HL Deb 18 March 1993 vol 543 cc1551-606

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.


Clause 13 [Right not to be excluded or expelled]:

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 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 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.

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 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 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 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 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 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.

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 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 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 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: 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 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 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 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
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.
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.
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 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 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 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 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 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 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 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 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 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 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 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.

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 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 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 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 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 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 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. 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. 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 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 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. 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.

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
Abinger, L. Arran, E.
Allenby of Megiddo, V. Ashbourne, L.
Archer of Weston-Super-Mare, L. Astor, V.
Belhaven and Stenton, L.
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.
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 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 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 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.

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 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 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 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 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 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 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". 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 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 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.

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