. 54, tabled by the noble Lord, Lord Mottistone, and supported by the noble Lord, Lord Rochester, that can be supported. Whether the wording is sufficient or whether the Government wish to suggest different wording, is open to further discussion. The central principle that deductions from an individual's wage should be made only with that individual's consent and that there is to be an obligation on trade unions, through the appropriate channels, to inform members, is accepted.
With regard to Amendments Nos. 57, 58 and 59, I agree again with what I take to be the spirit of what was said by the noble Lord, Lord Rochester. There is a great deal wrong with them and we are not necessarily committed to going along with what they say in the way that they say it. More importantly, we should like to hear from the Government.
Baroness Denton of Wakefield: I have every sympathy with the desire of my noble friend Lord Mottistone to lessen burdens on employers. However, I hope that I can show him and other Members of the
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Committee who have spoken that the amendments are not necessary and that they are at odds with the principles underpinning Clause 14.
Our starting point is the protection of the interests of the individual. Under the check-off, it is the employer, and not the union, who collects union subscriptions from the individual. It must therefore be the employer who is responsible for ensuring that the rights of the individual are safeguarded. That means ensuring that the individual has given his consent in writing before deductions are made. That means giving the individual the opportunity to consider whether he wishes to continue to pay his union subscriptions in this way at least every three years. And that means notifying the employee in advance before deducting a higher amount of money.
It would represent a fundamental distortion of the relationship between employer and employee to divert the responsibility for issuing notification of increases from the employer to the union. It is not the union who is deducting money from the employee's salary at source, but the employer. The notification issued by the employer to the employee is not simply a piece of random information. It is the employer's opportunity to say, "Next month I am going to deduct more money from your salary". That is information which the individual should be entitled to receive. I believe that we agree on that point. It is only right that the employer should himself let the employee have that information.
It has been argued that increases in union subscriptions are a matter between unions and their members—and indeed they are. I hope that all union members, not just those who pay their subscriptions in a particular way, are notified in advance when their subscriptions increase. That is not the issue here where we are concerned only with the check-off. Our concern is to ensure that employers notify their employees in advance before making those higher deductions.
My noble friend Lord Mottistone drew attention to an instance where an employer may be criticised because the union had not made the information known to the employee. It is important that the employee knows the situation.
Let us not forget that employers choose to operate the check-off and to make the deductions from their employees' pay. They must also accept the responsibility that goes with that decision by ensuring that their employees' interests are properly protected. However, it is no part of our intention that excessive burdens should be placed on business, and I should like to offer reassurance to my noble friend, who clearly has the interests of business at heart in relation to this point. I do not believe that our proposals need be burdensome in the way he fears.
First, as I have already said, the operation of the check-off is a choice that employers make. Any burden is therefore a voluntary one. All that we are requiring of employers is that they should ensure that they have written consent, renewed at intervals, to the making of the deductions, and that they should provide advance warning of an increase in those deductions. I should be surprised if any of those tasks

1605
require much in the way of additional effort from the majority of employers who operate a computerised payroll system.
If the employer wants the administrative assistance of the union, it is open to him to obtain it. More importantly, if the employer wants to charge the union for providing that service, that remains open to him. Many employers already charge unions for collecting their members' subscriptions on their behalf. Employers will continue to be free to charge unions for any additional administration involved in the proposals. If employers are concerned about possible tribunal cases where wrongful or excessive deductions are made, they will be free to ask the union concerned to indemnify them against any eventual financial consequences.
Employers can therefore protect themselves from any cost or the risk of any legal proceedings. However, they must take all the necessary steps to protect the interests of the employees from whom they make the deductions, and that must include the issuing of advance notices of increases. I hope that my noble friend will reflect on my remarks and withdraw the amendment.
Lord Mottistone: I hope that my noble friend will reflect on my remarks—that is much more important. The reply was most inadequate; it did not take up the points that I made.
The point at issue is that the employer is not responsible for the requirement of an increased subscription that is made by a union to one of its members. The union makes that decision.
It will be necessary to draft a new amendment. My noble friend did not reassure me at all. I hope that she and the Minister, who is more directly responsible, will look very carefully at how the relevant part of the Bill can be reworded to make it quite clear that an increased subscription is not the employer's responsibility, as the Bill appears to state.
I shall move further amendments that deal with the situation of making the employer more responsible for the union's responsibility than is reasonable. The fact that the employer may have more work to do is important. A check-off system has advantages for both sides, as everyone agrees—although it depends on the size of the company as to how helpful the system is. However, that is not a good argument for saying, "Because you are doing it voluntarily, you can do a lot more". That is what my noble friend Lady Denton appeared to be stating.
I do not think that this is an appropriate time to make an issue of the matter and take it to a Division. It would not be a good plan to do so because I am hoping to persuade the Minister that the situation should be altered.
In the meantime, I shall set to work to find another way of dealing with the matter and perhaps between us we can succeed. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Vipcount 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 p.m.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Judicial Pensions and Retirement Bill [H.L.]
7.15 p.m.
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, I beg to move that the Commons amendments be now considered.
Moved, That the Commons amendments be now considered.—(The Lord Chancellor.)
On Question, Motion agreed to.
COMMONS AMENDMENTS
[References are to Bill [83] as first printed for the Commons.]
1 Clause 10, page 11, line 5, after 'provision' insert '(a)'.
2 Page 11, line 8 at end insert '; or
(b) imposing conditions with respect to the exercise by any such person of any entitlement (whether or not under paragraph (a) above) which he may have to make any such voluntary contributions.'.
3 Page 11, line 35, leave out from 'of', to end of line 37 and insert
'any authorised provider who is, or may he, concerned in the investment of the voluntary contributions or the provision of the additional benefits in question.'.
4 Page 12, line 8, after 'scheme' insert 'constituted by this Part'.
5 Page 12, line 14, at end insert:
'but paragraphs (c) and (d) above have effect only in relation to a voluntary contributions scheme constituted by or under this Part.'.
6 Page 12, line 27, leave out 'paid' and insert 'made'.
7 Page 12, line 29, after 'rights' insert '(i).
8 Page 12, line 31, at end insert 'or
(ii) under any voluntary contributions scheme which, on termination of his membership of that scheme, may fall to be transferred into another scheme;'.
9 Page 12, line 42, at end insert:
'(k) specify any authorised providers—

(i) who are to invest any prescribed voluntary contributions, or

(ii) who are to provide any prescribed additional benefits, and, if two or more authorised providers are so specified, may make provision entitling any person who makes prescribed payments by way of voluntary contributions to elect between those authorised providers.'.

10 Page 12, line 48, leave out from 'Parliament' to end of line 4 on page 13.
11 Page 13, line 15, at end insert:

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"'authorised provider", in relation to the investment of any sums paid by way of voluntary contributions or the provision of any benefit, means a person who is authorised under Chapter III of Part I of the Financial Services Act 1986 to invest those sums or, as the case may be, to provide that benefit;'.
12 Page 13, line 20, at end insert 'or, in relation to Northern Ireland, Article 2(2) of the Social Security Pensions (Northern Ireland) Order 1975;'.
13 Page 13, line 22, at end insert 'or, in relation to Northern Ireland, Article 2(2) of the Social Security (Northern Ireland) Order 1986;',
14 Page 13, line 40, leave out 'or personal'.
15 Page 13, line 43, at end insert:
'and, where a person's voluntary contributions are made by deduction from salary, any reference to payment of, or by way of, voluntary contributions shall be taken to include a reference to the making of voluntary contributions by deduction or, as the case may require, to any voluntary contributions so made.'.
16 Page 13, line 46, at end insert:
'(10) Without prejudice to subsections (5) (c) and (d) and (6) (a) above, they may be paid out of money provided by Parliament—

(a) any sums required for or in connection with the operation or administration of any prescribed voluntary contributions scheme;

(b) any administrative expenses incurred under or by virtue of this section by a Minister of the Crown or government department.

(11) Any sums received under this section may be paid into the Consolidated Fund.'.
The Lord Chancellor: I beg to move that the House do agree with the Commons in their Amendments Nos. 1 to 16 en bloc. The amendments to Clause 10 are purely technical. They are drafting and clarificatory amendments. They do not alter the substance of the clause and have no new policy implications. One of their main aims is to ensure that the clause provides in practice the necessary regulation-making powers to cover the 3 varieties of voluntary contribution scheme which will fall within its scope; the additional voluntary contributions scheme; free-standing additional voluntary contributions schemes; and the purchase of added years. In particular they are directed at making sure the powers are appropriate to regulate free-standing additional voluntary contribution schemes which the existing draft of the clause somewhat overlooks. Other amendments are designed to ensure that administration costs are charged on the appropriate central Government fund. The remainder serve purely stylistic and clarificatory purposes. Unless there are any detailed points on specific amendments, I move Amendments Nos. 1 to 16 en bloc.
Moved, That the House do agree with the Commons in their Amendments Nos. 1 to 16 en bloc.—(The Lord Chancellor.)
Baroness Mallalieu: My Lords, I am personally grateful to the noble and learned Lord the Lord Chancellor for his helpful note of explanation to the amendments which I was able to see before this evening. It has been of great assistance to those noble Lords who, like me, have been seeking to understand
1608
them, I accept that they are purely technical drafting and clarificatory amendments and as such they have our support.
Lord Meston: My Lords, we are grateful to the noble and learned Lord for his explanation and comments and we support the amendments.
On Question, Motion agreed to.
COMMONS AMENDMENT
17 Clause 11, page 14, line 4, leave out 'that' and insert:

'(i) any scheme established by regulations under section 10 above which may fall to be regarded as a judicial pension scheme; and

(ii) the scheme'.

The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 17.
This is a technical amendment. The voluntary contribution schemes established under, or regulated by, Clause 10 will be (by virtue of the definition of 'judicial pensions schemes' in Clause 30) judicial pension schemes in their own right. Clause 11(1) (a) prohibits judges who are members of the new pension scheme from deriving pension benefits from more than one judicial pension scheme (except that they may also derive benefit from the top-up scheme established under Clause 19). The clause as drafted therefore appears to prevent a judge who joins the new scheme from earning pension benefits under a voluntary contribution scheme regulated by Clause 10. That is obviously not the Government's intention and the amendment rectifies this impression.
Moved, That the House do agree with the Commons in their Amendment No. 17).—(The Lord Chancellor.)
Baroness Mallalieu: My Lords, we support the amendment. It clearly does not reflect the intention of the Bill and we welcome the alteration.
On Question, Motion agreed to.
COMMONS AMENDMENTS
18 Clause 26, page 23, line 45, after 'order' insert
'(a)'.
19 Page 23, line 46, at end insert '; or
(b) amend subsection (8) above by adding offices to those for the time being specified in that subsection.'.
The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 18 and 19 en bloc. These are technical drafting amendments which rectify an earlier oversight and will enable the appropriate Minister by order to add to the list of "one-off" posts in Clause 26(8) of the Bill as well as to the list of posts of an ongoing nature in Schedule 5.
Moved, That the House do agree with the Commons in their Amendments Nos. 18 and 19 en bloc.—(The Lord Chancellor.)
On Question, Motion agreed to.
COMMONS AMENDMENT
20 Clause 31, page 28, line 10, leave out subsection (8).
The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 20. This amendment is to remove the standing 'privilege' amendment inserted by your Lordships at Third Reading.
Moved, That the House do agree with the Commons in their Amendment No. 20—(The Lord Chancellor.)
On Question, Motion agreed to.
COMMONS AMENDMENT
21 Schedule 2, page 31, line 43, at end insert:
"occupational pension scheme" has the meaning given by section 66(1) of the Social Security Pensions Act 1975 or, in relation to Northern Ireland, Article 2(2) of the Social Security Pensions (Northern Ireland) Order 1975;'.
"personal pension scheme" has the meaning given by section 84(1) of the Social Security Act 1986 or, in relation to Northern Ireland, Article 2(2) of the Social Security (Northern Ireland) Order 1986;'.
The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 21. This technical amendment serves to define the terms "occupational pension scheme" and "personal pension scheme" as they are used in Schedule 2 which deals with the transfer of accrued pension benefits in and out of the new pension arrangements. The definitions follow those used in Clause 10.
Moved, That the House do agree with the Commons in their Amendment No. 21—(The Lord Chancellor.)
On Question, Motion agreed to.
COMMONS AMENDMENTS
22 Schedule 3, page 38, line 7, after '(1)' insert 'after the word "provision" there shall be inserted "(a)" and'.
23 Page 38, line 8, at end insert '; or
(b) imposing conditions with respect to the exercise by any such person of any entitlement (whether or not under paragraph (a) above) which he may have to make any such voluntary contributions.".'.
24 Page 38, line 34, leave out from 'of,' to end of line 36 and insert 'any authorised provider who is, or may be, concerned in the investment of the voluntary contributions or the provision of the additional benefits in question.".'.
25 Page 38, line 43, at end insert:
(4A) At the end of that subsection there shall be added the words—
"but paragraphs (c) and (d) above have effect only in relation to a voluntary contributions scheme constituted by or under this Act or the Sheriffs' Pensions (Scotland) Act 1961.".'.
26 Page 39, line 1, leave out 'paid' and insert 'made'.
27 Page 39, line 3, after 'rights' insert '(i)'.
28 Page 39, line 4, at end insert 'or
1610
(ii) under any voluntary contributions scheme which, on termination of his membership of that scheme, may fall to be transferred into another scheme;'.
29 Page 39, line 15, at end insert:
(k) specify any authorised providers—

(i) who are to invest any prescribed voluntary contributions, or

(ii) who are to provide any prescribed additional benefits, and if two or more authorised providers are so specified, may make provision entitling any person who makes prescribed payments by way of voluntary contributions to elect between those authorised providers.".'.

30 Page 39, line 24, leave out from 'Parliament' to end of line 28.
31 Page 39, line 42, at end insert:
"'authorised provider", in relation to the investment of any sums paid by way of voluntary contributions or the provision of any benefit, means a person who is authorised under Chapter III of Part I of the Financial Services Act 1986 to invest those sums or, as the case may be, to provide that benefit;'.
32 Page 39, line 50, at end insert 'or, in relation to Northern Ireland, Article 2(2) of the Social Security Pensions (Northern Ireland) Order 1975;'.
33 Page 40, line 2, at end insert 'or, in relation to Northern Ireland, Article 2(2) of the Social Security (Northern Ireland) Order 1986;'.
34 Page 40, line 23, leave out 'or personal'.
35 Page 40, line 26, at end insert:
'and, where a person's voluntary contributions are made by deduction from salary, any reference to payment of, or by way of, voluntary contributions shall be taken to include a reference to the making of voluntary contributions by deduction or, as the case may require, to any voluntary contributions so made.
(10) Without prejudice to subsections (3) (c) and (d) and (4A) (a) above, there may be paid out of money provided by Parliament—

(a) any sums required for or in connection with the operation or administration of any prescribed voluntary contributions scheme; or

(b) any administrative expenses incurred under or by virtue of this section by a Minister of the Crown or government department.

(11) Any sums received under this section may be paid into the Consolidated Fund.'.
36 Page 43, line 21, after '(1) insert 'after the word "provision" there shall be inserted "(a)" and'.
37 Page 43, line 22, at end insert '; or
(b) imposing conditions with respect to the exercise by any such person of any entitlement (whether or not under paragraph (a)) which he may have to make any such voluntary contributions.".'.
38 Page 43, line 48, leave out from 'of' to end of line 50 and insert 'any authorised provider who is, or may be, concerned in the investment of the voluntary contributions or the provision of the additional benefits in question.".'.
39 Page 44, line 7, at end insert:
(4A) At the end of that subsection there shall be added the words—

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"but paragraphs (c) and (d) have effect only in relation to a voluntary contributions scheme constituted by or under this Act.".'.
40 Page 44, line 18, leave out 'paid' and insert 'made'.
41 Page 44, line 20, after 'rights' insert '(i)'.
42 Page 44, line 22, at end insert 'or
(ii) under any voluntary contributions scheme which, on termination of his membership of that scheme, may fall to be transferred into another scheme;'.
43 Page 44, line 33, at end insert:
(j) specify any authorised providers—

(i) who are to invest any prescribed voluntary contributions, or

(ii) who are to provide any prescribed additional benefits, and, if two or more authorised providers are so specified, may make provision entitling any person who makes prescribed payments by way of voluntary contributions to elect between those authorised providers.".'.

44 Page 44, line 43, leave out from 'Kingdom' to end of line 48.
45 Page 45, line 7, at end insert:
"'authorised provider", in relation to the investment of any sums paid by way of voluntary contributions or the provision of any benefit, means a person who is authorised under Chapter III of Part I of the Financial Services Act 1986 to invest those sums or, as the case may be, to provide that benefit;'.
46 Page 45, line 38, leave out 'or personal'.
47 Page 45, line 41, at end insert:
and, where a persons voluntary contributions are made by deduction from salary, any reference to payment of, or by way of, voluntary contributions shall be taken to include a reference to the making of voluntary contributions by deduction, or as the case may require, to any voluntary contributions so made.
(8) Without prejudice to subsections (3) (c) and (d) and (4A) (a), there may be paid out of money provided by the Parliament of the United Kingdom—

(a) any sums required for or in connection with the operation or administration of any prescribed voluntary contributions scheme; or

(b) any administrative expenses incurred under or by virtue of this section by a Minister of the Crown or government department.

(9) Any sums received under this section may be paid into the Consolidated Fund of the United Kingdom.'.
The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 22 to 47 en bloc. Schedule 3 makes minor and consequential amendments to the legislation governing the existing pensions arrangements for the judiciary. In particular it amends the Judicial Pensions Act 1981 to ensure that the provisions of that Act relating to additional voluntary contribution schemes (which have not yet been brought into force) are workable and can now be brought into force at the same time as the analogous provisions of this Bill. Amendments Nos. 22 to 47
1612
duplicate the amendments we have already agreed to Clause 10 of this Bill in respect of the existing pension arrangements.
Moved, That the House do agree with the Commons in their Amendments Nos. 22 to 47 en bloc.—(The Lord Chancellor.)
Baroness Mallalieu: My Lords, in supporting these amendments, I understand that if the Bill completes its final stages and receives Royal Assent, it is still unlikely that it will come into force before the end of 1993 because there would appear to be a great deal of work still to be done in relation to the regulations, much of it of an actuarial nature. In view of the welcome recent announcement by the noble and learned Lord the Lord Chancellor that there are likely to be further appointments to the High Court Bench in the near future, and which one hopes will take place before the end of 1993, it is clearly desirable that these provisions should be in force.
Perhaps I may add that, notwithstanding these amendments made in another place, many of us continue to have anxieties which were expressed by a number of noble and learned Lords at Second Reading of this Bill about the effects of certain of its provisions, in particular those in relation to recruitment and judicial staleness. We hope greatly that, notwithstanding these amendments, those fears will in time prove to be unfounded. We support the amendments.
Lord Renton: My Lords, I am glad to support these amendments. I have one minor query as regards two of them, and it is the same point in each. If noble Lords will look at Amendment No. 35, at the top of page 5, which is the new paragraph (11), it states:
"Any sums received under this section may be paid into the Consolidated Fund".
If we look at the final two lines of Amendment No. 47, we find the same provision. That puzzles me because either the sums have to be paid into the Consolidated Fund or not. If they are not paid into that fund, into which fund might they go?
The Lord Chancellor: My Lords, perhaps I may first say a word or two about the point raised by the noble Baroness, Lady Mallalieu. I am aware of the anxieties that were expressed. I have explained at some length our view of them. The provisions of Clause 10 and the amendments which have been made there, and also these amendments, are designed to deal with a situation which was brought to our attention; namely, the possibility that a person appointed to judicial office might not be able to take advantage, fully at least, of the retained benefits provision.
One of the reasons why the 1981 Act provision has not been brought into force is that the view of the Inland Revenue was that, by the nature of the judicial pension scheme, it was most unlikely that there would be any scope for additional contributions under that provision. In the course of discussions on this Bill, I was able to persuade the Inland Revenue that at least there might be some cases in which such a provision as this would be useful. In that situation the point which is dealt with in Clause 10 and subsequently, is an

1613
important addition to the reasons which were given at the very beginning of consideration of this Bill about what the situation was.
As regards the point on the Consolidated Fund, I believe that the reason for this provision is that sums under that section might be appropriately payable into either the Consolidated Fund or into the ordinary Vote Fund. It is necessary to have power to pay them into the Consolidated Fund. That is my understanding of the position, so the power is all that is required.
On Question, Motion agreed to.
COMMONS AMENDMENTS
48 Schedule 4, page 47, line 13, leave out 'and'.
49 Page 47, line 16, at end insert 'and
(d) for the purpose of determining, in the event of his death, the rate of any surviving spouse's or children's pension payable under sections 5 to 8 of that Act in respect of his service as Comptroller, as if references in those sections to the annual rate of the deceased's judicial pension were references—

(i) where a pension had commenced to be paid to him by virtue of subsection (5) above, to the appropriate annual rate of that pension; or

(ii) where no such pension had commenced to be paid to him, to the rate that would have been the appropriate annual rate of the pension payable to him by virtue of subsection (5) (b) above, had he not died, but been disabled by permanent infirmity for the performance of the duties of his office on and after the date of death;:

50 Page 47, line 19, leave out from 'sections' to end of line 20.
51 Page 50, line 19, leave out 'and'.
52 Page 50, line 22, at end insert 'and
(d) for the purpose of determining, in the event of his death, the rate of any surviving spouse's or children's pension payable under sections 5 to 8 of that Act in respect of his service as Commissioner, as if references in those sections to the annual rate of the deceased's judicial pension were references—

(i) where a pension had commenced to be paid to him by virtue of sub-paragraph (1) above, to the appropriate annual rate of that pension; or

(ii) where no such pension had commenced to be paid to him, to the rate that would have been the appropriate annual rate of the pension payable to him by virtue of sub-paragraph (1) (b) above, had he not died, but been disabled by permanent infirmity for the performance of the duties of his office on and after the date of death;'.

53 Page 50, line 25, leave out from 'sections' to '13' in line 26.
54 Page 53, line 15, leave out '107' and insert '91'.
55 Page 54, line 26, leave out 'and'.
56 Page 54, line 29, at end insert 'and
1614
(d) for the purpose of determining, in the event of his death, the rate of any surviving spouse's or children's pension payable under sections 5 to 8 of that Act in respect of his service as Comptroller and Auditor General, as if references in those sections to the annual rate of the deceased's judicial pension were references—

(i) where a pension had commenced to be paid to him by virtue of paragraph (4), to the appropriate annual rate of that pension; or

(ii) where no such pension had commenced to be paid to him, to the rate that would have been the appropriate annual rate of the pension payable to him by virtue of paragraph (4) (b), had he not died, but been disabled by permanent infirmity for the performance of the duties of his office on and after the date of death;'.

57 Page 54, line 32, leave out from 'sections' to '13' in line 33.
58 Page 57, line 26, leave out 'and'.
59 Page 57, line 29, at end insert 'and
(d) for the purpose of determining, in the event of his death, the rate of any surviving spouse's or children's pension payable under sections 5 to 8 of that Act in respect of his service as Commissioner, as if references in those sections to the annual rate of the deceased's judicial pension were references—

(i) where a pension had commenced to be paid to him by virtue of sub-paragraph (1), to the appropriate annual rate of that pension; or

(ii) where no such pension had commenced to be paid to him, to the rate that would have been the appropriate annual rate of the pension payable to him by virtue of sub-paragraph (1) (b), had he not died, but been disabled by permanent infirmity for the performance of the duties of his office on and after the date of death;.

60 Page 57, line 32, leave out from 'sections' to '13' in line 33.
The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 48 to 60 en bloc. These are purely technical amendments. Schedule 4 permits the Comptroller and Auditor General (and the other senior public investigative officers listed in Clause 25) to elect under certain circumstances to join the new pension arrangements. However, the schedule, as drafted, does not contain the definitions necessary to enable surviving spouses' and children's pensions in respect of those officers to be calculated. The amendments rectify this by inserting definitions of the annual rate of an officer's pension at four different places in the schedule. It is by reference to the annual rate of an officer's pension that his or her spouse's or children's pension will be calculated. Amendment No. 54 corrects a reference to the National Health Service (Scotland) Act 1978.
Moved, That the House do agree with the Commons in their Amendments Nos. 48 to 60 en bloc.—(The Lord Chancellor.)
On Question, Motion agreed to.
COMMONS AMENDMENT
61 Schedule 8, page 88, line 22, after 'effect),' insert in paragraph 3,'.
The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 61. This is a purely technical amendment which modifies a reference to the Administration of Justice Act 1973.
Moved, That the House do agree with the Commons in their Amendment No. 61.—(The Lord Chancellor.)
On Question, Motion agreed to.
COMMONS AMENDMENT
62 Page 89, line 21, leave out from 'words' to end of line 23 and insert "qualifying judicial office, within the meaning of the Judicial Pensions and Retirement Act 1993.".'.
The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 62. This is another minor technical amendment. Paragraph 15 of Schedule 8 is a consequential amendment to Section 93 of the Supreme Court Act 1981. That section identifies the persons who are eligible for a judicial pension. The existing amendment identifies those persons listed in Schedule 1 to this Bill as being eligible for a judicial pension. However, only those persons who hold offices listed in Schedule 1 on a salaried basis are to be eligible for a judicial pension under the new arrangements. Amendment No. 62, therefore, refines the existing amendment to Section 93 of the 1981 Act to refer to "qualifying judicial office", a term the use of which in this Bill is limited to salaried office holders who are eligible for a judicial pension.
Moved, That the House do agree with the Commons in their Amendment No. 62.—(The Lord Chancellor.)
On Question, Motion agreed to.

Child Support Appeals (Jurisdiction of Courts) Order 1993
7.28 p.m.
The Lord Chancellor The Lord Chancellor rose to move, That the draft order laid before the House on 8th March be approved [23rd Report from the Joint Committee].
The noble and learned Lord said: My Lords, the Motion before the House is one of a number of orders made under the Child Support Act 1991 which comes into force on 5th April this year for some purposes. It is made in accordance with powers conferred on my noble and learned friend the Lord Advocate and me by Section 45 of that Act. Those powers allow me to make provision for appeals or alternatively a certain class of appeals, to be dealt with in a particular way.
In general, an appeal against a review by a child support officer will be heard by a child support appeal tribunal. It is envisaged that the tribunals will be able to handle the majority of appeals quickly and
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efficiently. It is expected that they will soon develop expertise in this specialist area of work. However, a case which involves disputed parentage falls into a category of fundamental importance. In the circumstances, it is more appropriate that the matter is determined by a court. That is the policy of the main provisions of the Bill as it was enacted. However, in order to make absolutely sure that appeals raising this issue are dealt with in that way, the order has been proposed in draft to your Lordships.
Articles 3 to 5 provide accordingly for England and Wales, and for Scotland, both for appeals against reviews and for appeals against refusals of applications for reviews. As a consequence, Articles 6 and 7 make consequential amendments to Section 20(2) to (4) of the Act. Article 8 contains a consequential amendment to Section 8 of the Law Reform (Parent and Child) (Scotland) Act 1986, which contains a definition of "action of declarator".
My noble and learned friend the Lord Advocate concurs in seeking approval of the order in so far as it relates to Scotland. I commend it to the House.
Moved, That the draft order laid before the House on 8th March be approved [23rd Report from the Joint Committee]. —(The Lord Chancellor.)
Baroness Mallalieu: My Lords, the draft order has the support of this side of the House. While we believe that it is generally undesirable that questions of child support should be settled in the formal surroundings of a court in which some appellants may be inhibited by the prospect of appealing to a court of law, where the question at issue is a child's parentage the rights and liabilities at stake are sufficiently fundamental and important that we believe they justify an appeal to a court.
This order, which provides that an appeal under Section 20 of the 1991 Act shall be made to a court instead of to a child support tribunal in such cases, seems good sense and has our approval.
Lord Meston: My Lords, I thank the noble and learned Lord for his explanation of the order. Generally speaking, this House is alert to prevent or curtail powers allowing for the modification of primary legislation by orders or by other secondary legislation. However, since the noble and learned Lord, Lord Simon of Glaisdale, is not in his place, I suspect that the order is unobjectionable.
In this case, the power under Section 45 of the Act is used to move certain appeals from the tribunals to the courts. Without wanting to refight the battles of 1991 when the Act was a Bill, we feel that the move in this order from the tribunals to the courts is a move in the right direction. I suspect that in reality very few appeals will get that far. Modern DNA profiling techniques have taken most of the "fun" out of paternity disputes; but I suppose that there may be some arcane questions of parentage which may need to reach the court for guidance. I ask whether legal aid will be available for such appeals, subject of course to their merits being assessed.
Practitioners are now waiting for next month when the Act comes fully into operation. We are waiting with suspended judgment and with admirable (if

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rather costly) computer software. We have been provided by the department with excellent guidance booklets which reduce the ghastly formulae to something comprehensible. I seriously hope that those responsible for the "Plain English" awards will look at those booklets because, given the complexity of the legislation and the regulations, they are remarkably good.
I hope that the order is not to be the only use to be made of the courts instead of the tribunals. It seems to many of us that a fundamental problem in the working of the Act will be that of financial non-disclosure by parents whose finances are not straightforward. Practitioners know how difficult it can be to penetrate the underlying financial realities of self-employed people with skilfully drawn accounts or with no reliable accounts at all. They are often people who manage to show a healthy loss in their business accounts but who are unable to conceal a high standard of living. Frankly, we doubt how much time or expertise the agency will have to discover the realities of such cases. The family courts already have the expertise (as well as the powers) to obtain proper disclosure. I hope that that will not be altogether lost.
I venture to suggest that consideration should be given to the use of the courts for appeals where at least the ground of appeal is major non-disclosure of finances. The alternative is that appeals will go to the tribunals which, as I understand it, expect to be heavily burdened with appeals. Legal aid is not available. There is no power to award costs—only a power to award expenses out of public funds. There is no power to direct questionnaires, as I understand it —questionnaires being a common device in financial proceedings in the courts. It would be quite unreal to expect a partially-informed mother (in the typical case) to cross-examine a father as to his means.
Practitioners feel that dealing effectively with inadequate disclosures may well be a fundamental problem in the working of the Act. I suggest that there will be a category of appeals in such cases that should be allocated to the courts under this power. In so doing, the burden on the tribunals will be reduced in what would otherwise be inevitably long appeals. The tribunals themselves will be able to sustain the confidence to which they should expect to be entitled and they will have the ability to deal swiftly with other appeals.
Lord Renton: My Lords, although of Scottish ancestry the noble Lord, Lord Meston, has a much respected and successful practice in our Family Division in England. I agree with most of what he said.
Parliament has always been very jealous in taking upon itself the responsibility of deciding what jurisdiction each court and any statutory tribunal shall have. Until this matter arose, I did not know that powers had been taken under Scottish law for the courts in Scotland to come into the picture. Normally, I would have been alarmed at the prospect of primary legislation not being the method by which that is done. It is being done by secondary legislation. However, as the noble Lord, Lord Meston, said, to some extent this is a welcome move for the reasons which my noble and
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learned friend has given, and for other reasons which the noble Lord has given. Therefore, speaking for myself, I do not propose to divide the House on this order —to do so would be contrary to our custom, anyway. However, I do think that we should normally bear in mind that it is the responsibility of Parliament to decide the jurisdiction of every court and every tribunal.
The Lord Chancellor: My Lords, I am grateful for the support that my Motion has attracted from all of your Lordships who have spoken. For appeals to the court, legal aid will be available on the usual conditions to be effective after this Act comes into force.
On the point raised by the noble Lord, Lord Meston, the tribunal is given considerable powers. The important thing about the Child Support Agency is that it will have considerable investigative powers in relation to income. The noble Lord perhaps doubts the nature of the expertise available, but I am sure that that is something that can be developed, and your Lordships may take it that my noble and learned friend the Lord Advocate and I will wish to see how that develops. It is a new system, and one in which considerable emphasis is placed on obtaining the money. The noble Lord, Lord Meston, and others of your Lordships who practise in this field, will know that one of the complaints about the present system is that having obtained an order, it is not a great deal of use until one receives the money. Sometimes it is difficult to obtain the money.
I hope that the Child Support Agency will be effective in recovering money which a parent is obliged to pay. We have proposed this system in the light of the general policy of the Act itself. Parentage questions should be for the courts. I hope that the rest of the scheme will work as was expected when the Bill was being considered by your Lordships. However, I shall keep its working under review, especially with respect to the point of view to which the noble Lord, Lord Meston, has directed attention. I commend the order to the House.
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 eight o'clock.
Moved, accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 7.41 to 8 p.m.]

Trade Union Reform and Employment Rights Bill
House again in Committee on Clause 14.
Lord McCarthy Lord McCarthy moved Amendment No. 55:
Page 28, line 14, after ("withdraw") insert ("or renew").
The noble Lord said: This is a minor, tiny amendment that befits this time of night. Under the Bill the individual member must be informed with appropriate notice in writing of a proposed increase in subscriptions. He must agree to renew at the new rate

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and he must be told that he can withdraw from the check-off arrangement at that time or, as is stated in the Bill, "at any time".
Our amendment desires merely to establish a balance of information. We believe that the legislation should state not only that the member can withdraw but also that he can renew. It should state that he can withdraw at any time or renew at any time. It is a small balancing act. I beg to move.
Baroness Denton of Wakefield: I understand the argument put forward by the noble Lord but I suggest that the amendment is unnecessary. At the moment the law does not give an individual any right to withdraw from check-off arrangements except where he or she resigns his union membership. Clause 14 will provide individual trade union members with the right to withdraw from check-off at any time. There is no equivalent statutory right to pay union subscriptions by this method, nor have we any intention of introducing one. Check-off arrangements, quite rightly, are a matter of voluntary agreement. The amendment, therefore, serves no practical purpose. As no right to pay trade union subscriptions through the check-off exists it is a nonsense to remind people of a "right" to renew their consent.
The holding of an authorisation from a worker by an employer does not mean that the employer must operate check-off arrangements. Unless he has entered into a contract to the contrary the employer remains free to withdraw check-off arrangements at any time. If a renewed authority were to be submitted to an employer it would no more place any obligation on the employer to continue operating check-off arrangements than an existing authority. I hope, therefore, that the noble Lord will not press the amendment.
Lord McCarthy: I find it difficult to follow the argument. Perhaps it would help if we did not use the word "renew" but used the word "continue". Surely that would be a statement of the fact that the individual member could withdraw or continue. It would be a description of the situation that existed. The Minister has become involved in whether there is a right to renew or withdraw. Surely there must be a right to continue, so would the Government feel any different if we were to use such a word?
Baroness Denton of Wakefield: It would not change the issue. It would not place an obligation on an employer to continue to operate the check-off arrangements. It would be misleading because there is no statutory obligation on the employer.
Lord McCarthy: I still do not understand. What is the statutory obligation on which the employer leans in order to continue? If the member receives a notice informing him that he can withdraw but he does not do so, the check-off continues. Presumably that is perfectly lawful so why cannot they be told that it is lawful to continue?
Baroness Denton of Wakefield: I am saying that the right to withdraw is the privilege of the individual. The arrangement with the employer and the union on check-off is voluntary.
Baroness Turner of Camden: I do not understand. Surely the individual has the right to renew or not to renew. He is simply told that he has that right. I cannot understand why the Minister should believe that it is not voluntary because he is given the opportunity to renew or not to renew.
Baroness Denton of Wakefield: I am sorry if my reply is not clear. I am trying to explain that because the right of the employer to participate in check-off is voluntary were he to offer the right to renew or to continue the employer could make a decision separate to that.
Lord Wedderburn of Charlton: Would not my noble friends help the Government more if they said that when the worker is told that he can withdraw rather than renew or withdraw he is more likely to withdraw?
Baroness Denton of Wakefield: I appreciate the noble Lord's attempt to be helpful. Again I stress that that arrangement is with the individual.
Lord McCarthy: Would the Minister allow us to state that the individual member could decide to withdraw or not to withdraw? Would that be acceptable?
Baroness Denton of Wakefield: We would not think that that brought anything to the clause.
Lord McCarthy: All the same, we shall try to bring it to the clause on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 56 to 59 not moved.]
On Question, Whether Clause 14 shall stand part of the Bill?
Baroness Turner of Camden: I wish to put a few remarks on the record. In my view the clause is totally unnecessary and quite vindictive. It requires that no deduction should be made from pay for the purpose of union subscriptions without individual written authorisation. No one disagrees with that. As I said on Second Reading, my own union operates check-off arrangements with employers and has always done so on the basis of signed individual authorisation from members. Even so, there are members who would prefer not to have their subscriptions deducted in that way. Usually the reasons is that they do not want the employer to know that they are union members. Arrangements are then made for them to pay direct to the union. That is in order and I was surprised to learn tonight that the noble Baroness, Lady Denton, believes that if an individual opts out of check-off he or she automatically opts out of union membership. That is not my experience.
Check-off arrangements have developed on the basis that they would be of benefit to both employers and the unions. Employers did not want people going around collecting subscriptions and unions welcomed

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the opportunity to be relieved of the administrative problems of keeping tabs on collectors and finding new collectors when others gave up.
We have absolutely no objection at all to securing written individual authorisations. What is so outrageous about the proposition contained in the Bill is that there must be a three-yearly check. I see no reason—this has been said by my noble friends in debate—why that should be done for trade union subscriptions and not for other deductions such as deductions for charities or welfare facilities which are quite common in some establishments.
The Government seem to believe that there is some kind of individual right here. I must say that it does not seem to be perceived as that by individual union members. I recently received an extremely irate letter from a NALGO member who was querying that provision in the Bill. He said that he pays to a number of other organisations—charities and a welfare club —through check-off and he queried, as I have done, why the Government have decided to interfere in the arrangements that he had made with his union and his employer. It is clear that he does not regard this as being provided with an extra right. He believes that the Government are interfering with his right to make an on-going arrangement to have the deductions made.
There is an apparent requirement hidden away in the schedule, to which we shall come later, which appears to stipulate that unions and employers have one year from the passage of the Bill to collect fresh authorisations and they have to do that again three years later. That is quite an horrendous requirement. There are about 6.5 million employees currently paying by check-off from whom authorisations will have to be obtained, even if they have only recently given them. It is no wonder that employers are unhappy about this proposition. Why are the Government doing this? Nothing that the noble Baroness has said this evening convinces me that there is a justifiable case for it.
There seems to be nothing in the way of defalcations, fraud or legal cases that have led them to that conclusion. Indeed, the cases quoted by the noble Baroness were all cases which would occur even with the three-year check-off because as far as I can see, fraud was committed by individual employers.
I can only hope that if the Government persist with this and it reaches the statute book as they intend, it will have the reverse effect from that which they desire. I can well remember legislation about the political fund and the requirement that all unions should ballot their members on whether or not they should have a political fund. The media gurus prophesied that my own union would almost certainly lose its political fund. It was believed that our members would vote almost unanimously against having a political fund. Instead, the union had perforce to campaign to keep its fund and did so very successfully. Not only did the ballot go overwhelmingly in favour of keeping the fund, but we ended up with more people paying the political levy than we had had previously.
The Government underestimate the degree to which their constant sniping at unions is resented. It
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may well be that as a result of this legislation, if it becomes effective, the result will be to increase union membership rather than the reverse because the unions will have to campaign to ensure that their members maintain check-off. That is not what the Government intend but it would be a just outcome. However, that is speculation. As it stands, the clause is unnecessary. It is an administrative burden on employers and unions alike. No case has been made out for it and I do not think that it should stand part of the Bill.
8.15 p.m.
Baroness Denton of Wakefield: The provisions of Clause 14 have been discussed at some length. The main issues have already been fully aired and I do not therefore intend to delay your Lordships' consideration of other important clauses in the Bill by simply repeating the many arguments that we have already heard.
This clause will ensure that all employees enjoy, as a legal right, the protection which many employees already enjoy as a matter of good practice. It will also give individual trade union members the legal right to withdraw from check-off arrangements at any time without resigning their union membership.
The clause further provides that individual consent to check-off must be reaffirmed at intervals not exceeding three years. It has been argued that such a provision is unnecessary. I do not accept those arguments.
Taken as a whole the provisions of Clause 14 will provide individual trade union members with valuable new rights and will provide a remedy if these rights are not upheld. I urge the Committee to support the Motion that this clause stand part of the Bill.
Baroness Turner of Camden: It is not my intention to press this matter to a vote. Therefore, we shall not press our opposition to a Division. On the other hand, I am grateful to have had the opportunity to place on record the Opposition's grave anxieties about this clause. I have no doubt that we shall return to the matter with other amendments on Report.
On Question, Clause 14 agreed to.
Clause 15 [Extension of right not to be unjustifiably disciplined]:
Baroness Turner of Camden Baroness Turner of Camden moved Amendment No. 60:
Page 30, line 18, at end insert ("provided that the activities so undertaken could not be held to be damaging to the best interests of the union and its members." ").
The noble Baroness said: This amendment is intended to insert into the Bill a provision that an individual could be dealt with under disciplinary rules if the activities undertaken by the individual were damaging to the best interests of the union and its members.
I read carefully the Committee stage proceedings in the other place. It seemed to be accepted by the Government that if an individual undertook an activity which was really damaging to the union, he could be dealt with under disciplinary rules. There are instances of individuals deliberately infiltrating trade

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unions in order to be as damaging as possible. There are even organisations specialising in such activities. Sometimes they will provide funding and general support for such people.
In the Commons it was asked whether, if it could be shown that an individual had joined a union simply to undermine it and if it could be proved that that is what was done, that would be grounds for disciplinary action, even expulsion. The Minister's reply on behalf of the Government on that occasion was in the affirmative.
There are instances which arise when individuals —and we know this happens—are found to be guilty of racial or sexual harassment of other members. I have already raised that briefly in our discussions on earlier amendments. Surely if the union continues to countenance that kind of activity on the part of individual members without doing anything about it, it is clearly damaging to the general interests of the members and places the union in an entirely wrong and very bad light.
There should be provision in the Bill for that kind of action to be dealt with under disciplinary procedures. That is what Amendment No. 60 provides. We are seeking to write into the Bill what we understand has already been conceded by the Government in the other place as being correct and proper use of union disciplinary rules. I beg to move.
Viscount Ullswater: I am grateful to the noble Baroness for explaining the purpose of the amendment but I find it unacceptable because I believe that it undermines the provision in the clause which it seeks to amend.
The Government have introduced many reforms aimed at improving and enhancing the rights of ordinary trade union members. Some of these rights enable the individual member to require certain action of his union; for example, he is entitled to a copy of the scrutineer's report on a union ballot on request; under the new provisions in Clause 9, he may request an additional copy of the statement of the union's financial affairs.
It is important that the individual can exercise any such rights free from the threat of union discipline for so doing. New paragraph (j) of this clause ensures that the individual has this protection.
The amendment proposes that such protection will not apply when the statutory obligation which the union is required to fulfil is against the best interests of the union and its members. How can a statutory requirement be against the interests of those whom it is designed to protect? We surely cannot introduce rights to protect the interests of union members and then allow their ability to exercise those rights to be undermined by the fear that they may be disciplined if they do.
It may be that the concerns underlying this amendment are the same as those expressed in Committee in another place: that is, that the provisions will protect a union member whose conduct genuinely is against the interests of the union; for example, if an individual joins a union and then proceeds to attempt to undermine its members from
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the inside, possibly with the intention of persuading them to join another union of which he is also a member. Concern was expressed that the union might be prevented from disciplining him because of paragraph (g), which prevents discipline on the ground of membership of another union.
Let me reassure the Committee on this point. In that example the conduct is certainly not mere union membership, and is therefore not covered by that subsection. Similarly, any other conduct that is not covered specifically by the other unjustifiable provisions may lawfully be invoked by a union wishing to apply its disciplinary procedures. I hope that will reassure the noble Baroness and that she will be persuaded to withdraw the amendment.
Lord Stoddart of Swindon: I really must spend a couple of minutes on this amendment, which I support. Just exactly what sort of people do the Government think trade unionists are? This clause seeks to show trade unionists as thugs and bullies and as people who intimidate their colleagues at work and elsewhere when the opposite is the truth. People join trade unions in order that they can work together for their common good. In my experience the sort of people who are being legislated for in this clause simply do not exist.
I cannot understand why the Government have to regulate voluntary organisations—that is what these organisations are—in such a tight way. In any event, if any trade unionist behaved in the way that is being suggested in this clause he could be guilty of criminal offences. He could be guilty of conspiracy, intimidation and of a host of offences. Why on earth must we have special regulations and special statutes to regulate the activities of people who simply work together to protect their own interests? The trade union movement which the Government have in mind exists only in their own imagination and not in practice.
Viscount Ullswater: Section 65 of the 1992 Act has proved to be useful because it provides for members of trade unions not to be unjustifiably disciplined. This clause adds another few measures to the provisions of Section 65. They are quite justifiable.
Lord Stoddart of Swindon: That is precisely what I am saying. Various Acts have placed further burdens on trade unions and have regulated them as no other voluntary organisation is regulated. Here we have five further regulations to govern their conduct. In virtually every case that I know of, the conduct of trade unions has been reasonable and often exemplary.
Baroness Turner of Camden: I welcome the assurances given by the Minister that the type of activity to which I referred when moving the amendment will be regarded as the type of activity which could be dealt with under the disciplinary rules of unions. If I may say so, that is similar to the kind of assurances that were given in another place, and I welcome them. I have tabled the amendment because although we welcome the Government's assurances, given here and in another place, they are not in the

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Bill. It is because they are not in the Bill, and therefore it could be assumed that certain types of activity would not be capable of being dealt with through disciplinary rules, that we decided to table this amendment.
There is, of course, no point in pressing the amendment at this late hour in the Committee proceedings this evening. While I welcome the assurance we have been given, I would feel happier if there were an assurance on the face of the Bill so that unions would be aware that in the kind of cases I have mentioned they were free to utilise their disciplinary procedures. However, having said that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 61:
Page 30, line 18, at end insert:
("(1A) After subsection (2) of section 65, there shall be inserted—
"(2A) Paragraphs (a) and (b) shall not apply where the strike or other industrial action complies with section 219 to 235 of this Act.".").
The noble Lord said: I am moving this amendment for one reason—to have the Government's response to it on the record. We are discussing the position where a union may not use its lawful rules in order to discipline a member who opposed and refused to conform to the decision taken within the union on a strike which was completely lawful and complied with Sections 219 to 235 of the legislation. I seek to ascertain that in that situation the union would have the right to operate its rules without the threat of actions for compensation.
I know we have discussed this matter on previous occasions and in a sense it reappears in the next amendment. I wish to comment on two matters that the Minister has just referred to as they are relevant to the amendment. First, he said that Section 65 has proved useful in many cases. Will he mention those cases? Secondly—this is the case with all Members of the Government—he took the matter out of the realm of fact or history when he asked how statutory provisions can be against the interests of the members. I hope I have written down his words correctly. With great respect to the Minister, I must inform him that those are the words of Big Brother. I am sure the Minister will not like being referred to in that way. It is claimed that once a provision is enshrined in statute it cannot be against the interests of members. That is the philosophy of Section 65. To extend that philosophy is a serious matter.
In moving this amendment I seek to ensure that a union that is taking action within its lawful rules in the area of lawful strikes or industrial action may be permitted to operate those rules to the full and will not be under the threat of the provisions of Section 65. I beg to move.
Viscount Ullswater: It seems to me that the Opposition sometimes appear to claim that they accept many of this Government's reforms of industrial relations and trade union law that have been passed since 1979, but amendments such as this
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confirm that they remain steadfast in their resistance to some of the important rights and protections which we have given trade union members.
In simple terms, this amendment seeks to restore the unions' freedom to discipline, with impunity, members who decide that they wish to honour their contract of employment and not take part in industrial action. In direct terms, unions are to have some of the freedom they enjoyed before our Employment Act 1988 so that they can, once again, have a free hand to force individual members who would otherwise prefer to keep working, or to cross picket lines, not to do so. As such, we find it unacceptable.
Baroness Seear: I am sorry to interrupt the Minister. I realise that, in a way, we are going back in history, but he refuses to allow the unions the right to discipline members who continue to work after strike action, that action having been taken after a legally required and legally applied ballot. If the result of the ballot is a decision not to strike, I take it the Government would be only too pleased if the unions disciplined people who did strike. If the Minister accepts that, how can he possibly deny that unions should also have the right to discipline people who, when the ballot is in favour of a strike, refuse to go on strike? The Minister cannot have it both ways.
Viscount Ullswater: This is what one might call a triangular argument. The employer and employee have a contract between them. The trade union is provoking the breaking of that contract. If it does so in an organised way the union can have immunity from the law. What we are doing and what we have done is to make certain that those who wish to honour their contract can continue to do so. Those who, having taken steps, quite properly, wish to indulge in some industrial action then they effectively break their contract. That is the state of the law at present.
8.30 p.m.
Lord McCarthy: Will the noble Viscount admit, at half past eight at night, that, because of what he has just said, so far as concerns the individual worker in this country there is no right to strike and the penalty for striking is dismissal on the basis of breach of contract? Is that the position?
Viscount Ullswater: I did not go as far as to say that. The noble Lord puts into my mouth words that I did not say. However, the individual employee certainly has the opportunity to honour his contract and of not being unjustifiably disciplined by his union. That is what we are talking about with the amendment.
Baroness Seear: Then what is the point of allowing a ballot in any case because the Government will say that the result of the ballot can only be applied if the action is in line with what the Government want and not what the ballot has shown?
Viscount Ullswater: I am not certain that I can follow that argument of the noble Baroness. As I said, we regard it as unjustifiable for a union to impose a disciplinary penalty on a member who has decided

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that he would rather honour his contract of employment and continue to work or to cross a picket line rather than take part in industrial action. It is neither here nor there why the individual has reached such a decision. The point is that he should be free to do so without the fear that he could be left defenceless if his union tries to coerce him into joining the action or refusing to cross a picket line by imposing some form of penalty upon him.
The amendment is also unacceptable because it introduces what would be both a novel and unfortunate confusion between the law which can protect the organiser of industrial action and the situation of the individual who takes part in such action.
A worker who takes industrial action chooses to break his contract of employment, or otherwise seeks to bring pressure to bear on his employer. Our law gives all employees complete freedom to take such action. To some extent the law constrains an employer's freedom to respond but it leaves him with sufficient means to do so. That is as it should be.
The amendment would mean that where a union had the protection of the statutory immunities for organising industrial action it would also have complete freedom to discipline members who did not want to take part in the action. That is so much the better for the unions but so much the worse for those individual members. The members may feel that in the particular circumstances they wish to honour their obligations to their employer, or they may feel that they do not wish to risk the loss of pay or even dismissal which could follow from their taking part in the action. The amendment, if accepted, would put them back in the situation which applied before 1988. It would leave them at the mercy of disciplinary action by their union, designed to punish them for being loyal to their employer, or to their own best interests as they see them.
I expect that the noble Lord will not accept my argument. I hope, however, that he will appreciate that on this matter our policy is clear and that he will withdraw the amendment.
Lord Wedderburn of Charlton: I am grateful to the Minister. It is not so much his argument that I find displeasing as his grounds for it, especially the factual grounds. For example, we shall come later to the question of breach of contract in industrial action. I merely say now that we are in a massive minority among labour law systems in advanced countries in regarding the worker who leaves his employment in lawful industrial action as breaking his contract. I hesitate to say it, but I feel that the Minister has not been well advised on this matter.
Simply to repeat English common law, on the basis of what was said in 1825 or thereabouts, which still says that the worker who leaves his post on any occasion whatever without permission is in breach of contract, even a lawful strike, is labour law of an antiquarian character. We shall debate that issue later. That argument reveals that, if the individual employee is not protected in some way—and I believe that one
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of the best ways is to act collectively through a trade union—very often he is in a position in which he lacks power in making what we lawyers call a contract.
It is no good referring to what individual contracts say. We are concerned with the justice of the position. It seems totally unjust. I suggest that my noble friends use the phrase "the majority of members" instead of "union" because that is the issue. The majority have used all the devices that legislation puts before them, leapt across all the hurdles with ballots and have ensured that their rules are lawful. The Minister does not seem to understand that the clause does not make the rules unlawful. The Government dare not do that, for various reasons. The clause simply imposes compensation if unions apply what the Government regard as terrible and unjustified discipline.
The union can look at its rules and ensure that they are lawful. It can do everything that is required of it in calling a strike. One of the rules may say that if someone continues to object to union policy, which is lawful, for a specified period a penalty can be imposed. Every association in the world does so. The Government, however, say that that cannot be the case because the employee may have to cross a picket line, even though the picket line is lawful. The individual is perfectly free not to strike, just as the union is free to say that the majority of its members no longer wish to associate with that individual member.
I repeat that Lord Diplock, in an appeal case in 1983, said that freedom of association must be mutual. Lord Diplock was no Bolshevik, but he saw very clearly the character of freedom of association, which the Government are now infringing at every turn.
We shall return to these matters, but it is worth getting the Government's reply on paper each time. I know that it will not change, but let us say for once just what the position is instead of sometimes, as in the past, passing over some of the measures that the Government have placed on the statute book. To reject the amendment is a very serious step which one day the Government may regret. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 15 agreed to.
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 62:
After Clause 15, insert the following new clause:
("Annual report
.The Secretary of State shall publish an annual report setting out the reports or other documents relevant to the law relating to freedom of association and other provisions affecting trade unions in the United Kingdom published by bodies whose international instruments the United Kingdom has adopted or ratified, including the Council of Europe and the International Labour Organisation, together with the United Kingdom's replies to such documents or bodies.").
The noble Lord said: The amendment covers similar ground to the previous amendment. I shall not try to put forward propositions which would find agreement from the Minister about where we stand in respect of each of the important international instruments in the world of labour relations. I took it earlier that the Minister agrees that they are important.
Primarily, those instruments are the Council of Europe Social Charter of 1961 and the ILO conventions, especially Conventions 87 and 98. I leave aside European Community sources because I do not believe that they fall into the same category.
This may be a point which is common ground. One of the reasons why students and others study international instruments of the kind I have described less in this country is that those international instruments, such as the ILO conventions, do not enter into our laws, even theoretically, merely on being ratified. They enter into our law only if we pass a statute admitting them to the positive rubrics. It is perhaps for that reason, and because in most continental jurisdictions when the conventions are ratified they automatically enter, at least theoretically and often more than theoretically, into local law, that we are regarded as very odd in that respect. Perhaps that is one of the reasons why people have not studied the ILO conventions, the Council of Europe documents and other similar documents sufficiently in the past.
The position has begun to change in the past five to 10 years. There has been a growing interest in those documents, partly because many people, including many Members of this Chamber, have taken a special interest in the European Convention on Human Rights which, in Article 11, deals with the right of association. Whereas the European Convention on Human Rights is angled towards individual rights, understandably the Council of Europe social charter is angled towards collective rights; and similarly so is the ILO.
The clause provides that the Government publish a document, perhaps annually or at whatever suitable period, outlining where we stand. The Government cannot have much objection to doing that because they have to do so for the Commission in the Community. The Government published their first contribution in the recent document, No. 511, for the Commission setting out how we were progressing a year after the Social Charter of the Community. However, I do not speak on that today. The document would be a parallel type of document stating our progress in respect of international standards. It does not commit the Government to anything. It saves a little time by setting out the arguments and indicating where we stand.
I give one example. Today we have already today encountered a difficulty. I am aware that the Government have already put forward replies after the 1992 report to the committee of experts. I am also aware that the current practice of the United Kingdom Government and experts is not to publish them until the experts publish their report. I apprehend that that is not true of all governments and that experts are willing to have some parts published previously.
Taking that example, I should like to have before us a document which indicates in a couple of pages the arguments between the Government and the experts on Section 65 of the 1992 legislation. It would save time. I do not seek to pull a fast one on the
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Government. That procedure would test the arguments both ways. It would be useful to have the material before us. At present that is not always the case.
I believe that such a publication would contribute to a greater transparency and publicity for those international instruments which are of considerable importance in the world in which we live when the position of large numbers of working people is less secure than it has ever been, more difficult and more deserving of fundamental human rights, of which those documents from the European conventions through to the ILO comprise. I beg to move.
Baroness Turner of Camden: I rise to support the amendment which requires the Secretary of State to publish an annual report setting out reports or other documents affecting workers and unions in the UK, published by the ILO and the Council of Europe.
Plainly it is an excellent idea. On this side of the Chamber we have often claimed—I believe that we are right —that the Government are in breach, at least in spirit, of ILO conventions. My noble friend thinks that they go beyond that; I am sure he is right about that, too. The Government may insist that that is not so even though the ILO committee of experts has condemned the UK's legislation on at least nine counts to my knowledge as being in breach of ILO Convention 87 which gives the right to organise and for unions to draw up their own rules and constitutions free of state interference. The convention also includes the right to take industrial action. The UK has ratified the convention.
It would be useful for Parliament to know what the ILO thinks about legislation introduced on industrial relations. I see no reason why an annual report should not be made. Why should not people, in particular Parliament, know about ILO conventions and about the ILO's reaction to industrial relations legislation in this country? Unfortunately, very little publicity is given to ILO declarations and very few people know about the rights which are enshrined in those conventions. There has to be a level of parliamentary accountability in that area. For those reasons, I support the amendment.
8.45 p.m.
Viscount Ullswater: I have listened with interest to the points which the noble Lord and the noble Baroness have put forward on the amendments. However, as they will anticipate, I believe the amendment to be unnecessary.
The amendment would add a new clause to the Bill requiring that the Secretary of State publish an annual report setting out the reports or other documents on all provisions affecting trade unions in this country. That means not just on the law relating to freedom of association, but on all provisions affecting trade unions which issue from such international bodies as the ILO and Council of Europe, whose instruments the UK Government have ratified or adopted, together with the UK Government's replies to those reports or other documents.

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Perhaps I may begin by once again refuting the noble Lord's allegations that the Government's legislation somehow represents an erosion of rights in this country. On the contrary our previous legislation, and the Bill now before us, is all about reinforcing rights and protections: the rights and protections of working people, of individual trade union members, of members of the public, of employers.
We are not doing anything underhand in this. The Government have proceeded openly, in full public view, and the electorate's verdict on term after successive term reflects the wide degree of support that its policies on those matters command.
Secondly, I should make clear that the Government entirely recognise the importance of our international commitments. I can assure the noble Lord that we do take very seriously indeed the obligations we have entered into under ILO conventions which we have ratified and articles of the European social charter which we have adopted. But unlike the noble Baroness, Lady Turner, we firmly believe that nothing in its legislation or practice deviates in any way from our commitments under those instruments. We consider every instrument scrupulously before we ratify or adopt it, so that we can be quite sure we are wholly in compliance. We set the highest store by the rule of law at national and international level and are always at pains to comply with all the requirements of international bodies.
Quite contrary to the impression given by the noble Lord, the ILO has not "condemned" us for having legislation which provides remedies for union members who are subject to unjustifiable discipline by their union or which allows employers to respond to those who choose to take industrial action against them. Where ILO committees, such as the committee of experts or the committee on freedom of association, have made observations on aspects of UK law, the Government have always responded.
Similarly where the committee of experts of the Council of Europe has reached a negative conclusion on UK compliance with a particular provision of the European social charter the UK has always responded, and we will continue to do so through the appropriate channels, and to maintain a dialogue on all relevant issues included in the area of freedom of association and other provisions affecting trade unions to which the amendment refers.
However the amendment is simply unnecessary. It is unnecessary because all the material in question is already in the public domain. The reports of the committees of experts of the ILO and the Council of Europe, which comment on the UK's and other member states' application of relevant ILO conventions and of relevant provisions of the Council of Europe social charter, are published annually and made widely available. Similarly the UK's replies to these, which respond to any criticisms raised, are automatically copied to the CBI and TUC who are free in turn to copy them to anyone else they choose.
Once they have been considered by those international bodies, the Government's comments are moreover fully reflected in the bodies' conclusions
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which are also published and made widely available. Similar procedures apply with other ILO reports where trade union matters are covered, in particular the report of the ILO committee on freedom of association, which is published three times a year. Its conclusions on all cases considered take full account of comments received from governments and their social partners, including, where a UK case is involved, any comments from this Government and from the TUC and CBI.
Perhaps by way of a practical example of the fact that there is no real difficulty about obtaining access to the reports and other documents to which the amendment relates, I can tell the noble Lord, Lord Wedderburn, that recently I read an article in the Industrial Law Journal, the December 1992 issue, vol. 21, No. 4. It was entitled, "UK Employment Law and the ILO: the Spirit of Co-operation?" The first article in the journal was by the noble Lord, Lord Wedderburn, entitled "Inderogability, Collective Agreements and Community Law". I cannot say that I studied it as fully as I should have done.
I am indicating by this that the articles referred freely to exchanges of views between the ILO committee of experts and the UK Government. At no point did the authors indicate that they had had any trouble obtaining the documentation to which they referred. I believe that they cited the ILO library in London as the source of the documentation.
In short, all the information which would be covered by the amendment is already in the public domain for anyone who is interested. There is simply no need to publish a report of the kind that the noble Lord has in mind. I believe also that it would perhaps not be the best application of public funds and I ask the noble Lord to withdraw the amendment.
Lord McCarthy: Before the noble Viscount sits down, would he define what he means by "respond"? The Minister has used the word quite a lot today—the Government "respond"; the ILO committee of experts criticises, suggests and proposes that something should be done about GCHQ; about the cancellation of recognition for the teachers' unions; that something should be done about the legislation which denies trade union sanctions and disciplines. The Government respond. When the Government respond, does that mean that they write a letter and do nothing?
Viscount Ullswater: The Government make a full response to the points put forward by the ILO or under the European social charter.
Baroness Turner of Camden: Have the Government ever changed their view on anything because of a view received from the ILO committee of experts or any ILO committee? Or have they persisted with their original view? Has their view been changed as a result of ILO intervention?
Viscount Ullswater: I am quite certain that the comments made by the ILO are taken into consideration.
Lord Wedderburn of Charlton: In winding up on the amendment, I must reply to one or two points made by the Minister, quite apart from urging him to read the Industrial Law Journal more carefully and more often.
I shall complain that he did me less than justice. In moving the amendment, I did not rehearse the argument—which is correct—that the Government are eroding rights, and so on. I said that it was a matter for debate on other amendments—at least, I hope I did. If I did not, then I do so now.
I am concerned about the diffusion of material. First, the authors of the ILJ article certainly had access to more than merely public matter. That is obvious when one reads the article. Secondly, the Minister said that the matters are in the public domain. We are concerned with the United Kingdom's replies to the committee of experts and the committee of experts' replies to the United Kingdom which some people in the Government have in the recent past alleged are confidential. The Minister says that they are not because they are sent to the CBI and the TUC. That is not good enough for me, I am neither the CBI nor the TUC and it is the view of people who receive the material that they are a little anxious about using it as though it were public. I do not wish to cost public funds too much; but will the Minister put all the material which he sends to the TUC and the CBI in the Library? That is the first request.
That would not be unnecessary because all kinds of curious misunderstandings arise on the matter and it is time they were cleared up. For example, the Minister says that we have never been condemned by the ILO. It is true that most of the material I know is in observations of the committee of experts. I have described who the committee of experts are. Therefore they are not to be brushed aside. When the committee of experts, five years running, repeatedly every year comes to the same conclusion in regard to our position in the United Kingdom, one would think that it was important in terms of the ILO.
However, with great respect to the Minister, I submit that he is also wrong in this area. I take this one, although there are others. For example, enough has gone on about GCHQ, as everyone knows, for the Government to be condemned there. If one looks at the decision in the case of the National Union of Seamen—I believe Case 1540, but the reference number is not with me—it was approved by the governing body, having been passed in the Committee on freedom of association of the ILO on 27th February 1991. One cannot go higher than the governing body which accepted the decision of the Committee on freedom of association.
There are other instances. I can understand the Government at the beginning of the saga with the ILO resting on what seemed to be the best bet; namely, that we have not been formally condemned by the International Labour Organisation. Everyone knows that the United Kingdom sent people out to Geneva pleading with people not to vote for resolutions which would do what is called a "paragraph" on the United Kingdom. If a country has a special paragraph then it
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is finally condemned; and I am sure we are to be condemned in that way in the near future. It is true that we have not had a paragraph; but there are many other matters on which ILO bodies of great distinction and experience have said: "In these four or five ways at least, United Kingdom legislation stands below the level of the minimum international standards which the United Kingdom itself has ratified". I was not going to go into that but the Minister provoked me. However, we can put it aside for the moment.
In withdrawing the amendment, I wish to ask the Minister a question, and he may wish to consider the matter for a later stage if that is possible. I ask him to put all the material he describes, as it emerges—at any rate once a year—in the Library so that we can see it. Then there will be no more question about what is secret and what is not. With that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 16 [Requirement of postal ballot]:
The Deputy Chairman of Committees (The Viscount of Oxfuird): I must advise the Committee that if Amendment No. 63 is agreed to, I cannot call Amendment No. 64 due to pre-emption.
Baroness Turner of Camden Baroness Turner of Camden had given notice of her intention to move Amendment No. 63:
Page 30, line 31, leave out from ("address") to end of line 32 and insert:
("or
(c) have the opportunity to vote in secret at his place of work under the supervision of the scrutineers.").
The noble Baroness said: I shall not move this amendment in favour of Amendment No. 64.
[Amendment No. 63 not moved.]
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 64:
Page 30, line 32, leave out ("by post") and insert:
("either—

(i) by post, or

(ii) immediately before or immediately after his working hours at or near his place of work or at a place more convenient for him, in a secret ballot under conditions which comply with a Code of Practice to be issued by ACAS under section 199 of this Act.").

The noble Lord said: This amendment is also known territory which raises not so much the issue of strikes and industrial action as the general question of postal ballots and workplace ballots, to put it simply.
The proposal of the amendment is that there should be an option for a union which decides to consult members about industrial action through a workplace ballot. However, I hope that no one will overlook the fact that the amendment requires a code of practice from ACAS on which I would place considerable importance after the experience we have had in the past decade or more.
In other words, the vote should be either by post exclusively, as the Government wish or, in the case of the union which selected it, in accord with the code of practice from ACAS, it should be at a convenient and sensible place at or near the place of work and before or immediately after the employees' working hours. I

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take it that that is a formula which may be improved upon, but it is the kind of proposal we have had before in legislation.
The issue is: what are we trying to do when we have a ballot on industrial action? I have often asked myself: is there one simple rationale about ballots? There certainly was none about the ballots the Government have had on the closed shop, for example. What are they for? Are they there to give democratic validation? Are they there, not for the purpose of legitimacy but to ensure that there is knowledge and approval, which is different, on the part of members?
I take it that when it comes to industrial action, a high imperative is the demand that there shall be the highest possible participation. I take my stand again on the inquiries which have been made into the problems of postal ballots and workplace ballots. I rely especially upon the evidence of 1984 in the work by Undy and Martin which has been quoted in debates in another place and here often enough.
I suggest that the position is this: whereas no doubt we can be marginally more sure of certain matters going right and not going wrong with postal ballots —although, as Undy and Martin say, and as everyone knows, we can have postal balloting papers which go astray—it may be that there is a bit of a margin with postal ballots. The margin in respect of the rate of participation is clearly in the direction of workplace ballots. The need to have high participation is what determines me in asking for an option. I do not just allow an ordinary option in the amendment. I say that ACAS will have a role to deal with such problems as there may be in terms of how the ballot is arranged. For example, I can imagine that ACAS has certain situations in mind in wanting ballot papers to be sent out by post—that is, if we still have a post—or by whatever private means supplants the post. There will be many possibilities and one must be flexible. But I would have thought that the need for high participation was a matter on which the Government and Members on this side were at one.
In terms of what can go wrong, if one looks at the experience of the CROTUM in the first three years of the office of the commissioner, we find that there are very few complaints on balloting, postal or otherwise. Of those few complaints, which come through 137 formal applications for assistance, we find that only eight of the cases were taken up. In three of them assistance was refused; in one the applicant withdrew; in one the High Court rejected the complaint; in two the complaint fell away and there was no industrial action; and in one the High Court awarded an order with costs. That is the officer that the Government set up to look into such matters and to seek out all the injustices which individual members of the unions may present. We know that she has used part of her budget to advertise; that she is there; and that she has a certain number of inquiries. Indeed, during the three years up to 1992, 959 people made inquiries to the CROTUM's office. And yet only one High Court order was made.
I suggest that the evidence is such that one can go straight to the issue if there is a clear advantage on participation rates. More members will vote and express their views. If one has a ballot, that is surely what one wants. And they will express their views properly and without coercion or anything of that kind.
I hope that the Government will not go on using the language which they sometimes use on these matters. Sometimes they speak about this or that practice as being something where all sorts of terrible coercion can go on. But terrible coercion can go on anywhere—except in this House. It is evidence that we need. I put it to the Minister that the CROTUM's three annual reports are very strong and serious evidence that the situation is not full of that kind of thing.
The other argument used by the Government—I anticipate the Minister in case he uses it again—is that all ballots should be completed at home. I am not sure that I follow that argument. It is commonly argued by the Government that one must have the worker completing the ballot at home, not at work. One sees at once that it is true that in the workplace situation—or, more likely under my amendment, a position near the workplace—there will be more discussion and argument on the matter among workers. A man may argue with his wife, which is another point that the Government do not seem to understand. Perhaps they have little experience of such matters. I assure them that arguments at home can be as difficult and delicate a matter as arguments at work. I do not see why workers should not discuss issues with one another. Why should they be divided from one another at the point when they decide.
They will certainly discuss the matter at home. What the Government seem to need—and perhaps in the next Bill we shall have it—is the worker producing an affidavit that he filled out the ballot form in the presence of his wife. That is the logic of the arguments moved by the Government in another place. But another place is not here, and I am sure that they will not push it to that extreme.
The ballot which is now demanded is not necessarily the best for any of the purposes for which ballots might be said to exist. It may be so in a particular case. But there may be other cases where it is not so. It is not necessarily the best in determining the democratic legitimacy of the move to industrial action. It is certainly not the best in terms of turn-out, of the numbers of workers involved—unless there has been research of which I am unaware. Research is always going on, so we may meet something new. I invite the Minister to consider whether the Government could not allow for a flexibility here which would satisfy all the possible objectives of the balloting process. I beg to move.
9 p.m.
Baroness Turner of Camden: I withdrew my amendment in favour of the one drafted by my noble friend because on reflection I thought that his wording was a great deal better than the original wording that we put down. The issue is the right to continue to have workplace voting. As drafted, the Bill removes the

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right of trade union members to have ballots at their workplaces. In future, should the clause be unamended, all ballots will have to be postal. We know that the cost and administration entailed in such a venture is likely to be considerable. We discussed that in an earlier part of the Bill. But as my noble friend said there are other considerations which are even more important. We have now had a number of years of dealing with ballots under existing legislation which allows for workplace balloting as well as postal balloting. There is no doubt at all—I speak from experience in this regard—that workplace balloting attracts greater membership participation. After all, that is where the union is active on behalf of members. The individuals concerned know each other and talk together. Why should they not discuss the industrial issues which unite them and around which they are organised? Unions are organised around workplaces.
In my experience such ballots have always been very well conducted and do not seem to have given rise to widespread fraud or anything of that kind. If we want unions to be fully representative of their members, surely we should choose methods that make it easy for members to participate.
As usual, the Government are trying to have it both ways. They boast of their past legislative efforts having given back the unions to their members; but then they fail to act on that assumption in their subsequent legislation. As my noble friend said, out of a number of complaints made to the CROTUM in the past three years only one related to a strike ballot—one successful one in the sense that it was a court decision. So there is no evidence of widespread fraud. If there had been, it would surely have surfaced in the office of the CROTUM.
Against that, many employers' organisations, including the Engineering Employers' Federation, support workplace ballots because they tend to give a quicker result. That is clearly important in situations of dispute. Postal ballots inevitably take longer. Indeed, in another part of the Bill that we have to discuss, independent scrutineers are given up to four weeks to return the result to the union.
In industrial relations terms this provision makes absolutely no sense at all. Indeed, the Government's 1987 Green Paper Trade Unions and their members said that postal ballots were less suitable for strike ballots. The TUC echoed those views and said it did not believe that there had been any substantial reason to change the Government's assessment of the situation as it then was. The Institute of Personnel Management also says that workplace ballots on industrial action normally have a high participation rate because they are workplace ballots. The Association of British Chambers of Commerce points out that a difficulty with postal ballots is the length of time they take in the context of strike action being called.
In fact, anybody with experience of industrial relations knows that in an industrial dispute or potential industrial dispute situation time is of the essence. One does not want the issue hanging around so that a postal ballot can take place with all the proceedings that that involves and with the scrutineers
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having up to four weeks in which to return the results. It is hypocritical for the Government to say they are interested in the individual rights of union members and want to give their unions back to them and at the same time, quite specifically in this legislation, forbid a system which promotes maximum membership participation in favour of one which is lengthy and cumbersome and where the return is not so high. I hope that common sense will prevail, that the Government will go back to the views expressed in the 1987 Green Paper and that they will not proceed down the path indicated in this section of the Bill. I support the amendment.
The Viscount of Falkland: I have already spoken and voted in support of the Government's proposals in Clause 1 for secret postal ballots for the election of members of union executive committees under independent scrutiny. But ballots on industrial action are quite another matter.
As I understand the position, the Government have already conceded the principle that in the case of organisations employing 50 or fewer people a workplace ballot should be allowed to continue under an arrangement providing for secrecy and independent scrutiny. If I am wrong about that, no doubt I shall be told. If that principle has been accepted, I cannot see why it should not apply equally to organisations employing more than 50 people.
There is no need for me to repeat the arguments in favour of workplace ballots. They were admirably put forward by the noble Lord, Lord Wedderburn, and the noble Baroness, Lady Turner. I fully support what they said.
Lord Stoddart of Swindon: I should like to say a few words on this amendment, which I support. Workplace ballots for industrial action are undoubtedly the proper way in which to conduct ballots. The idea of having a postal ballot about industrial action was perhaps dreamt up because the Government thought that a wife, if she had some influence, would persuade her husband to vote against strike action or other industrial action.
That was in the good old days when wives stayed at home and couples had only one income. But now there is feminism. There are women who are very militant. Today women take much more interest in what happens in the workplace and have a good deal of knowledge about it. Therefore they are much more au fait with matters than they used to be. That is altogether good. It is by no means certain now that the "little woman at home" will persuade her husband not to go on strike. The little woman at home—now the "big" woman —is more likely to discuss the matter with her husband and say, "Look here, it seems to me that you have been treated badly and it is time to do something about it".
So things have changed. The other objection to postal ballots is low turnout. When people receive a ballot form at home they say, "We will fill that out tomorrow". Tomorrow comes and they say, "Let us think about it. We will fill it out tomorrow". By the time they have finished, so many tomorrows have passed that the voting date has gone by and they have

1639
missed their opportunity to vote. Postal balloting, therefore, is not always satisfactory, especially in matters of industrial action.
I have been responsible for organising workplace ballots. I can assure the noble Viscount that when they were organised they were organised properly and there was no possibility of victimisation; there was no arm-twisting, and we had a system which was at least as foolproof as electoral ballots for local councils or for Parliament. They worked and they worked admirably.
The turnout was extremely high for at least two reasons. One was that people were able to discuss the issues involved among themselves—in the canteen or wherever. That made them more likely to turn out to vote. Also, they saw other people voting. That reminded them to vote and therefore they did vote. I found it a highly successful method of getting people to take decisions in the workplace.
I can assure the noble Viscount that it is an exceptionally good system. It smacks of democracy, and that is perhaps why the Government do not like it, whereas the other system does not. If the noble Viscount believes in democracy, in argument, in discussion between people about issues, and if he believes in high turnout, then he will support the amendment.
9.15 p.m.
Viscount Ullswater: I listened carefully to the points put forward by the noble Lords opposite during the debate on the amendment. However, I cannot agree that a ballot for industrial action, conducted in the way that the amendment would allow, would represent a satisfactory alternative to fully-postal voting as proposed by the provisions as they currently stand.
The amendment would provide trade unions with a choice as to the way they conduct voting in an industrial action ballot, and we believe that that is no longer acceptable. The amendment would not change the provisions in a way which would reassure voters about the proper conduct of a workplace ballot. Nor would they allow voters to cast their vote away from the particular pressures to which they might otherwise be subject if voting took place in the workplace.
Turning to Amendment No. 64, the noble Lord and the noble Baroness will be aware that ACAS Codes of Practice do not have the force of law. They recommend good practice to which the court and tribunals generally may have regard. However, I am unsure whether it is the intention of the noble Lord that that should continue to be the case here.
We heard the question posed as to whether postal ballots would result in lower numbers voting and hence to a less accurate reflection of union members' views. Whatever claims may be made in regard to such matters, we believe that the most important consideration is to make sure that voters can cast their vote, and decide whether to cast their vote, free from the kind of pressures that may be brought to bear in a workplace ballot, or a ballot in which voting papers have to be collected in person from the workplace.
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Where trade union members have a genuine interest in the outcome of a ballot, they can be expected and, I believe, trusted to exercise their democratic right. In my view the noble Lord, Lord Stoddart, indicates a level of apathy. If that indeed is the true feeling of the individual as to whether or not he is inclined to vote, then perhaps it is reflected in the action that he takes.
Lord Stoddart of Swindon: The noble Viscount misrepresents me. I said forgetfulness.
Viscount Ullswater: The noble Lord did not say forgetfulness. His words were, "I will do it tomorrow". That indicates apathy, not forgetfulness. He said that as days go by the member would say again, "I will do it tomorrow". That is not forgetfulness. That is a question of not really caring about casting a vote. If he cared he would post the vote because he receives an envelope with the voting paper.
Lord Stoddart of Swindon: No, he is still thinking about it.
Viscount Ullswater: As we made clear in the 1991 Green Paper, Industrial Relations in the 1990s, and in our election manifesto, we believe that the best way of ensuring that industrial action ballots are conducted democratically, and without impropriety, is to provide each of those entitled to vote with the opportunity to do so by post. Compliance with any ACAS code of practice would not guarantee that right to individual members. That is why we have brought forward the provisions in Clause 16. We believe that this is an important point of principle, where codes of practice are not sufficient.
The amendment seeks to introduce a safeguard into a balloting method which we believe is fundamentally flawed and no longer represents an effective means of protecting trade union members' interests. In our view, the safest way of assuring members that a ballot for industrial action has been properly conducted is to ensure that, as far as possible, each member is given an opportunity to vote by post, as proposed by the current draft of Clause 16. If the noble Lord is similarly concerned about reassuring members in that way, I trust that he will withdraw the amendment.
Lord Wedderburn of Charlton: I am grateful to the Minister and to all noble Lords who have spoken in support of a modest amendment.
The Minister asks whether I meant to say "code of practice". I did mean that and I am aware that that does not create legal norms. On the other hand, the Government should be the first to recognise the force of a code of practice. Once they had issued the code of practice in relation to picketing, stating that in the normal case there should be no more than six pickets, the courts grabbed at it, as a way out, time and time again. Codes of practice can have a considerable effect. If the Minister were to push me and say that there should be a schedule, I would look at that situation, because I want to produce the most legitimate and democratic results.
The Minister's argument is another of those government discoveries. Suddenly in 1988 they found

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an area of discipline that was unjustifiable. They had had eight years in which to find that out. In 1984 the Government introduced strike ballots and they have suddenly discovered that none of the workplace ballots that have been held since 1984 has been other than what the Minister called "fundamentally flawed". It is that kind of argument of rhetoric that we constantly hear attached to government discovery. It is only the Government who are allowed to make discoveries; we are not allowed to make any discoveries.
My noble friend Lord Stoddart made a point which was undeniable. He caught me out in a sexist description of the position. It is correct to state that wives not only participate but in many households the wife is still in work, doing a part-time job, and the husband is unemployed. I know of some women in that position who organised themselves because they realised that although their new rights in areas of equal pay were splendid things, unless they organised together they would not effectively fulfil those rights. There is a very lively imagination in women's groups about workplace activity.
I noted what I can only call the first Freudian ground of argument that has appeared from the Government. The Minister ought to think about his statement the next time he forgets something. He stated that the worker who says "I will do it tomorrow" means that he does not want to vote. That is a very good Freudian argument: it is straightforward repression of the worker who says that he will do it tomorrow. I accept that that may well be the position. It would be a good thing to jog the worker's subconscious mind at the workplace and ask him, "Hey, aren't you going to vote?" That is an argument in our favour. However, the next time that the noble Lord forgets something, he must tell himself that he does not really want to do it. That is not a very good argument in favour of legislation.
This is yet another area where the Government have taken a sudden stand. As one of my noble friends pointed out, the Government did not understand the position in relation to the 1983 Green Paper. They suddenly take a stand and turn the screw more tightly upon unions believing that it will achieve the result that they want—although in this case it is very marginal. If that is correct, it is straight fixing. They are now beginning to fix the machinery to suit what they think are their purposes. I am not surprised by that and I am not surprised that I have to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 16 shall stand part of the Bill?
Lord McCarthy: I do not want to drag out this debate, but we have come to the point where we have to indicate what we feel about this clause. We feel that it is totally unjustified. We have tried to amend it in a number of modest ways but none of them has found acceptance by the Government. I have never accepted the argument that postal ballots were essentially and in general terms, better than workplace ballots or that on grounds of flexibility, speed and turnout and other reasons, the postal ballot seems to be superior.
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The only ground on which one can rule in favour of a postal ballot is if one has positive evidence of abuse. If one has that, there is a case for moving from a workplace system to a postal one in the hope—which is by no means certain—that that will correct the abuse. But we have no evidence of abuse. As Members of the Committee on this side of the Chamber have said from CROTUM, if one goes along the highways and byways looking for enormities and one cannot find any, there is therefore no evidence of abuse. Therefore the balance of the argument runs towards postal ballot.
I believe that I can explain to my noble friend why the Government run the other way. It is easy enough. At the beginning the Government thought that turnout was on their side. At that time they had the simple theory of the militant minority which manipulated the vote. If one had a postal ballot there would be a low turnout, but if there was a workplace ballot there would be a high turnout. With that high turnout the moderate majority would swamp the militants. That was the theory.
What happened was that there were high turnouts but as a result almost all the ballots went in favour of some form of rejection of the employer's position. Indeed, many of the ballots went in favour of industrial action. So the Government said to themselves: "Maybe this workplace ballot is not so good". Then they discovered that not only did the ballot go in favour of industrial action, but that action did not take place. The fact that the union had a pro-strike majority, which may be 80 per cent. or 90 per cent., enabled the union to negotiate a slightly improved offer.
This Government did not like that so something had to be done about it. They went for postal ballots. The idea is that if there are postal ballots the Government will get smaller votes. If the Government get smaller votes—and they hope to do so—and even if a majority of those in the small minority vote for a strike or a great number vote for a strike, the Government will be able to say, "But look at all the people who forgot about it and who put the notice behind the clock and the matter out of their minds. They did not want to strike at all."
So one can add the number of people who did not vote to those who voted against the strike and say that there is a majority against the strike: how dare the union undertake to strike. The union may be in some doubt as to what to do. If it gets a ballot of 50 per cent. or 60 per cent. that gives it a significant majority to undertake a strike, but there are a great number of people who have not expressed an opinion. So the union wants to find out how they feel about the action and that is what the workplace ballot enables it to do, but that is what the Government do not want the union to do. That is why we have this clause and that is why we oppose it.
Viscount Ullswater: The current law requires a trade union to obtain the support of a ballot before proceeding to organise industrial action by its members. If it does not do so, the union will be at risk of proceedings. These proceedings can be either in tort, on the grounds that the union induced a person

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to break a contract or interfere with its performance; or by a union member under the statutory right to restrain a union's call without the support of a properly conducted ballot to that member and others, to take industrial action.
In broad terms, the present law requires that, so far as is reasonably practicable, each person who is entitled to vote in the ballot must be supplied with a voting paper, or have one made available to them immediately before, immediately after, or during, his working hours, at his place of work or at a place which is more convenient for him.
The law also requires that those entitled to vote in the ballot must be given either a convenient opportunity to vote by post; or an opportunity to vote immediately before, after or during their working hours, at their place of work or at another convenient venue; or, as alternatives, both of those opportunities.
It is therefore at present left to the union to decide which of these voting methods, or what mix of methods, will be used for the ballot. These requirements have remained the same since the balloting requirements were first introduced into the law in 1984.
The effect of the new subsection 230(2) is to remove options which previously allowed such a ballot to be conducted by methods other than fully postal voting. It requires that every person entitled to vote in the industrial action ballot must, so far as reasonably practicable, have a voting paper sent to him by post at his home address, or any other address which he has requested the union in writing to treat as his postal address, and be given a convenient opportunity to vote by post.
As I said on a previous amendment, we firmly believe that it is now time to change legislation which has, since 1984, allowed unions to hold industrial action ballots by the far less reliable method of workplace voting. The 1991 Green Paper spelt out our view that conducting such ballots by fully postal voting would provide additional safeguards against intimidation and irregularities in the conduct of such ballots.
Industrial action ballots may well affect union members more directly than, for example, union election ballots. Similarly, they may often be considered more important by union members involved. However, since 1988, election ballots have been required to be held by fully postal voting, but no such arrangements have been introduced for industrial action ballots. In addition, the establishment and maintenance of union membership registers means that it is now more practicable for unions to conduct industrial action ballots by post.
For the reasons that I have outlined, I hope that the noble Lord will consider the issues again and decide not to vote against the Question that this clause stand part of the Bill.
9.30 p.m.
Lord Wedderburn of Charlton: Perhaps I may ask the noble Viscount one short question before he sits down. He pointed out that in 1988 the Government
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exercised their option against introducing postal ballots for industrial action. Presumably, therefore, something happened between 1988 and now. What was it?
Viscount Ullswater: I indicated that we consider that this is the most effective way of protecting the rights of trade union members to cast their vote in secret and to record their views.
Baroness Turner of Camden: But that does not answer my noble friend's point. In 1987 we had the Green Paper, and the Government's position in the legislation of 1988 was that workplace ballots were all right for industrial dispute issues. What has happened in the years since then that has caused the Government to change their mind? With respect, I do not think that the Minister has answered that point.
Viscount Ullswater: I do not want to be drawn too far back—
Baroness Turner of Camden: We are talking about 1988.
Viscount Ullswater: Yes, but it is convenient for the Opposition to go back only to 1988 because if we go back a little further, industrial action ballots were conducted in car parks and on a show of hands. We have moved on, and I believe that this is the right process by which to conduct industrial action ballots now. I ask the Committee to support the clause.
Lord Wedderburn of Charlton: Would the Minister therefore accept that the logic of what he says is that the Government got it wrong in 1988?
Viscount Ullswater: At the risk of boring the Committee, I have to say that I believe that this is progress.
Lord McCarthy: Is it fair to say that the Minister believes that it is progress but that he does not have any evidence?
Clause 16 agreed to.
Clause 17 [Notice of ballot and sample voting paper for employers]:
Viscount Ullswater Viscount Ullswater moved Amendment No. 65:
Page 31, line 4, leave out from ("not") to end of line and insert ("protected").
The noble Viscount said: With the Committee's permission I should like to speak also to Amendments Nos. 67, 86, 274, 275 and 278.
These amendments concern the expression of provisions which, in relevant circumstances, remove immunity for organising industrial action which would otherwise be available. In more detail, they restore references in the 1992 Act to certain acts being "protected", and express new clauses in terms of "protected as respects Section 219" of the 1992 Act.
The 1992 consolidation Act was welcomed widely, not just because it brought together law which had previously been widely scattered among many different statutes, but because of the clarity of its restatement of the law. One well-received innovation was the use of the expression "not protected" in

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Section 219, and subsequent provisions, to describe the removal of the statutory immunities from certain acts.
The amendments restore that "helpful innovation", and express the new matters with which the Bill deals in terms of "protected as respects". Without these amendments, the Bill would change certain references in the 1992 Act so that they became references to acts being
"not prevented by Section 219 from being actionable in tort".
There is nothing faulty in such changes, but, on reflection, we came to the conclusion that the change was unnecessary.
By reverting to the expressions currently used in the 1992 Act, the amendments would significantly improve the expression of the law, as compared to the way it would stand by virtue of changes otherwise made by the Bill. However, they are drafting changes only, and have no substantive effect (in any way) on how the law would apply in practice. I beg to move.
Baroness Turner of Camden: I thank the Minister for his explanation of what appear to be technical amendments. I shall have a look with some interest at Hansard to see what he has said. I am not sure that I have yet understood the amendments. I believe that my noble friend Lord Wedderburn of Charlton may wish to comment.
Lord Wedderburn of Charlton: I wish only to congratulate the Government on a piece of drafting which I think is quite splendid, or at least I hope it is.
On Question, amendment agreed to.
The Deputy Chairman of Committees: I have to advise the Committee that should Amendment No. 66 be agreed to, I cannot call Amendment No. 67, due to preemption.
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 66:
Page 31, line 6, leave out from ("ballot") to end of line 10.
The noble Lord said: This is a serious matter. The provision changes the basis of our law in relation to industrial conflict, and should be looked at carefully now and, I hope, on Report. Our law has been peculiar. Whether one says that organisers of industrial action have been protected or given immunity, that has been the basis of the civil law, and even one or two parts of the criminal law, since 1906.
We have not had rights to associate, but this is perhaps the moment to say, because it is relevant to what comes later, that that system which grew up in our law was much admired by people elsewhere when it seemed to be part of a stable system. Until now, there has been a formal parity within the legal system. On one side, any person who committed an act in contemplation or furtherance of a trade dispute would be protected in respect of certain liabilities. That applied generally and not to particular people. Similarly those who were damaged by an act which they alleged and proved was not covered by such "trade dispute immunity", as it was called in the past, could equally sue without formal distinction of
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categories and classes. It is true that in a sense that was a formal equality, but the Government should take note of the fact that it was a central theme.
The Bill introduces a privileged group. With the exception of Clause 21, to which we shall come, which concerns "disgusted of Tunbridge Wells", or "DOT" as it has become known, about which we had a word on Tuesday, the Bill provides that most people can bring an action if there is an industrial tort—if I may introduce the category of inducing breach of contract and so forth—and if they can prove that it is not covered by trade dispute immunity; either that there is no trade dispute or that for some reason it fell outside the immunity. Since 1984 a trade union has had to hold a ballot in support of industrial action or strike.
There is now a group of people in respect of whom the trade union must go through four hoops instead of one. First, it must give the seven-day notice for the members voting. Secondly, it must give the three-day specimen ballot paper for the employer. Thirdly, it must give the result of the ballot under new Section 231A, to which I shall return. Fourthly, it must give another seven-day notice as to which employees are likely to be taking the industrial or strike action.
That is bad enough. But when we discover that the privileged group which can sue unless the union goes through all those hoops is the employer of any of those taking action we realise that there is a serious disjuncture with what hitherto has been a formally equal system. We now have a system in which the employer is permitted to sue the union on grounds which are far more extensive than those accorded to the ordinary citizen. It would be interesting to see two plaintiffs coming to court because one will turn out to be an employer of an employee taking the action, perhaps induced by the union, and the other will be someone who is not technically an employer but who has relations with the employees. Even from the Government's point of view I find it difficult to sustain the view that one should turn out to have remedies which are so far in excess of the other.
Furthermore, the division which I have made between the one-hoop ballot for the ordinary citizen and the four hoops of notices and ballots for the second group is not the end of the story. The drafting of the provision has been extremely carefully done. When I first read it I thought that it might be cunning but I put that aside because there is a further point which the Minister must answer.
Clause 18 stipulates that the union must give the result of the ballot to the employer within a reasonable period. However, that is inserted in the 1992 Act as Section 231A. The ordinary citizen will come along as plaintiff and sue the union. The union will say, "But we had a perfectly proper ballot". The ordinary citizen might say, "I have been damaged by it all and you have not satisfied all the requirements of the ballot provisions". The union's protection under the ballot provisions in Section 219 applies only where, under Section 226(2) (a), the ballot requires that:
"Industrial action shall be regarded as having the support of a ballot only if … the union has held a ballot in respect of the action in relation to which the requirements of sections 227 to 232 were satisfied".
This is no small point. In other words, group 1 is entitled to demand not merely a ballot but also the satisfaction of Section 231A. Were it to be found that the union had not given notice to the employer, the immunity would be lost on the clear words of Section 226(2) (a).
I do not know whether that is the intended result but it is a new point which the Minister may wish to consider—I almost said that he may wish to sleep on it. It is a very serious point because if we reach that point people will say —and I have no doubt that this will give rise to the next Bill—"Well, this is a silly distinction. Why should not everybody be able to say that they must go through the four hoops?" At present the ordinary citizen can demand that the union go through two hoops and therefore these distinctions are rather absurd.
I believe that this is a paving Bill for future legislation which will up the requirements in terms of what the union must do. Section 231A has been put where it has been put quite deliberately so that the division is not between one hoop and four hoops but between two hoops and four hoops. The whole provision will be a platform for further discoveries by the Government in the next measure. Whether or not that be true, I must ask the Minister whether paragraph (b) can, in these circumstances, be sustained. For a union to satisfy all the requirements —and I have not referred to all of them but there are many—and to prove that it has the support of a ballot is not a simple matter because Sections 227 to 232 require a great deal. Therefore, why should we not leave out paragraph (b)? Why is it there? Why does the employer have that special position with regard to bringing civil action? I hope that the Government will consider deleting that paragraph. I beg to move.
9.45 p.m.
Baroness Turner of Camden: I support my noble friend. Listening to him it seems that unless Clause 17(1) (b) is taken out of the Bill, a coach and horses is being driven through unions' immunity. I hesitate to think that we are discussing a measure which could pave the way for even worse and more punitive legislation in the future. I believe that my noble friend has raised some important issues and I await with interest the Minister's reply.
Viscount Ullswater: These are important matters and it is right that the noble Lord, Lord Wedderburn, should draw our attention to them. Under the present law, a union is free to organise an industrial action ballot without providing any kind of notice to the employer of its members who are to be balloted. Similarly, although the law applies certain requirements to the content of voting papers, there is no requirement for the union to provide a sample voting paper to the employer.
As regards the notice of intent to ballot, if his workers are to be balloted about industrial action we believe that an employer should be aware of that. Just as the union is free to recommend voters to vote "yes" in the ballot, an employer should have the
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opportunity, if he wishes, to put the contrary case. In order to do so, he needs to know that a ballot is going to happen, and who will be voting. Provisions in Section 226A will give employers the right to such information.
Employers should also have the right to receive basic information which may be necessary to help them decide whether a ballot has been properly conducted. Unless they are able to see a sample copy of the voting paper, they are not in a position to judge whether the requirements relating to the form of the voting paper have been satisfied. Section 226A gives employers a right to such information.
Without the provisions of Section 226(1) (b), which this amendment seeks to remove, there would be no sanction for a union which failed to take the steps set out in Section 226A. That would, of course, utterly defeat the intended purpose of these provisions. Section 226(1) (b) therefore provides that unless a union takes the necessary steps, it will not have the benefit of statutory immunity if it induces industrial action by the workers of any employer who is denied proper notice or a sample voting paper. I believe that these are reasonable steps to take. I hope that in view of what I have said the noble Lord will consider withdrawing the amendment.
Lord Wedderburn of Charlton: I am grateful to the Minister for what he has said. I understand his case but I do not agree with it. However, the Minister did not address an important point which I shall mention now so that he can deal with it on Report. Clause 17(1) (b) adds hoops. The Minister has said that those are necessary for the employer. By inference he seemed to be saying that they were not needed for what I shall call the plaintiff who is not the employer. That is what Clause 17(1) (a) seems to be saying. I believe that Clause 17(1)(a) is slightly misleading if one looks at it in isolation. I shall explain again why I believe that is the case. It refers to Section 219 which concerns the basic immunity.
Section 219(4) takes effect subject to Section 226 —that is the ballot provision. Section 226 states that the union must comply, in achieving support for the ballot, with the provisions of Sections 227 to 232. That provision appears in Section 226(2) (a). In Clause 18 of the Bill—as the Minister suggested, these clauses are rather interrelated—the demand that the union take steps,
"to ensure that every relevant employer is informed"
of the result of the ballot is inserted as new Section 231A. Therefore it falls between Sections 227 and 232 and is something upon which any plaintiff can rely. I do not know whether that is a mistake. Perhaps the Government will consider that matter as I do not believe that this point has been raised before. I hope that the Minister can reply to me now on this matter. In my submission, if the Bill remains as it is, any plaintiff can utilise a failure to inform every employer of the result of the ballot as a reason why the immunity is lost.
Viscount Ullswater: Perhaps I can assist the noble Lord. I draw his attention to paragraph 73 of Schedule 7. As the noble Lord will note, that alters the wording

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of Section 226 quite considerably. I do not know whether the noble Lord has taken note of that. I would not expect him to have done so this evening. He referred to words in Section 226(2) (a) which, of course, will no longer appear on the face of the legislation after the schedule is passed.
Where a particular employer is not provided with the required information, only that employer will be entitled to restrain the organisation from industrial action. He would of course only be able to restrain the organisation from the action among his own workers. The Bill recognises that, for the purposes of these requirements, only an employer who has not received the information has a real grievance.
Lord Wedderburn of Charlton: I am grateful to the Minister for those comments. I can only submit to him that his second point is wrong. I think the case law has gone far beyond the principle he has elaborated. However, we can consider that matter further. I have noted Schedule 7. It contains a requirement for the union in paragraph 73(b) (ii) where it states that the ballot must be one in relation to which,
"the requirements of sections 227 to 231A were satisfied".
That is exactly the section I have been talking about. It is in the schedule. I had seen it there but I did not think that it would help the Minister, and at this hour of the night I dare not go into the schedules. The Minister has done so. I know that one can cut one's finger on a piece of paper. It may be that a similar fate has overtaken the Minister. Should we not consider the matter at Report? It would be much more sensible to do so. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Viscount Ullswater Viscount Ullswater moved Amendment No. 67:
Page 31, line 7, leave out from ("not") to first ("the") in line 8 and insert ("protected as respects").
On Question, amendment agreed to.
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 68:
Page 31, line 10, at end insert:
("provided that where interlocutory (or in Scotland interim) proceedings are commenced on a date falling within the balloting period, no order shall be made by the court unless the trade union has failed or is shown to be likely to fail, to satisfy paragraph (a) above.
(1A) In paragraph (b) subsection (1) the "balloting period" is that period commencing with the seventh day mentioned in section 226A(1) (a) and terminating on the day following the last day of the appropriate period defined by subsection (4) of section 234A of this Act.
(1B) Subsection (1) (b) of this section does not apply to an employer who is reported in the scrutineer's report made under section 231B to have been responsible for interference in respect of the ballot, unless that employer proves the contrary.").
The noble Lord said: One of the greatest problems for our labour relations, even before the legislation of the past two years, has always been the interlocutory injunction. That is partly because the union often has little notice and largely because since 1975 the courts have made it clear that the applicant who applies for an interlocutory injunction need prove no more than an arguable case. I do not know whether any Members of the Committee have ever tried to resist an arguable case. One says to one's interlocutor that his
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case is not arguable. That is a very strong thing to say to someone. It verges on saying that they have no sense whatever. Therefore, in interlocutory proceedings the union is facing a burden of proof which requires it to show that the case is not even arguable. Any lawyer worth his brief fee can usually drum up an arguable argument. Therefore, we begin with that problem.
The interaction between the interlocutory injunction—where all that the plaintiff has to do is show an arguable case, since the case of American Cyanamid Co. v. Ethicon Ltd. in 1975—and the new hoops through which the union has to go will make it extremely difficult to succeed. I do not say that if the matter ever went to trial it would be quite so difficult, but the reality of labour relations in law is the interlocutory or interim procedure.
A famous American author wrote a book in the 1930s on the interlocutory injunction. He said very rightly that once the employer has his interlocutory injunction there is almost never a trial because he has won the dispute or it has helped him to win the dispute.
The amendment provides—I am sure with considerable drafting infelicities, and I apologise to any Members of the Committee from Scotland if I have not used the correct language in terms of Scottish procedure—that now that the Government are setting up a prolonged balloting period, with notices for the employer, there ought to be a period in that arrangement during which the employer cannot seek an interlocutory injunction.
Some Members of the Committee may find that rather strong meat. However, let us look at it this way. The union is required not to authorise a stoppage until there is a ballot. It cannot hold the ballot until it has given seven days' notice. Before that it has to tell the employer who is likely to take part. It also has to show the employer a sample voting paper, and so on. Those are new arrangements. Therefore, to expect them to interact with court procedures as delicate as the interlocutory process without specific arrangements is foolhardy or simply antagonistic towards the union defendant in the arrangements. If one wants to make sure that the union loses every time, then one strips away the immunities, increases the number of hoops and leaves the interlocutory process as it is. The Government may wish to do that. The noble Viscount may tell me that that is right. But I say that it is a period when one might wish to consider some equal rules. Just as occurred in Irish industrial relations, it is extraordinary how English lawyers always seem to consider that nothing else is going on elsewhere.
If the Minister's advisers have read the Irish Industrial Relations Act 1990, they will find that once the union has held a ballot it is protected against injunctions, if notice has been given of the action and if it has what is called a fair cause in its argument. The amendment does not provide for quite the same position. But it provides that if the balloting period is to be one during which the unions stand still and cannot launch the action, then on the employer's side it should be a period in which the employer is not permitted to use the interlocutory injunction process.

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The Government might state that the period is too long. But the amendment refers to the period between the two periods of notice.
I hope that the Government will take the matter seriously and not brush it aside. At present the provision in the legislation is extremely one sided. It does not state anything about interlocutory procedures. It would be nice to know that the Government have considered interlocutory injunctions. I beg to move.
10 p.m.
Viscount Ullswater: The noble Lord has made it clear that the purpose of the amendment is to undermine the effectiveness of the new protection for employers which Section 226A will provide. For that very reason, the amendment is unacceptable to us.
If a union does not provide the required notice, or the information to be contained in that notice, its subsequent call for industrial action will not be, and should not be, protected by statutory immunity. Where that happens, or is likely to happen, the employer should not have to wait until the action actually takes place against him before being able to take steps to defend his interests.
If an employer believes, first, that the union has not taken the steps set out in new Section 226A and, secondly, that the union is nonetheless likely to proceed to call for industrial action against him by his workers, the employer should therefore have a right to go to court to seek an injunction which will prevent that happening. That right should be available as soon as the employer feels that those circumstances apply. After all, no call for industrial action as a result of that ballot would enjoy immunity.
Such "pre-emptive" injunctions are a valuable and necessary protection which the law extends to the likely objects of unlawful acts. They are familiar enough and very necessary for those who can demonstrate to the satisfaction of the courts that without their award they will be the victim of an unlawful act.
The courts will not award such injunctions lightly, even on an interlocutory basis. I do not think there is any "danger"—if, indeed, that is really the appropriate word —that unions are going to find themselves constrained because the courts award injunctions without a proper basis for doing so. The Government have confidence in the ability of the courts to exercise their powers properly, and with due regard for the proper interests of all concerned. If noble Lords opposite take a different view, I am sorry for that, but I do not hold it myself.
I turn to the second element in the amendment: the suggestion that, in certain circumstances, employers should not be able to obtain an injunction even where there is evidence that a union has called for industrial action without providing the required notice of its intent to conduct a ballot.
An industrial action ballot is a union's ballot, which a union decides whether to conduct, and which it must conduct if it is to have the special protection which the law can provide for its organisation of
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industrial action. We have to ask ourselves, therefore, just how an employer can really "interfere" with such a ballot. Also, if there is some kind of act by such a "third party" to the balloting process, falling short, of course, of an act which would amount to a criminal offence, why would a civil law sanction be the appropriate way of dealing with what had happened?
If the union—and it is the union which organises the ballot and stands to gain the protection which a majority vote in favour of industrial action can provide—thinks that the ballot has been less reliable than it would wish, for whatever reason, it decides for itself what it wants to do in the light of that conclusion.
If an employer wishes to put his case against taking industrial action to those who may vote in such a ballot, I cannot see how that could, in any real sense of the word, be called "interference" with the ballot itself. It would certainly not be interference with the conduct of the ballot. Indeed, if an employer tells voters what may be the consequences for them or for his business of a vote in favour of industrial action, or of industrial action itself, I would not regard that as "interference" of a kind which ought to be in any way condemned, or which should lead to any kind of penalty on that employer. By like token, if a union recommends voters to vote in favour of industrial action, that in itself should not be regarded as culpable interference.
It follows that there is neither need nor purpose in requiring scrutineers' reports on industrial action ballots to say, as a matter of course, anything about whether there has been any kind of employer interference in a ballot. If a scrutineer chose, for whatever reason, to say something of the kind in his report, that would be entirely up to him. But such a statement, if made, should carry no legal implications for the employer or constrain his freedom of action as the amendment proposes.
In the light of my response, I hope that the noble Lord will withdraw his amendment.
Lord Wedderburn of Charlton: I thank the Minister for the reply. I said nothing about the second part of the amendment, for which I apologise. I thought that it was obvious that the employer who had been guilty of interference in the ballot should not get an injunction. I suppose that I was working on the well-known equitable principle that he who comes to equity must come with clean hands. The Minister asks, "How could the employer possibly interfere with the ballot?". I suppose that unions will be glad to hear that, because the definition of interference is now so narrow, no one will get through the hoop.
Of course people can interfere with the ballot. The Minister has overlooked the cases which I put to him two days ago and I hope that he will look at them properly. For example, in the American jurisdiction, if an employer puts in the wage packet—or perhaps I should say, in the light of the Bill, in the same envelope as the wage packet—a threatening note to workers, in my view that is interference in the ballot. There can be an argument, of course, but there are employers who have threatened workers quite disgracefully. It is not necessarily a crime to say such things. Of course, there

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can be employers who interfere in the ballot and I say that the employer should not have the right to obtain an injunction in that period.
Further, the Minister says that this would undermine the effectiveness of the whole matter. Frankly, that gives it all away. The effectiveness of the whole legislation is to set up the new hoops and make sure that employers can get interlocutory injunctions right, left and centre. The Minister, with great confidence, says that he is quite sure that such injunctions will not be granted lightly. However, I can tell him that a union in the public sector in 1987 which had seen a dispute arising from the membership for a year, suddenly found that on Sunday certain plaintiffs had telephoned the duty judge and, ex parte, without a hearing or notice to the defendant, had obtained an interlocutory injunction which it took three weeks to get rid of; perhaps that will give the Minister the flavour. Of course, it is not a characteristic case; there are such cases but it is quite easy to get an interlocutory injunction, at any rate if one briefs the right counsel. It is silly to suggest that this is a matter where the courts can possibly provide much defence and certainly not of the Bill.
The matter of the interlocutory injunction is very serious and I ask the Government to look at it. Once again, it is fundamental for union funds, costs and everything else. If the Bill is left as it is with nothing in it about the interlocutory process, the Government are simply establishing an Act which is so one-sided that no one could possibly defend it against international standards. However, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Turner of Camden Baroness Turner of Camden moved Amendment No. 69:
Page 31, line 10, at end insert:
("(1A) After that subsection there shall be inserted—
"(1A) Wherever an act is prevented by section 219 being actionable because industrial action has the support of a ballot, the contracts of employment of persons taking part in that action shall be presumed suspended until the termination of the dispute." ").
The noble Baroness said: It will be recalled that several times during discussion of the Bill I or one of my noble friends have expressed concern that even when all the considerable hurdles have been surmounted in the way of running a lawful dispute, and despite the UK's commitment to the ILO Convention 87 which includes the right to withdraw labour, the individual does not have a positive right to withdraw labour.
It is true that the union secures immunity from actions in tort if it follows all the procedures. As we have just heard, there is a considerable number of hoops to go through in the various pieces of legislation preceding this Bill and also in the Bill. Nevertheless, if the union itself manages to do all that, it secures immunity from actions in tort.
However, nothing has been done by the Government—who are so concerned, as we have heard this evening, about individual rights—to protect the position of the individual who, along with his colleagues, withdraws his labour in a dispute in which
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there has been a ballot and all the necessary steps have been taken to render it a lawful dispute. When he withdraws his labour, his contract of employment is automatically broken. Moreover, just as a form of frightener, the union will have to have told him so in a statement on the ballot paper. It will have to say, in effect, "If you vote for the strike, you are sacking yourself". That, in effect, is what the union has to tell its members.
I suppose the Government think that that makes matters all right. The member will be told, will take the decision to break his contract, and must therefore take any individual consequences that follow from that decision. I do not believe that it is all right. It is not fair to put the individual in that position and continue to maintain the fiction that we abide by international ILO obligations and maintain the individual's right to go on strike. I believe that it should be possible for the employment contract, when interrupted by lawful industrial action, simply to be regarded as suspended. I understand that that is the position in a number of other EC states.
It is not enough to argue, as I expect the Government will, that in practice people usually resume work after a dispute without any penalty. When the union negotiates a return, it endeavours to ensure that and is very often able to do so. But it is not good enough that the legal position of the individual should remain so ambiguous.
I expect the Government will say, "What about a dispute that goes on for a long time, say for a year? There have been disputes that have gone on for longer than a year. Surely you don't expect the contract simply to stay suspended for the duration of a long dispute?" Perhaps not, and I shall not press the matter to a Division at this point of the evening. But it is important that the principle of suspension is discussed. If the wording of the amendment is not adequate or not right, it can perhaps be adjusted at Report stage. But we have to address the situation of the non-protection of the individual. He will participate in a lawful dispute, in effect have no protection at all and will not have a positive right to withdraw his labour, whatever the Government may maintain. I beg to move.
Baroness Seear: On these Benches we wish strongly to support the amendment. In doing so, I wish to ask the Minister one or two questions. A belief in the right of association, the right of people to join unions, is common ground between us. I am sure the Minister will agree that the purpose of the freedom of association provision is that negotiations can take place between evenly weighted parties. That is a major idea behind the provision; namely, that one does not have a weak person bargaining against a strong person. That is why it is so important in terms of industrial relations. If that is so, the provision does not mean anything unless, when it comes to negotiation, it is possible for the union side to say, "We are not going on. We withdraw our labour". I contend that if there is no genuine right to withdraw labour, there is no reality to the belief in freedom of association. It does not exist unless, at the end of the day and after due processes have been gone through, it is accompanied

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by the right to withdraw labour. If the contract is not suspended, that right to withdraw labour is not a reality; there is a threat that the man will lose his livelihood.
It has always been possible in the past to argue that people were in breach of contract. The fact is that very few employers have ever used the argument. They have recognised, as I have put forward, that there must be the ability to withdraw labour if freedom of association is to mean anything. If the Government do not allow the contract to be suspended, they might as well come out into the open and say that they do not believe in freedom of association.
10.15 p.m.
Viscount Ullswater: I have to reply to the noble Baroness that there is nothing in UK law which prevents the freedom to strike. It is the consequences of those actions which may result in further action being taken by the employer. There is a contract between the employee and the employer. The amendment is very damaging. It was interesting to hear what the noble Baroness gave as justification for this measure. It is a very novel development in the law of employment contracts in the United Kingdom.
Baroness Seear: The noble Viscount says that it is very novel. Will he tell the Committee on how many occasions in the past employers have in fact used the right, which they have always had, to say that the striking employee was in breach of contract? When has it happened?
Viscount Ullswater: The effect of going on strike is a breach of contract between the employer and the employee. By this amendment the noble Baroness seeks to suspend the contract so that cannot take place. For my part, I can think of little that would be more calculated to play into the hands of militants and wreckers. Such a measure would surely risk undermining all this country's recent achievements in terms of improving its industrial relations record and reputation.
We believe in balloting where that is necessary to ensure that union members have a proper say in the conduct of the affairs of the union to which they belong.
An industrial action ballot is necessary, for example, to ensure that members want their union to call on them to take such action. The ballot is therefore a necessary condition if a union is to have the benefit of the protection which the law can give it to call on workers to take industrial action against their employer.
However, such a ballot for such a purpose cannot and should not afford any special protection for workers who choose—it will always be an individual choice at the end of the day —to take industrial action against their employer. If a ballot were capable of affording some special protection to workers who take industrial action, why should they ever vote against the action? I can see that such a law would vastly
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increase the chances of unions obtaining "yes" votes in such a ballot. But surely we have to consider the wider effects of that on this country's business and economy.
UK law has always allowed employers the necessary freedom to respond to strikes by imposing sanctions on those who take such action. That was the case even under the legislation enacted by the last Labour government. Indeed, so far as concerns protection against unfair dismissal, that government allowed employers to dismiss all those taking industrial action without risking claims of unfair dismissal from any of them. Even that Labour government did not believe it right to make it unlawful for employers to dismiss strikers in that way.
Employees who take industrial action will know that there may be damaging financial consequences for them, since they will not be entitled to receive any pay from their employer if they withdraw their labour. They should also be aware that they are putting their jobs at risk because the employer may decide that he has no option but to dismiss them.
In the case of strikers, the amendment would actually produce a truly bizarre result. What is it that a striker does? Surely he or she has decided that he or she wishes to bring pressure to bear on the employer by refusing to do the work which would fall to be done under the contract of employment? What else is that but a decision by the individual to break that contract of employment?
This amendment indicates that the noble Baroness, and I assume the party she represents, want to allow those who have chosen to break the contracts of employment they have made with the special dispensation that the breach will fall to be treated as no more than a "suspension". Even if that had some element of logic—which I cannot find—it would make no sense as a means of helping to improve this country's industrial relations. I hope therefore that she will withdraw the amendment.
Baroness Seear: Let us get it quite clear, the only logical conclusion that one can draw from that is that the Government do not believe in the right to strike. That is the only consequence to be drawn from that speech. The Government had better come clean about it and say so.
Lord McCarthy: Will the Minister do that? What does he mean when he says that nothing prevents the freedom to strike? In exactly the same way, nothing prevents the freedom to libel; nothing prevents the freedom to slander; nothing prevents the freedom to provide shoddy goods or to break commercial contracts. Nothing prevents the freedom to do all those things because an action can be taken: civil actions can lie in cases of libel and slander; and if one goes on strike one can be dismissed for breach of contract. How can it be called freedom? How can one be said to be free to do something when a civil action can be taken to have one dismissed? It can only be a freedom if it carries no consequence of that kind.
Viscount Ullswater: I have the feeling that people look at contracts of employment with scant care; as though they mean nothing. What is suggested is that

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a contract of employment can be suspended—in this case indefinitely—and that the breaking of a contract of employment by the withdrawing of labour should have no penalty.
Lord Wedderburn of Charlton: Before the Minister completes his thought process on this difficult matter, perhaps I may ask this. Is he is aware that what he said was that a breach of a contract is a breach of a contract is a breach of a contract?
Contracts have many terms implied by law, especially in our system. There is the unfair contract terms legislation. It is possible to bring that into operation—we do it every week. We imply terms into contracts. The Minister will find that in one way or another all systems of law are not quite the same. The systems to which I refer imply by law in the contract that where industrial action is otherwise lawful—I stress that—the contract of employment is suspended, in the major cases to the end of the dispute. That is true in Italy, Spain, Portugal, France, Germany—not in Denmark—but in Norway and Sweden; for the most part in the jurisdictions of the United States and it is certainly true in Canada.
The Minister must realise that merely saying that a breach of a contract is a breach of a contract and he cannot do anything about it looks quite strange to other countries. They think that Britain is rather strange. Denmark is not quite so strange because it has other features of law, but it is in our category. The position in Ireland is disputed on the case law.
The Minister appears to think that one can have a right to strike when one can be discharged or otherwise penalised for a breach of contract where one has walked from the job on lawful industrial action. It is the very definition of the right to strike that the worker cannot be so penalised. It is implicit in every study and discussion, and even the noble and learned Lord, Lord Denning, in 1978 tried to introduce it into English law in the case of Morgan v. Fry. He did not succeed because it is not a matter for judicial creation; it is a matter for statute. But his judgment warrants attention, and I am sure that the Minister will give it close consideration.
My noble friend tabled an amendment which the Minister appeared to think was quite shocking. Does he believe that the breach of contract doctrine governs industrial relations? It has an effect and should not exist in its present form because we have moved on and should be looking at people's rights. Sometimes the Government are keen on rights. Let them look at collective rights and the right of association. That is where the right to strike lies—in the centre of the right of association.
The Government are worried about the situation because for the first time in our debates on the Bill they took refuge in what the last Labour government did. Therefore, we know that they are looking at the position carefully.
Baroness Turner of Camden: I am rather surprised at the Minister's response to the amendment. I agree with what was said by the noble Baroness, Lady Seear. Everything the Minister said in response to my amendment indicates that the Government are against
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the right to strike, despite the fact that they have previously ratified ILO conventions that give the right to strike.
I do not understand what balloting has to do with protecting individuals. We support balloting. We have said for many years that unions are in favour of balloting their members, but that has very little to do with protection of individuals. The protection of individuals should follow from a decision taken to withdraw labour in a dispute that has been rendered lawful because the union has gone through all the hoops laid down in the legislation.
The legislation by the last Labour government was intended to be a form of protection because, the government stated, "If you are going to dismiss strikers, you do not dismiss isolated individuals because you think they are ringleaders; you either sack everybody or nobody at all". The intention was to support people who could be said to be ringleaders, and that is something that worked.
In any event, and as the Minister is fond of saying, we have moved on. It is a bit much for him to tell the Committee that the amendment is novel. We have stated on many occasions during discussions on industrial relations that there are many countries in Europe where there is provision for the contract of employment to be suspended if the individual participates in action which is lawful within their system of industrial relations.
I do not understand why the Minister reacted so sharply against the amendment. The Government have something to answer for. They claim to be protecting individuals, and that the Bill is about individual rights, but when we introduce an amendment that is specifically designed to protect the individual, as distinct from the union, we get the kind of response that we have heard this evening. Nevertheless, I will not press the amendment. We may look at the issue and put forward different wording on another occasion. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 70 to 73 not moved.]
Baroness Turner of Camden Baroness Turner of Camden moved Amendment No. 74:
Page 31, leave out lines 29 to 34.
The noble Baroness said: The group of amendments commencing with Amendment No. 74 covers similar ground, but we regard them as being important.
The Bill states that the union has an obligation to inform the employer who in that employment is entitled to take part in the ballot. In Committee in another place it was stated that that did not imply that the union had to give names to the employer. However, the text does not read in that way. Anyone reading the text would assume that the union was bound to tell the employer who would be entitled to vote in the ballot.
In other words, as my noble friend Lord Wedderburn stated on Second Reading, the union is being compelled to finger its members to the employer. That is an unacceptable situation. As I indicated,

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some members do not want their employers to know that they are union members. For that reason they may not pay by check-off. That situation is particularly true of people who may believe that they have feet on a career ladder and while they may have every sympathy for a union and been in membership for some time, they are not anxious to do something which they feel might endanger their promotion. They may be the very people who vote against strike action, but they pay their subscriptions and they are entitled to vote and should not expect to be "fingered" to the employer.
For that reason we are moving the amendment which would delete in line 30, the words,
"so that he can readily ascertain them".
I refer also to Amendment No. 78. In order to make the point absolutely clear we wish to have written into this section of the Bill the wording:
"This section does not impose upon the union a statutory duty to supply the employer with the names of the employees so described".
In Committee in the other place there seemed to be an acceptance of the views expressed that people on our side were very unhappy about the prospect of individuals being identified in the way in which the Bill seems to provide. Therefore, I hope that this evening the Minister will agree that what is proposed here is very reasonable and that he will accept the amendment on behalf of the Government. I beg to move.
10.30 p.m.
Lord Rochester: At Second Reading I said that my noble friends and I were troubled lest the requirements in both Clauses 17 and 20 that a trade union should so describe employees to an employer that their identities could readily be ascertained, amounted to an unreasonable breach of confidentiality.
At Report stage in another place—to amplify somewhat what the noble Baroness, Lady Turner, has already said—the word "ascertain", which now appears in line 30, was substituted by the Government for the word "identify". But objections, as she has said, were not surprisingly raised to such a limited modification. In consequence, the Minister said, at col. 262 on 16th February:
"I thought that the amendment, … met the requirements requested of us. However, … I shall look at the amendment again".
At Second Reading I said that I understood from those exchanges that the Government might be willing to initiate or to accept an amendment to meet the point in question. I asked the noble Viscount to confirm that that was the case. He had many other questions to answer in winding up the debate so it was understandable that he did not reply to mine then. I hope that he will do so now.
The aim of Amendment No. 78, as has been said, is to replace the offending words with some which are better calculated to provide the necessary degree of confidentiality. If the Government cannot accept the precise terminology proposed, perhaps the Minister will at this stage confirm at least that the Government
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accept the principle involved and that on Report they will bring forward their own amendment to relieve us of our anxieties on this matter.
Viscount Ullswater: Paragraph 3.25 of the 1991 Green Paper Industrial Relations in the 1990s proposed that employers should be entitled to receive notice of a union's intent to hold an industrial action ballot, and that the notice provided should include details of which members of an employer's workforce would be entitled to vote. Those proposals won strong support.
Indeed, I should perhaps mention, in particular, the comments of the Institute of Personnel Management. The noble Lord, Lord Rochester, has spoken to these amendments and he has often spoken of his high regard for that institute.
In its comments on the Green Paper, the IPM said:
"In so far as a ballot is used to ascertain an individual's opinion with regard to possible industrial action … the Institute supports the proposal that employers:—should be informed of the intention to hold a ballot, the workers involved, the questions put, and the voting procedure".
The proposed new Section 226A(2) sets out the matters to be included in the notice that a union will have to provide if it proposes to conduct an industrial action ballot. Subsection (2) (c) states that the notice must describe:
"(so that he can readily ascertain them) the employees of the employer who it is reasonable for the union to believe (at the time when the steps to comply … are taken) will be entitled to vote in the ballot."
During Committee debate in another place, we were asked whether these provisions meant that a union would have to provide the names and addresses of people likely to be balloted. The Minister then made clear that he thought it most unlikely that a union—unless, of course, it wished to do so—would ever have to supply names.
To go some way to meeting these concerns—but, equally significantly, to bring the provisions in this clause into line with similar provisions in Clause 20 concerning notice of intent to organise industrial action—we amended the original wording of those provisions. We accept, however, that the present provisions do not remove the possibility, no matter how remote, that a union might have to supply names, and only the names, to an employer if that was the only means of satisfying the notice requirement.
In correspondence with the Opposition employment spokesman after the Report stage in another place, the Minister made this quite clear. I quote from his letter of 24th February:
"If the only way in which a union could satisfy the notice requirement would be to provide the employer with the names of those it expected to be entitled to vote, then these would have to be provided".
In different ways, each of these amendments seeks to undermine that policy.
Amendment No. 74 is the most direct. It simply removes the requirement to give any kind of indication to the employer, whose workers, I remind the Committee, are to be invited to vote in a ballot about taking industrial action against him, of who is likely to be given entitlement to vote. The employer would be no better off than he is now. Amendments Nos. 76 and 77 would modify the provisions of the

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section. The first would remove the requirement that the description given to the employer had to be one from which he could ascertain those of his workers likely to be balloted. The second would require only a "general" description of the group or group of workers involved. However, I fear that the description that that could produce might in fact be useless to the employer as a means of finding out which workers were likely to be voting in the ballot.
What, for example, if the notice related to a ballot of just a few of many workers employed by some major employer, say, a vehicle manufacturer with many plants and many workers in each of them, and said no more than that the ballot was to be of workers "in a paint shop", of which there might be many? Clearly, the employer would in effect have been given no new right. He certainly would not have been given information of the kind which we judge he may need to help him to protect his business.
Amendment No. 78 attempts a different approach. We do not want to create a situation in which a union would be able to deny an employer the necessary information on the grounds that the only way that it could be supplied was by the provision of names. Too many, I fear, would take precisely that line as a means of avoiding having to provide a key element of the notice requirements.
I listened carefully to the arguments put by noble Lords. I shall of course study the Hansard record equally carefully. However, the provisions with which these amendments are concerned have already been the subject of careful study by the Government, even since the publication of the Bill. I accept that noble Lords may not share my view. These amendments, which seek to undermine the usefulness of the notice requirement, indicate as much. Nevertheless, I hope that in the light of what I have said the amendments will not be pressed.
Baroness Turner of Camden: I am rather disappointed. I had thought that on this matter at least the Minister might be prepared to move in our direction. We have tried a number of different ways of dealing with our anxieties which, I think, are readily understood. As my noble friend put it so graphically, we do not want the union to be forced, as it were, to "finger" (to name) its members to the employer. It is an objectionable provision. For that reason we introduced, as a possibility, the wording of Amendment No. 78, taken from the Committee proceedings in the other place where the Opposition were assured by the Minister that he did not believe that the legislation imposed a duty upon the union to give the names of the employees so described.
I hope that the Minister will take the opportunity of looking again at those proceedings and at Hansard tomorrow to see whether something can be done to meet the legitimate concerns that have been voiced not only by ourselves but by the Liberal opposition this evening. With those comments, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 75:
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Page 31, leave out line 30 and insert:
("(c) estimating the number of").
The noble Lord said: It is important that we move this amendment in view of the important discussion that has just taken place. We tabled the amendment separately from the previous group because it raises a different point. Based on the Government's own argument—their own Green paper even—it is logical to conclude that what the employer needs to know is the size of the sector of the workforce with which he will be confronted.
This part of this nasty big Bill is nasty and unseemly, and I use those words deliberately. I do not know what the Minister imagines. A union official who works with people is being asked to say to the employer, "It is Jack and Jill and Bob who are coming out." Does he have no human sympathy with that situation which overrides this absurdity?
Within the Government's own logic, an estimate of the number is reasonable. I do not like it. I would not move it myself, but I am taking it that the Government will get their Bill through. But will not they consider removing this business of names and addresses, or virtual names and addresses? A colleague of the Minister in the other place spoke of the proposal in this way:
"If the van drivers were to be balloted, it would be sufficient to inform the employer without saying which individuals were involved".—[Official Report, Commons, Standing Committee F, 15/12/92; col. 246.]
That is a nice way of putting it—all the van drivers! Well, we know who they are. The Minister must think again. He referred to the Green Paper. It makes some play with foreign systems which require notice. That is right; there are many systems which require notice, but I defy the Minister to find a system which makes the union name, or virtually name, its members in respect of industrial action.
I move the amendment to put it on the record, and to ask the Minister to look again at this provision before Report. I beg to move.
Viscount Ullswater: I made a full reply to the previous amendment. I have noted carefully all the words that the noble Lord has used in this instance. I should like to read carefully in Hansard what has been said this evening. I am afraid that I shall not be making a full reply on this amendment, but I shall consider carefully what the noble Lord has said on this and the previous amendment, and consider what should be done. In the light of that, I hope that the noble Lord will withdraw the amendment.
Lord Wedderburn of Charlton: I am greatly obliged to the Minister for those words. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 76 to 79 not moved.]
Clause 17, as amended, agreed to.
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 80:
After Clause 17, insert the following new clause:
("Majority required in a ballot
.For paragraph (b) of section 226(2) of the 1992 Act there shall be substituted the following—

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"(b) the majority of those voting in answer to the question applicable in accordance with section 229(2) to the industrial action of the kind to which the act of inducement relates, answered "yes" to that question;".").
The noble Lord said: I move this amendment at the request of the Law Society, especially its employment committee, and a number of my colleagues at the Bar. I did not know about this issue until they informed me about it. I can put the matter shortly. Most lawyers had assumed—I am taking the Law Society's account which I believe to be true—that if one had a ballot in which one had to separate the two questions, as one must now; that is, "Are you prepared to strike?" on the one hand, and "Are you prepared to take industrial action short of a strike?" on the other, the Bill's demand for a majority vote related to the one and then to the other.
I refer to proceedings before Mr. Justice Schiemann in May 1992. I am told by some of my informants that these were interlocutory proceedings, and one will often find judges saying, "Well, we have had to do this quickly", and that is no fault of the judge, especially as it was a Friday. Mr. Justice Schiemann was faced with the argument that although a majority, by a very few votes, had been found on the first question, the second question had been lost, however calculated, and therefore when one added up the number of "good" ballot papers, it was found that the majority cast internally for the first question was not a majority of all those who had voted. The argument was ingenious. I had not seen it nor do I believe had many people. It was that the ballot means the whole of the returned ballot papers, which are proper ballot papers, and that there must be a majority on each of the questions. It is common ground that prior to that decision no one believed that that was the case.
It is my belief that the Law Society has made representations. If not I apologise for not sending a letter, which perhaps I should have done, but these are recent matters. The amendment may be phrased badly but it changes the words relating to the question and provides that there must be a majority of those voting on each of the appropriate questions. At least, that is the intention.
I believe that that is fair. The common understanding before the case of May 1992 was fair. I thought that it was right legally but Mr. Justice Schiemann said that it is not. If there are two separate questions, as here, it may be that different shifts of workers are affected in different ways within the balloting groove and it seems absurd to demand that the majority to be required on one question or the other must be measured against those voting overall when the other question may not be attractive to anyone. One could have a good majority in respect of question A, which is cancelled out by a large vote against question B. I do not believe that that is what the Act meant and I hope that the Minister will look at the matter carefully. Those who asked me to deal with it, which I have tried to do briefly, will be grateful. I beg to move.
Viscount Ullswater: I listened with interest to the noble Lord's explanation of the amendment. I
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understand that the Department of Employment was aware of the circumstances of the case which he quoted.
Ever since the balloting requirements were first made part of the law in 1984 a union has, quite rightly, had to obtain majority support for industrial action from those voting in "the ballot" about that action. That law has allowed unions to put two questions to voters in any particular ballot, asking whether they are prepared to take part in either strike action or action short of a strike.
The point, of course, is that the union has chosen to ask two questions as part of the same ballot. That is a union's free choice. It would be open to the union to adopt a different tactic. It could ask each of the two questions individually, treating each as a separate ballot and having separate voting papers for each question.
Where both the questions are covered in one ballot, however, the union must be prepared to live with the potential consequences of its choice. In the circumstances which the noble Lord described, the voters in the ballot did not produce a majority in favour of either strike or non-strike action, as the case may be. Accordingly, they had not given the union a sufficient mandate to allow it to have the protection of statutory immunity for calling on them to take part in either strike or non-strike action.
We are not dealing here with any kind of real anomaly in the law but with its proper effects and results. While I appreciate that the application of the law may have come as a surprise to the union involved in the case that we have heard about, a moment's reflection shows that the court's judgment was quite correct. I hope, therefore, that the noble Lord will withdraw the amendment.
Lord Wedderburn of Charlton: Many people will be disappointed with that reply. The Law Society informed me that the Minister's interpretation, which he now latches on to—I suppose that he must take fortuitous gains wherever they come from—was not generally understood by practitioners in the field, including the Electoral Reform Society. The Law Society continues:
"If correct, the interpretation would require unions to so organise their affairs as to be able to argue that each separate question is a separate ballot".
That is what it comes to. It will put the unions to greater expense because they will have to operate two ballots with two questions instead of one ballot with two questions. The trade union has not chosen to operate in this way because until 1988 it was able to put what I call a rolled-up question; namely, will you strike or will you take industrial action short of a strike? The Government then banned that. The reason that the problem is new is that the banning of the rolled-up question demanding two questions gave rise to this problem.
I suspect that the Minister will not look again at this matter because he knows about it. Many people will be disappointed. Many lawyers, who are not of my persuasion in any other regard, will regard it as extraordinary that the Minister will not look again at

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the matter. However, it will mean that the union must hold two ballots instead of one, which is regrettable. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 18 agreed to.
Clause 19 [Scrutiny of ballots]:
Lord McCarthy Lord McCarthy moved Amendment No. 81:
Page 32, line 29, leave out from ("ballot") to end of line 31.
The noble Lord said: We now turn to another character—a new kind of scrutineer who looks after ballots. Under Clause 19 that scrutineer must be appointed and, under his terms of appointment, he not only has to carry out the functions of running the ballot, but he must also prepare a report. That must be done:
"as soon as reasonably practicable after the date of the ballot and, in any event, not later than the end of the period of four weeks beginning with that date".
The amendment says that we should not insist upon the last part of the provision; namely:
"in any event, not later than the end of the period of four weeks beginning with that date".
In other words, it would just be, "as soon as reasonably practicable".
If the Committee looks at what the scrutineer is supposed to report on, it can be seen that that is quite extensive. He has to say that:
"there are no reasonable grounds for believing that there was any contravention of a requirement imposed by or under any enactment in relation to the ballot"
and they are quite extensive now. He has to state:
"that the arrangements made with respect to the production, storage, distribution, return or other handling of the voting papers used in the ballot, and the arrangements for the counting of the votes, included all such security arrangements as were reasonably practicable".
I suppose that I should not say that the Minister was astonished by the phrase "reasonably practicable" the other day, and here it is in the Bill. It goes on:
"for the purpose of minimising the risk that any unfairness or malpractice might occur, and … that he has been able to carry out the functions conferred on him under section 226B(1) without any interference from the trade union or any of its members, officials or employees; and if he is not satisfied as to any of those matters, the report shall give particulars of his reason for not being satisfied as to that matter".
We argue that there are certain circumstances in which the four-week limit could be an embarrassment both ways. It might be thought by the scrutineer that he has four weeks and does not need to report in under four weeks when, in fact, he should report as soon as possible, as soon as is "reasonably practicable". On the other hand, there may be circumstances in which four weeks is not long enough and in which the scrutineer may feel that he needs longer than four weeks to do a good job. We do not understand the rationale of the four weeks. Surely, "as soon as reasonably practicable" is sufficient. I beg to move.
Viscount Ullswater: The noble Lord has posed a number of questions about the justification for requiring, as a matter of course and as part of the terms under which a scrutineer for an industrial action will be appointed, that the report on the ballot be produced within four weeks of the date of the ballot.
I think that it may be helpful if I explain exactly why these arrangements are proposed. The fundamental purpose of the scrutineer for industrial action
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ballots is to produce a report on the conduct of such a ballot, and to make that report available not only to the union itself, but also, on request, to union members and employers. Existing law requires that a union must make its first call for industrial action to which a ballot relates, and that some part of the industrial action itself must take place within four weeks of the date of the ballot. There are of course no equivalent provisions in respect of action following a union election, political fund or merger ballot.
A scrutineer may well be able to deliver the required report to the union quite soon after the relevant ballot is held. However, it would defeat the fundamental purpose of the scrutiny process if a union was allowed complete discretion as to when a scrutineer's report was made, and therefore made available to union members and employers on request. It would have little value, even if it revealed that the ballot might have been improperly conducted, were it to become available only long after the industrial action had started—and perhaps only after the action had ceased.
The selection of the particular period of four weeks allows a union which wishes to wait until the scrutineer's report is available before its call for industrial action to do so without risking passing beyond the four week limit and finding that it had to conduct a fresh ballot.
I should add that the provisions of the law will not require a union to wait until a scrutineer's report is available before proceeding to organise industrial action following a ballot. We accept that such a requirement would risk removing a significant proportion of the four weeks presently available in which a union must make its first call for action following a ballot.
I hope that the noble Lord will be reassured by my explanation of why the particular provisions the amendment seeks to remove are a necessary ingredient of the requirements for industrial action ballot scrutiny. Given that, I hope that he will withdraw the amendment.
Lord McCarthy: I shall probably have to withdraw the amendment, but I must say that it does not seem to me that the Minister has explained the matter very well. I do not see why because the union is given four weeks to decide whether to have a strike if it has an affirmative ballot, that figure of four weeks should be taken away and applied to the scrutineer's report which is a totally different exercise. If the Government wanted to have a figure, they could have some other figure. We do not see why there has to be a figure at all. Why not just have the words,
"as soon as reasonably practicable"?
As I understand the position, the only argument that was made against that was that it would give discretion to the union. I wrote those words down. There is a slight sign of enormities again. It is being suggested that the union would in effect manipulate the scrutineer and say to him, "Now look here, my dear chap. The term 'as soon as reasonably practicable' means the year after next". I do not see why the union should do that; but why should the scrutineer take any notice, anyway? It says in the

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statute that he is independent and has terms of reference in relation to making a report on a ballot which include the term,
"as soon as reasonably practicable".
If the union claimed that term meant a report did not have to be made until after the following Christmas, the scrutineer would say, "Nonsense. You do not have total discretion. My terms of reference say a report must be made,
"as soon as reasonably practicable."
I do not see why the figure of four weeks is mentioned. Nevertheless I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 82 to 85 not moved.]
Clause 19 agreed to.
Viscount Goschen: I beg to move that the House do now resume.
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Moved accordingly, and, on Question, Motion agreed to.
House resumed.

British Railways Bill
Returned from the Commons with the amendments agreed to.

Cardiff Bay Barrage Bill
Order recommitting the Bill to a Committee of the Whole House vacated; Bill referred to the Examiners in respect of Amendment No. 2 made by the Select Committee; a message was ordered to be sent to the Commons to acquaint them therewith.
House adjourned at eleven o'clock.