Trade Union Reform and Employment Rights Bill

HL Deb 18 March 1993 vol 543 cc1618-68

House again in Committee on Clause 14.

Lord McCarthy moved Amendment No. 55: Page 28, line 14, after ("withdraw") insert ("or renew").

The noble Lord said: This is a minor, tiny amendment that befits this time of night. Under the Bill the individual member must be informed with appropriate notice in writing of a proposed increase in subscriptions. He must agree to renew at the new rate and he must be told that he can withdraw from the check-off arrangement at that time or, as is stated in the Bill, "at any time".

Our amendment desires merely to establish a balance of information. We believe that the legislation should state not only that the member can withdraw but also that he can renew. It should state that he can withdraw at any time or renew at any time. It is a small balancing act. I beg to move.

Baroness Denton of Wakefield

I understand the argument put forward by the noble Lord but I suggest that the amendment is unnecessary. At the moment the law does not give an individual any right to withdraw from check-off arrangements except where he or she resigns his union membership. Clause 14 will provide individual trade union members with the right to withdraw from check-off at any time. There is no equivalent statutory right to pay union subscriptions by this method, nor have we any intention of introducing one. Check-off arrangements, quite rightly, are a matter of voluntary agreement. The amendment, therefore, serves no practical purpose. As no right to pay trade union subscriptions through the check-off exists it is a nonsense to remind people of a "right" to renew their consent.

The holding of an authorisation from a worker by an employer does not mean that the employer must operate check-off arrangements. Unless he has entered into a contract to the contrary the employer remains free to withdraw check-off arrangements at any time. If a renewed authority were to be submitted to an employer it would no more place any obligation on the employer to continue operating check-off arrangements than an existing authority. I hope, therefore, that the noble Lord will not press the amendment.

Lord McCarthy

I find it difficult to follow the argument. Perhaps it would help if we did not use the word "renew" but used the word "continue". Surely that would be a statement of the fact that the individual member could withdraw or continue. It would be a description of the situation that existed. The Minister has become involved in whether there is a right to renew or withdraw. Surely there must be a right to continue, so would the Government feel any different if we were to use such a word?

Baroness Denton of Wakefield

It would not change the issue. It would not place an obligation on an employer to continue to operate the check-off arrangements. It would be misleading because there is no statutory obligation on the employer.

Lord McCarthy

I still do not understand. What is the statutory obligation on which the employer leans in order to continue? If the member receives a notice informing him that he can withdraw but he does not do so, the check-off continues. Presumably that is perfectly lawful so why cannot they be told that it is lawful to continue?

Baroness Denton of Wakefield

I am saying that the right to withdraw is the privilege of the individual. The arrangement with the employer and the union on check-off is voluntary.

Baroness Turner of Camden

I do not understand. Surely the individual has the right to renew or not to renew. He is simply told that he has that right. I cannot understand why the Minister should believe that it is not voluntary because he is given the opportunity to renew or not to renew.

Baroness Denton of Wakefield

I am sorry if my reply is not clear. I am trying to explain that because the right of the employer to participate in check-off is voluntary were he to offer the right to renew or to continue the employer could make a decision separate to that.

Lord Wedderburn of Charlton

Would not my noble friends help the Government more if they said that when the worker is told that he can withdraw rather than renew or withdraw he is more likely to withdraw?

Baroness Denton of Wakefield

I appreciate the noble Lord's attempt to be helpful. Again I stress that that arrangement is with the individual.

Lord McCarthy

Would the Minister allow us to state that the individual member could decide to withdraw or not to withdraw? Would that be acceptable?

Baroness Denton of Wakefield

We would not think that that brought anything to the clause.

Lord McCarthy

All the same, we shall try to bring it to the clause on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 56 to 59 not moved.]

On Question, Whether Clause 14 shall stand part of the Bill?

Baroness Turner of Camden

I wish to put a few remarks on the record. In my view the clause is totally unnecessary and quite vindictive. It requires that no deduction should be made from pay for the purpose of union subscriptions without individual written authorisation. No one disagrees with that. As I said on Second Reading, my own union operates check-off arrangements with employers and has always done so on the basis of signed individual authorisation from members. Even so, there are members who would prefer not to have their subscriptions deducted in that way. Usually the reasons is that they do not want the employer to know that they are union members. Arrangements are then made for them to pay direct to the union. That is in order and I was surprised to learn tonight that the noble Baroness, Lady Denton, believes that if an individual opts out of check-off he or she automatically opts out of union membership. That is not my experience.

Check-off arrangements have developed on the basis that they would be of benefit to both employers and the unions. Employers did not want people going around collecting subscriptions and unions welcomed the opportunity to be relieved of the administrative problems of keeping tabs on collectors and finding new collectors when others gave up.

We have absolutely no objection at all to securing written individual authorisations. What is so outrageous about the proposition contained in the Bill is that there must be a three-yearly check. I see no reason—this has been said by my noble friends in debate—why that should be done for trade union subscriptions and not for other deductions such as deductions for charities or welfare facilities which are quite common in some establishments.

The Government seem to believe that there is some kind of individual right here. I must say that it does not seem to be perceived as that by individual union members. I recently received an extremely irate letter from a NALGO member who was querying that provision in the Bill. He said that he pays to a number of other organisations—charities and a welfare club —through check-off and he queried, as I have done, why the Government have decided to interfere in the arrangements that he had made with his union and his employer. It is clear that he does not regard this as being provided with an extra right. He believes that the Government are interfering with his right to make an on-going arrangement to have the deductions made.

There is an apparent requirement hidden away in the schedule, to which we shall come later, which appears to stipulate that unions and employers have one year from the passage of the Bill to collect fresh authorisations and they have to do that again three years later. That is quite an horrendous requirement. There are about 6.5 million employees currently paying by check-off from whom authorisations will have to be obtained, even if they have only recently given them. It is no wonder that employers are unhappy about this proposition. Why are the Government doing this? Nothing that the noble Baroness has said this evening convinces me that there is a justifiable case for it.

There seems to be nothing in the way of defalcations, fraud or legal cases that have led them to that conclusion. Indeed, the cases quoted by the noble Baroness were all cases which would occur even with the three-year check-off because as far as I can see, fraud was committed by individual employers.

I can only hope that if the Government persist with this and it reaches the statute book as they intend, it will have the reverse effect from that which they desire. I can well remember legislation about the political fund and the requirement that all unions should ballot their members on whether or not they should have a political fund. The media gurus prophesied that my own union would almost certainly lose its political fund. It was believed that our members would vote almost unanimously against having a political fund. Instead, the union had perforce to campaign to keep its fund and did so very successfully. Not only did the ballot go overwhelmingly in favour of keeping the fund, but we ended up with more people paying the political levy than we had had previously.

The Government underestimate the degree to which their constant sniping at unions is resented. It may well be that as a result of this legislation, if it becomes effective, the result will be to increase union membership rather than the reverse because the unions will have to campaign to ensure that their members maintain check-off. That is not what the Government intend but it would be a just outcome. However, that is speculation. As it stands, the clause is unnecessary. It is an administrative burden on employers and unions alike. No case has been made out for it and I do not think that it should stand part of the Bill.

8.15 p.m.

Baroness Denton of Wakefield

The provisions of Clause 14 have been discussed at some length. The main issues have already been fully aired and I do not therefore intend to delay your Lordships' consideration of other important clauses in the Bill by simply repeating the many arguments that we have already heard.

This clause will ensure that all employees enjoy, as a legal right, the protection which many employees already enjoy as a matter of good practice. It will also give individual trade union members the legal right to withdraw from check-off arrangements at any time without resigning their union membership.

The clause further provides that individual consent to check-off must be reaffirmed at intervals not exceeding three years. It has been argued that such a provision is unnecessary. I do not accept those arguments.

Taken as a whole the provisions of Clause 14 will provide individual trade union members with valuable new rights and will provide a remedy if these rights are not upheld. I urge the Committee to support the Motion that this clause stand part of the Bill.

Baroness Turner of Camden

It is not my intention to press this matter to a vote. Therefore, we shall not press our opposition to a Division. On the other hand, I am grateful to have had the opportunity to place on record the Opposition's grave anxieties about this clause. I have no doubt that we shall return to the matter with other amendments on Report.

On Question, Clause 14 agreed to.

Clause 15 [Extension of right not to be unjustifiably disciplined]:

Baroness Turner of Camden moved Amendment No. 60: Page 30, line 18, at end insert ("provided that the activities so undertaken could not be held to be damaging to the best interests of the union and its members." ").

The noble Baroness said: This amendment is intended to insert into the Bill a provision that an individual could be dealt with under disciplinary rules if the activities undertaken by the individual were damaging to the best interests of the union and its members.

I read carefully the Committee stage proceedings in the other place. It seemed to be accepted by the Government that if an individual undertook an activity which was really damaging to the union, he could be dealt with under disciplinary rules. There are instances of individuals deliberately infiltrating trade unions in order to be as damaging as possible. There are even organisations specialising in such activities. Sometimes they will provide funding and general support for such people.

In the Commons it was asked whether, if it could be shown that an individual had joined a union simply to undermine it and if it could be proved that that is what was done, that would be grounds for disciplinary action, even expulsion. The Minister's reply on behalf of the Government on that occasion was in the affirmative.

There are instances which arise when individuals —and we know this happens—are found to be guilty of racial or sexual harassment of other members. I have already raised that briefly in our discussions on earlier amendments. Surely if the union continues to countenance that kind of activity on the part of individual members without doing anything about it, it is clearly damaging to the general interests of the members and places the union in an entirely wrong and very bad light.

There should be provision in the Bill for that kind of action to be dealt with under disciplinary procedures. That is what Amendment No. 60 provides. We are seeking to write into the Bill what we understand has already been conceded by the Government in the other place as being correct and proper use of union disciplinary rules. I beg to move.

Viscount Ullswater

I am grateful to the noble Baroness for explaining the purpose of the amendment but I find it unacceptable because I believe that it undermines the provision in the clause which it seeks to amend.

The Government have introduced many reforms aimed at improving and enhancing the rights of ordinary trade union members. Some of these rights enable the individual member to require certain action of his union; for example, he is entitled to a copy of the scrutineer's report on a union ballot on request; under the new provisions in Clause 9, he may request an additional copy of the statement of the union's financial affairs.

It is important that the individual can exercise any such rights free from the threat of union discipline for so doing. New paragraph (j) of this clause ensures that the individual has this protection.

The amendment proposes that such protection will not apply when the statutory obligation which the union is required to fulfil is against the best interests of the union and its members. How can a statutory requirement be against the interests of those whom it is designed to protect? We surely cannot introduce rights to protect the interests of union members and then allow their ability to exercise those rights to be undermined by the fear that they may be disciplined if they do.

It may be that the concerns underlying this amendment are the same as those expressed in Committee in another place: that is, that the provisions will protect a union member whose conduct genuinely is against the interests of the union; for example, if an individual joins a union and then proceeds to attempt to undermine its members from the inside, possibly with the intention of persuading them to join another union of which he is also a member. Concern was expressed that the union might be prevented from disciplining him because of paragraph (g), which prevents discipline on the ground of membership of another union.

Let me reassure the Committee on this point. In that example the conduct is certainly not mere union membership, and is therefore not covered by that subsection. Similarly, any other conduct that is not covered specifically by the other unjustifiable provisions may lawfully be invoked by a union wishing to apply its disciplinary procedures. I hope that will reassure the noble Baroness and that she will be persuaded to withdraw the amendment.

Lord Stoddart of Swindon

I really must spend a couple of minutes on this amendment, which I support. Just exactly what sort of people do the Government think trade unionists are? This clause seeks to show trade unionists as thugs and bullies and as people who intimidate their colleagues at work and elsewhere when the opposite is the truth. People join trade unions in order that they can work together for their common good. In my experience the sort of people who are being legislated for in this clause simply do not exist.

I cannot understand why the Government have to regulate voluntary organisations—that is what these organisations are—in such a tight way. In any event, if any trade unionist behaved in the way that is being suggested in this clause he could be guilty of criminal offences. He could be guilty of conspiracy, intimidation and of a host of offences. Why on earth must we have special regulations and special statutes to regulate the activities of people who simply work together to protect their own interests? The trade union movement which the Government have in mind exists only in their own imagination and not in practice.

Viscount Ullswater

Section 65 of the 1992 Act has proved to be useful because it provides for members of trade unions not to be unjustifiably disciplined. This clause adds another few measures to the provisions of Section 65. They are quite justifiable.

Lord Stoddart of Swindon

That is precisely what I am saying. Various Acts have placed further burdens on trade unions and have regulated them as no other voluntary organisation is regulated. Here we have five further regulations to govern their conduct. In virtually every case that I know of, the conduct of trade unions has been reasonable and often exemplary.

Baroness Turner of Camden

I welcome the assurances given by the Minister that the type of activity to which I referred when moving the amendment will be regarded as the type of activity which could be dealt with under the disciplinary rules of unions. If I may say so, that is similar to the kind of assurances that were given in another place, and I welcome them. I have tabled the amendment because although we welcome the Government's assurances, given here and in another place, they are not in the Bill. It is because they are not in the Bill, and therefore it could be assumed that certain types of activity would not be capable of being dealt with through disciplinary rules, that we decided to table this amendment.

There is, of course, no point in pressing the amendment at this late hour in the Committee proceedings this evening. While I welcome the assurance we have been given, I would feel happier if there were an assurance on the face of the Bill so that unions would be aware that in the kind of cases I have mentioned they were free to utilise their disciplinary procedures. However, having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Wedderburn of Charlton moved Amendment No. 61: Page 30, line 18, at end insert: ("(1A) After subsection (2) of section 65, there shall be inserted— (2A) Paragraphs (a) and (b) shall not apply where the strike or other industrial action complies with section 219 to 235 of this Act.".").

The noble Lord said: I am moving this amendment for one reason—to have the Government's response to it on the record. We are discussing the position where a union may not use its lawful rules in order to discipline a member who opposed and refused to conform to the decision taken within the union on a strike which was completely lawful and complied with Sections 219 to 235 of the legislation. I seek to ascertain that in that situation the union would have the right to operate its rules without the threat of actions for compensation.

I know we have discussed this matter on previous occasions and in a sense it reappears in the next amendment. I wish to comment on two matters that the Minister has just referred to as they are relevant to the amendment. First, he said that Section 65 has proved useful in many cases. Will he mention those cases? Secondly—this is the case with all Members of the Government—he took the matter out of the realm of fact or history when he asked how statutory provisions can be against the interests of the members. I hope I have written down his words correctly. With great respect to the Minister, I must inform him that those are the words of Big Brother. I am sure the Minister will not like being referred to in that way. It is claimed that once a provision is enshrined in statute it cannot be against the interests of members. That is the philosophy of Section 65. To extend that philosophy is a serious matter.

In moving this amendment I seek to ensure that a union that is taking action within its lawful rules in the area of lawful strikes or industrial action may be permitted to operate those rules to the full and will not be under the threat of the provisions of Section 65. I beg to move.

Viscount Ullswater

It seems to me that the Opposition sometimes appear to claim that they accept many of this Government's reforms of industrial relations and trade union law that have been passed since 1979, but amendments such as this confirm that they remain steadfast in their resistance to some of the important rights and protections which we have given trade union members.

In simple terms, this amendment seeks to restore the unions' freedom to discipline, with impunity, members who decide that they wish to honour their contract of employment and not take part in industrial action. In direct terms, unions are to have some of the freedom they enjoyed before our Employment Act 1988 so that they can, once again, have a free hand to force individual members who would otherwise prefer to keep working, or to cross picket lines, not to do so. As such, we find it unacceptable.

Baroness Seear

I am sorry to interrupt the Minister. I realise that, in a way, we are going back in history, but he refuses to allow the unions the right to discipline members who continue to work after strike action, that action having been taken after a legally required and legally applied ballot. If the result of the ballot is a decision not to strike, I take it the Government would be only too pleased if the unions disciplined people who did strike. If the Minister accepts that, how can he possibly deny that unions should also have the right to discipline people who, when the ballot is in favour of a strike, refuse to go on strike? The Minister cannot have it both ways.

Viscount Ullswater

This is what one might call a triangular argument. The employer and employee have a contract between them. The trade union is provoking the breaking of that contract. If it does so in an organised way the union can have immunity from the law. What we are doing and what we have done is to make certain that those who wish to honour their contract can continue to do so. Those who, having taken steps, quite properly, wish to indulge in some industrial action then they effectively break their contract. That is the state of the law at present.

8.30 p.m.

Lord McCarthy

Will the noble Viscount admit, at half past eight at night, that, because of what he has just said, so far as concerns the individual worker in this country there is no right to strike and the penalty for striking is dismissal on the basis of breach of contract? Is that the position?

Viscount Ullswater

I did not go as far as to say that. The noble Lord puts into my mouth words that I did not say. However, the individual employee certainly has the opportunity to honour his contract and of not being unjustifiably disciplined by his union. That is what we are talking about with the amendment.

Baroness Seear

Then what is the point of allowing a ballot in any case because the Government will say that the result of the ballot can only be applied if the action is in line with what the Government want and not what the ballot has shown?

Viscount Ullswater

I am not certain that I can follow that argument of the noble Baroness. As I said, we regard it as unjustifiable for a union to impose a disciplinary penalty on a member who has decided that he would rather honour his contract of employment and continue to work or to cross a picket line rather than take part in industrial action. It is neither here nor there why the individual has reached such a decision. The point is that he should be free to do so without the fear that he could be left defenceless if his union tries to coerce him into joining the action or refusing to cross a picket line by imposing some form of penalty upon him.

The amendment is also unacceptable because it introduces what would be both a novel and unfortunate confusion between the law which can protect the organiser of industrial action and the situation of the individual who takes part in such action.

A worker who takes industrial action chooses to break his contract of employment, or otherwise seeks to bring pressure to bear on his employer. Our law gives all employees complete freedom to take such action. To some extent the law constrains an employer's freedom to respond but it leaves him with sufficient means to do so. That is as it should be.

The amendment would mean that where a union had the protection of the statutory immunities for organising industrial action it would also have complete freedom to discipline members who did not want to take part in the action. That is so much the better for the unions but so much the worse for those individual members. The members may feel that in the particular circumstances they wish to honour their obligations to their employer, or they may feel that they do not wish to risk the loss of pay or even dismissal which could follow from their taking part in the action. The amendment, if accepted, would put them back in the situation which applied before 1988. It would leave them at the mercy of disciplinary action by their union, designed to punish them for being loyal to their employer, or to their own best interests as they see them.

I expect that the noble Lord will not accept my argument. I hope, however, that he will appreciate that on this matter our policy is clear and that he will withdraw the amendment.

Lord Wedderburn of Charlton

I am grateful to the Minister. It is not so much his argument that I find displeasing as his grounds for it, especially the factual grounds. For example, we shall come later to the question of breach of contract in industrial action. I merely say now that we are in a massive minority among labour law systems in advanced countries in regarding the worker who leaves his employment in lawful industrial action as breaking his contract. I hesitate to say it, but I feel that the Minister has not been well advised on this matter.

Simply to repeat English common law, on the basis of what was said in 1825 or thereabouts, which still says that the worker who leaves his post on any occasion whatever without permission is in breach of contract, even a lawful strike, is labour law of an antiquarian character. We shall debate that issue later. That argument reveals that, if the individual employee is not protected in some way—and I believe that one of the best ways is to act collectively through a trade union—very often he is in a position in which he lacks power in making what we lawyers call a contract.

It is no good referring to what individual contracts say. We are concerned with the justice of the position. It seems totally unjust. I suggest that my noble friends use the phrase "the majority of members" instead of "union" because that is the issue. The majority have used all the devices that legislation puts before them, leapt across all the hurdles with ballots and have ensured that their rules are lawful. The Minister does not seem to understand that the clause does not make the rules unlawful. The Government dare not do that, for various reasons. The clause simply imposes compensation if unions apply what the Government regard as terrible and unjustified discipline.

The union can look at its rules and ensure that they are lawful. It can do everything that is required of it in calling a strike. One of the rules may say that if someone continues to object to union policy, which is lawful, for a specified period a penalty can be imposed. Every association in the world does so. The Government, however, say that that cannot be the case because the employee may have to cross a picket line, even though the picket line is lawful. The individual is perfectly free not to strike, just as the union is free to say that the majority of its members no longer wish to associate with that individual member.

I repeat that Lord Diplock, in an appeal case in 1983, said that freedom of association must be mutual. Lord Diplock was no Bolshevik, but he saw very clearly the character of freedom of association, which the Government are now infringing at every turn.

We shall return to these matters, but it is worth getting the Government's reply on paper each time. I know that it will not change, but let us say for once just what the position is instead of sometimes, as in the past, passing over some of the measures that the Government have placed on the statute book. To reject the amendment is a very serious step which one day the Government may regret. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 15 agreed to.

Lord Wedderburn of Charlton moved Amendment No. 62: After Clause 15, insert the following new clause:

("Annual report

.The Secretary of State shall publish an annual report setting out the reports or other documents relevant to the law relating to freedom of association and other provisions affecting trade unions in the United Kingdom published by bodies whose international instruments the United Kingdom has adopted or ratified, including the Council of Europe and the International Labour Organisation, together with the United Kingdom's replies to such documents or bodies.").

The noble Lord said: The amendment covers similar ground to the previous amendment. I shall not try to put forward propositions which would find agreement from the Minister about where we stand in respect of each of the important international instruments in the world of labour relations. I took it earlier that the Minister agrees that they are important.

Primarily, those instruments are the Council of Europe Social Charter of 1961 and the ILO conventions, especially Conventions 87 and 98. I leave aside European Community sources because I do not believe that they fall into the same category.

This may be a point which is common ground. One of the reasons why students and others study international instruments of the kind I have described less in this country is that those international instruments, such as the ILO conventions, do not enter into our laws, even theoretically, merely on being ratified. They enter into our law only if we pass a statute admitting them to the positive rubrics. It is perhaps for that reason, and because in most continental jurisdictions when the conventions are ratified they automatically enter, at least theoretically and often more than theoretically, into local law, that we are regarded as very odd in that respect. Perhaps that is one of the reasons why people have not studied the ILO conventions, the Council of Europe documents and other similar documents sufficiently in the past.

The position has begun to change in the past five to 10 years. There has been a growing interest in those documents, partly because many people, including many Members of this Chamber, have taken a special interest in the European Convention on Human Rights which, in Article 11, deals with the right of association. Whereas the European Convention on Human Rights is angled towards individual rights, understandably the Council of Europe social charter is angled towards collective rights; and similarly so is the ILO.

The clause provides that the Government publish a document, perhaps annually or at whatever suitable period, outlining where we stand. The Government cannot have much objection to doing that because they have to do so for the Commission in the Community. The Government published their first contribution in the recent document, No. 511, for the Commission setting out how we were progressing a year after the Social Charter of the Community. However, I do not speak on that today. The document would be a parallel type of document stating our progress in respect of international standards. It does not commit the Government to anything. It saves a little time by setting out the arguments and indicating where we stand.

I give one example. Today we have already today encountered a difficulty. I am aware that the Government have already put forward replies after the 1992 report to the committee of experts. I am also aware that the current practice of the United Kingdom Government and experts is not to publish them until the experts publish their report. I apprehend that that is not true of all governments and that experts are willing to have some parts published previously.

Taking that example, I should like to have before us a document which indicates in a couple of pages the arguments between the Government and the experts on Section 65 of the 1992 legislation. It would save time. I do not seek to pull a fast one on the Government. That procedure would test the arguments both ways. It would be useful to have the material before us. At present that is not always the case.

I believe that such a publication would contribute to a greater transparency and publicity for those international instruments which are of considerable importance in the world in which we live when the position of large numbers of working people is less secure than it has ever been, more difficult and more deserving of fundamental human rights, of which those documents from the European conventions through to the ILO comprise. I beg to move.

Baroness Turner of Camden

I rise to support the amendment which requires the Secretary of State to publish an annual report setting out reports or other documents affecting workers and unions in the UK, published by the ILO and the Council of Europe.

Plainly it is an excellent idea. On this side of the Chamber we have often claimed—I believe that we are right —that the Government are in breach, at least in spirit, of ILO conventions. My noble friend thinks that they go beyond that; I am sure he is right about that, too. The Government may insist that that is not so even though the ILO committee of experts has condemned the UK's legislation on at least nine counts to my knowledge as being in breach of ILO Convention 87 which gives the right to organise and for unions to draw up their own rules and constitutions free of state interference. The convention also includes the right to take industrial action. The UK has ratified the convention.

It would be useful for Parliament to know what the ILO thinks about legislation introduced on industrial relations. I see no reason why an annual report should not be made. Why should not people, in particular Parliament, know about ILO conventions and about the ILO's reaction to industrial relations legislation in this country? Unfortunately, very little publicity is given to ILO declarations and very few people know about the rights which are enshrined in those conventions. There has to be a level of parliamentary accountability in that area. For those reasons, I support the amendment.

8.45 p.m.

Viscount Ullswater

I have listened with interest to the points which the noble Lord and the noble Baroness have put forward on the amendments. However, as they will anticipate, I believe the amendment to be unnecessary.

The amendment would add a new clause to the Bill requiring that the Secretary of State publish an annual report setting out the reports or other documents on all provisions affecting trade unions in this country. That means not just on the law relating to freedom of association, but on all provisions affecting trade unions which issue from such international bodies as the ILO and Council of Europe, whose instruments the UK Government have ratified or adopted, together with the UK Government's replies to those reports or other documents.

Perhaps I may begin by once again refuting the noble Lord's allegations that the Government's legislation somehow represents an erosion of rights in this country. On the contrary our previous legislation, and the Bill now before us, is all about reinforcing rights and protections: the rights and protections of working people, of individual trade union members, of members of the public, of employers.

We are not doing anything underhand in this. The Government have proceeded openly, in full public view, and the electorate's verdict on term after successive term reflects the wide degree of support that its policies on those matters command.

Secondly, I should make clear that the Government entirely recognise the importance of our international commitments. I can assure the noble Lord that we do take very seriously indeed the obligations we have entered into under ILO conventions which we have ratified and articles of the European social charter which we have adopted. But unlike the noble Baroness, Lady Turner, we firmly believe that nothing in its legislation or practice deviates in any way from our commitments under those instruments. We consider every instrument scrupulously before we ratify or adopt it, so that we can be quite sure we are wholly in compliance. We set the highest store by the rule of law at national and international level and are always at pains to comply with all the requirements of international bodies.

Quite contrary to the impression given by the noble Lord, the ILO has not "condemned" us for having legislation which provides remedies for union members who are subject to unjustifiable discipline by their union or which allows employers to respond to those who choose to take industrial action against them. Where ILO committees, such as the committee of experts or the committee on freedom of association, have made observations on aspects of UK law, the Government have always responded.

Similarly where the committee of experts of the Council of Europe has reached a negative conclusion on UK compliance with a particular provision of the European social charter the UK has always responded, and we will continue to do so through the appropriate channels, and to maintain a dialogue on all relevant issues included in the area of freedom of association and other provisions affecting trade unions to which the amendment refers.

However the amendment is simply unnecessary. It is unnecessary because all the material in question is already in the public domain. The reports of the committees of experts of the ILO and the Council of Europe, which comment on the UK's and other member states' application of relevant ILO conventions and of relevant provisions of the Council of Europe social charter, are published annually and made widely available. Similarly the UK's replies to these, which respond to any criticisms raised, are automatically copied to the CBI and TUC who are free in turn to copy them to anyone else they choose.

Once they have been considered by those international bodies, the Government's comments are moreover fully reflected in the bodies' conclusions which are also published and made widely available. Similar procedures apply with other ILO reports where trade union matters are covered, in particular the report of the ILO committee on freedom of association, which is published three times a year. Its conclusions on all cases considered take full account of comments received from governments and their social partners, including, where a UK case is involved, any comments from this Government and from the TUC and CBI.

Perhaps by way of a practical example of the fact that there is no real difficulty about obtaining access to the reports and other documents to which the amendment relates, I can tell the noble Lord, Lord Wedderburn, that recently I read an article in the Industrial Law Journal, the December 1992 issue, vol. 21, No. 4. It was entitled, "UK Employment Law and the ILO: the Spirit of Co-operation?" The first article in the journal was by the noble Lord, Lord Wedderburn, entitled "Inderogability, Collective Agreements and Community Law". I cannot say that I studied it as fully as I should have done.

I am indicating by this that the articles referred freely to exchanges of views between the ILO committee of experts and the UK Government. At no point did the authors indicate that they had had any trouble obtaining the documentation to which they referred. I believe that they cited the ILO library in London as the source of the documentation.

In short, all the information which would be covered by the amendment is already in the public domain for anyone who is interested. There is simply no need to publish a report of the kind that the noble Lord has in mind. I believe also that it would perhaps not be the best application of public funds and I ask the noble Lord to withdraw the amendment.

Lord McCarthy

Before the noble Viscount sits down, would he define what he means by "respond"? The Minister has used the word quite a lot today—the Government "respond"; the ILO committee of experts criticises, suggests and proposes that something should be done about GCHQ; about the cancellation of recognition for the teachers' unions; that something should be done about the legislation which denies trade union sanctions and disciplines. The Government respond. When the Government respond, does that mean that they write a letter and do nothing?

Viscount Ullswater

The Government make a full response to the points put forward by the ILO or under the European social charter.

Baroness Turner of Camden

Have the Government ever changed their view on anything because of a view received from the ILO committee of experts or any ILO committee? Or have they persisted with their original view? Has their view been changed as a result of ILO intervention?

Viscount Ullswater

I am quite certain that the comments made by the ILO are taken into consideration.

Lord Wedderburn of Charlton

In winding up on the amendment, I must reply to one or two points made by the Minister, quite apart from urging him to read the Industrial Law Journal more carefully and more often.

I shall complain that he did me less than justice. In moving the amendment, I did not rehearse the argument—which is correct—that the Government are eroding rights, and so on. I said that it was a matter for debate on other amendments—at least, I hope I did. If I did not, then I do so now.

I am concerned about the diffusion of material. First, the authors of the ILJ article certainly had access to more than merely public matter. That is obvious when one reads the article. Secondly, the Minister said that the matters are in the public domain. We are concerned with the United Kingdom's replies to the committee of experts and the committee of experts' replies to the United Kingdom which some people in the Government have in the recent past alleged are confidential. The Minister says that they are not because they are sent to the CBI and the TUC. That is not good enough for me, I am neither the CBI nor the TUC and it is the view of people who receive the material that they are a little anxious about using it as though it were public. I do not wish to cost public funds too much; but will the Minister put all the material which he sends to the TUC and the CBI in the Library? That is the first request.

That would not be unnecessary because all kinds of curious misunderstandings arise on the matter and it is time they were cleared up. For example, the Minister says that we have never been condemned by the ILO. It is true that most of the material I know is in observations of the committee of experts. I have described who the committee of experts are. Therefore they are not to be brushed aside. When the committee of experts, five years running, repeatedly every year comes to the same conclusion in regard to our position in the United Kingdom, one would think that it was important in terms of the ILO.

However, with great respect to the Minister, I submit that he is also wrong in this area. I take this one, although there are others. For example, enough has gone on about GCHQ, as everyone knows, for the Government to be condemned there. If one looks at the decision in the case of the National Union of Seamen—I believe Case 1540, but the reference number is not with me—it was approved by the governing body, having been passed in the Committee on freedom of association of the ILO on 27th February 1991. One cannot go higher than the governing body which accepted the decision of the Committee on freedom of association.

There are other instances. I can understand the Government at the beginning of the saga with the ILO resting on what seemed to be the best bet; namely, that we have not been formally condemned by the International Labour Organisation. Everyone knows that the United Kingdom sent people out to Geneva pleading with people not to vote for resolutions which would do what is called a "paragraph" on the United Kingdom. If a country has a special paragraph then it is finally condemned; and I am sure we are to be condemned in that way in the near future. It is true that we have not had a paragraph; but there are many other matters on which ILO bodies of great distinction and experience have said: "In these four or five ways at least, United Kingdom legislation stands below the level of the minimum international standards which the United Kingdom itself has ratified". I was not going to go into that but the Minister provoked me. However, we can put it aside for the moment.

In withdrawing the amendment, I wish to ask the Minister a question, and he may wish to consider the matter for a later stage if that is possible. I ask him to put all the material he describes, as it emerges—at any rate once a year—in the Library so that we can see it. Then there will be no more question about what is secret and what is not. With that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 16 [Requirement of postal ballot]:

The Deputy Chairman of Committees (The Viscount of Oxfuird)

I must advise the Committee that if Amendment No. 63 is agreed to, I cannot call Amendment No. 64 due to pre-emption.

Baroness Turner of Camden had given notice of her intention to move Amendment No. 63: Page 30, line 31, leave out from ("address") to end of line 32 and insert: ("or (c) have the opportunity to vote in secret at his place of work under the supervision of the scrutineers.").

The noble Baroness said: I shall not move this amendment in favour of Amendment No. 64.

[Amendment No. 63 not moved.]

Lord Wedderburn of Charlton moved Amendment No. 64: Page 30, line 32, leave out ("by post") and insert: ("either—

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

The noble Lord said: This amendment is also known territory which raises not so much the issue of strikes and industrial action as the general question of postal ballots and workplace ballots, to put it simply.

The proposal of the amendment is that there should be an option for a union which decides to consult members about industrial action through a workplace ballot. However, I hope that no one will overlook the fact that the amendment requires a code of practice from ACAS on which I would place considerable importance after the experience we have had in the past decade or more.

In other words, the vote should be either by post exclusively, as the Government wish or, in the case of the union which selected it, in accord with the code of practice from ACAS, it should be at a convenient and sensible place at or near the place of work and before or immediately after the employees' working hours. I take it that that is a formula which may be improved upon, but it is the kind of proposal we have had before in legislation.

The issue is: what are we trying to do when we have a ballot on industrial action? I have often asked myself: is there one simple rationale about ballots? There certainly was none about the ballots the Government have had on the closed shop, for example. What are they for? Are they there to give democratic validation? Are they there, not for the purpose of legitimacy but to ensure that there is knowledge and approval, which is different, on the part of members?

I take it that when it comes to industrial action, a high imperative is the demand that there shall be the highest possible participation. I take my stand again on the inquiries which have been made into the problems of postal ballots and workplace ballots. I rely especially upon the evidence of 1984 in the work by Undy and Martin which has been quoted in debates in another place and here often enough.

I suggest that the position is this: whereas no doubt we can be marginally more sure of certain matters going right and not going wrong with postal ballots —although, as Undy and Martin say, and as everyone knows, we can have postal balloting papers which go astray—it may be that there is a bit of a margin with postal ballots. The margin in respect of the rate of participation is clearly in the direction of workplace ballots. The need to have high participation is what determines me in asking for an option. I do not just allow an ordinary option in the amendment. I say that ACAS will have a role to deal with such problems as there may be in terms of how the ballot is arranged. For example, I can imagine that ACAS has certain situations in mind in wanting ballot papers to be sent out by post—that is, if we still have a post—or by whatever private means supplants the post. There will be many possibilities and one must be flexible. But I would have thought that the need for high participation was a matter on which the Government and Members on this side were at one.

In terms of what can go wrong, if one looks at the experience of the CROTUM in the first three years of the office of the commissioner, we find that there are very few complaints on balloting, postal or otherwise. Of those few complaints, which come through 137 formal applications for assistance, we find that only eight of the cases were taken up. In three of them assistance was refused; in one the applicant withdrew; in one the High Court rejected the complaint; in two the complaint fell away and there was no industrial action; and in one the High Court awarded an order with costs. That is the officer that the Government set up to look into such matters and to seek out all the injustices which individual members of the unions may present. We know that she has used part of her budget to advertise; that she is there; and that she has a certain number of inquiries. Indeed, during the three years up to 1992, 959 people made inquiries to the CROTUM's office. And yet only one High Court order was made.

I suggest that the evidence is such that one can go straight to the issue if there is a clear advantage on participation rates. More members will vote and express their views. If one has a ballot, that is surely what one wants. And they will express their views properly and without coercion or anything of that kind.

I hope that the Government will not go on using the language which they sometimes use on these matters. Sometimes they speak about this or that practice as being something where all sorts of terrible coercion can go on. But terrible coercion can go on anywhere—except in this House. It is evidence that we need. I put it to the Minister that the CROTUM's three annual reports are very strong and serious evidence that the situation is not full of that kind of thing.

The other argument used by the Government—I anticipate the Minister in case he uses it again—is that all ballots should be completed at home. I am not sure that I follow that argument. It is commonly argued by the Government that one must have the worker completing the ballot at home, not at work. One sees at once that it is true that in the workplace situation—or, more likely under my amendment, a position near the workplace—there will be more discussion and argument on the matter among workers. A man may argue with his wife, which is another point that the Government do not seem to understand. Perhaps they have little experience of such matters. I assure them that arguments at home can be as difficult and delicate a matter as arguments at work. I do not see why workers should not discuss issues with one another. Why should they be divided from one another at the point when they decide.

They will certainly discuss the matter at home. What the Government seem to need—and perhaps in the next Bill we shall have it—is the worker producing an affidavit that he filled out the ballot form in the presence of his wife. That is the logic of the arguments moved by the Government in another place. But another place is not here, and I am sure that they will not push it to that extreme.

The ballot which is now demanded is not necessarily the best for any of the purposes for which ballots might be said to exist. It may be so in a particular case. But there may be other cases where it is not so. It is not necessarily the best in determining the democratic legitimacy of the move to industrial action. It is certainly not the best in terms of turn-out, of the numbers of workers involved—unless there has been research of which I am unaware. Research is always going on, so we may meet something new. I invite the Minister to consider whether the Government could not allow for a flexibility here which would satisfy all the possible objectives of the balloting process. I beg to move.

9 p.m.

Baroness Turner of Camden

I withdrew my amendment in favour of the one drafted by my noble friend because on reflection I thought that his wording was a great deal better than the original wording that we put down. The issue is the right to continue to have workplace voting. As drafted, the Bill removes the right of trade union members to have ballots at their workplaces. In future, should the clause be unamended, all ballots will have to be postal. We know that the cost and administration entailed in such a venture is likely to be considerable. We discussed that in an earlier part of the Bill. But as my noble friend said there are other considerations which are even more important. We have now had a number of years of dealing with ballots under existing legislation which allows for workplace balloting as well as postal balloting. There is no doubt at all—I speak from experience in this regard—that workplace balloting attracts greater membership participation. After all, that is where the union is active on behalf of members. The individuals concerned know each other and talk together. Why should they not discuss the industrial issues which unite them and around which they are organised? Unions are organised around workplaces.

In my experience such ballots have always been very well conducted and do not seem to have given rise to widespread fraud or anything of that kind. If we want unions to be fully representative of their members, surely we should choose methods that make it easy for members to participate.

As usual, the Government are trying to have it both ways. They boast of their past legislative efforts having given back the unions to their members; but then they fail to act on that assumption in their subsequent legislation. As my noble friend said, out of a number of complaints made to the CROTUM in the past three years only one related to a strike ballot—one successful one in the sense that it was a court decision. So there is no evidence of widespread fraud. If there had been, it would surely have surfaced in the office of the CROTUM.

Against that, many employers' organisations, including the Engineering Employers' Federation, support workplace ballots because they tend to give a quicker result. That is clearly important in situations of dispute. Postal ballots inevitably take longer. Indeed, in another part of the Bill that we have to discuss, independent scrutineers are given up to four weeks to return the result to the union.

In industrial relations terms this provision makes absolutely no sense at all. Indeed, the Government's 1987 Green Paper Trade Unions and their members said that postal ballots were less suitable for strike ballots. The TUC echoed those views and said it did not believe that there had been any substantial reason to change the Government's assessment of the situation as it then was. The Institute of Personnel Management also says that workplace ballots on industrial action normally have a high participation rate because they are workplace ballots. The Association of British Chambers of Commerce points out that a difficulty with postal ballots is the length of time they take in the context of strike action being called.

In fact, anybody with experience of industrial relations knows that in an industrial dispute or potential industrial dispute situation time is of the essence. One does not want the issue hanging around so that a postal ballot can take place with all the proceedings that that involves and with the scrutineers having up to four weeks in which to return the results. It is hypocritical for the Government to say they are interested in the individual rights of union members and want to give their unions back to them and at the same time, quite specifically in this legislation, forbid a system which promotes maximum membership participation in favour of one which is lengthy and cumbersome and where the return is not so high. I hope that common sense will prevail, that the Government will go back to the views expressed in the 1987 Green Paper and that they will not proceed down the path indicated in this section of the Bill. I support the amendment.

The Viscount of Falkland

I have already spoken and voted in support of the Government's proposals in Clause 1 for secret postal ballots for the election of members of union executive committees under independent scrutiny. But ballots on industrial action are quite another matter.

As I understand the position, the Government have already conceded the principle that in the case of organisations employing 50 or fewer people a workplace ballot should be allowed to continue under an arrangement providing for secrecy and independent scrutiny. If I am wrong about that, no doubt I shall be told. If that principle has been accepted, I cannot see why it should not apply equally to organisations employing more than 50 people.

There is no need for me to repeat the arguments in favour of workplace ballots. They were admirably put forward by the noble Lord, Lord Wedderburn, and the noble Baroness, Lady Turner. I fully support what they said.

Lord Stoddart of Swindon

I should like to say a few words on this amendment, which I support. Workplace ballots for industrial action are undoubtedly the proper way in which to conduct ballots. The idea of having a postal ballot about industrial action was perhaps dreamt up because the Government thought that a wife, if she had some influence, would persuade her husband to vote against strike action or other industrial action.

That was in the good old days when wives stayed at home and couples had only one income. But now there is feminism. There are women who are very militant. Today women take much more interest in what happens in the workplace and have a good deal of knowledge about it. Therefore they are much more au fait with matters than they used to be. That is altogether good. It is by no means certain now that the "little woman at home" will persuade her husband not to go on strike. The little woman at home—now the "big" woman —is more likely to discuss the matter with her husband and say, "Look here, it seems to me that you have been treated badly and it is time to do something about it".

So things have changed. The other objection to postal ballots is low turnout. When people receive a ballot form at home they say, "We will fill that out tomorrow". Tomorrow comes and they say, "Let us think about it. We will fill it out tomorrow". By the time they have finished, so many tomorrows have passed that the voting date has gone by and they have missed their opportunity to vote. Postal balloting, therefore, is not always satisfactory, especially in matters of industrial action.

I have been responsible for organising workplace ballots. I can assure the noble Viscount that when they were organised they were organised properly and there was no possibility of victimisation; there was no arm-twisting, and we had a system which was at least as foolproof as electoral ballots for local councils or for Parliament. They worked and they worked admirably.

The turnout was extremely high for at least two reasons. One was that people were able to discuss the issues involved among themselves—in the canteen or wherever. That made them more likely to turn out to vote. Also, they saw other people voting. That reminded them to vote and therefore they did vote. I found it a highly successful method of getting people to take decisions in the workplace.

I can assure the noble Viscount that it is an exceptionally good system. It smacks of democracy, and that is perhaps why the Government do not like it, whereas the other system does not. If the noble Viscount believes in democracy, in argument, in discussion between people about issues, and if he believes in high turnout, then he will support the amendment.

9.15 p.m.

Viscount Ullswater

I listened carefully to the points put forward by the noble Lords opposite during the debate on the amendment. However, I cannot agree that a ballot for industrial action, conducted in the way that the amendment would allow, would represent a satisfactory alternative to fully-postal voting as proposed by the provisions as they currently stand.

The amendment would provide trade unions with a choice as to the way they conduct voting in an industrial action ballot, and we believe that that is no longer acceptable. The amendment would not change the provisions in a way which would reassure voters about the proper conduct of a workplace ballot. Nor would they allow voters to cast their vote away from the particular pressures to which they might otherwise be subject if voting took place in the workplace.

Turning to Amendment No. 64, the noble Lord and the noble Baroness will be aware that ACAS Codes of Practice do not have the force of law. They recommend good practice to which the court and tribunals generally may have regard. However, I am unsure whether it is the intention of the noble Lord that that should continue to be the case here.

We heard the question posed as to whether postal ballots would result in lower numbers voting and hence to a less accurate reflection of union members' views. Whatever claims may be made in regard to such matters, we believe that the most important consideration is to make sure that voters can cast their vote, and decide whether to cast their vote, free from the kind of pressures that may be brought to bear in a workplace ballot, or a ballot in which voting papers have to be collected in person from the workplace.

Where trade union members have a genuine interest in the outcome of a ballot, they can be expected and, I believe, trusted to exercise their democratic right. In my view the noble Lord, Lord Stoddart, indicates a level of apathy. If that indeed is the true feeling of the individual as to whether or not he is inclined to vote, then perhaps it is reflected in the action that he takes.

Lord Stoddart of Swindon

The noble Viscount misrepresents me. I said forgetfulness.

Viscount Ullswater

The noble Lord did not say forgetfulness. His words were, "I will do it tomorrow". That indicates apathy, not forgetfulness. He said that as days go by the member would say again, "I will do it tomorrow". That is not forgetfulness. That is a question of not really caring about casting a vote. If he cared he would post the vote because he receives an envelope with the voting paper.

Lord Stoddart of Swindon

No, he is still thinking about it.

Viscount Ullswater

As we made clear in the 1991 Green Paper, Industrial Relations in the 1990s, and in our election manifesto, we believe that the best way of ensuring that industrial action ballots are conducted democratically, and without impropriety, is to provide each of those entitled to vote with the opportunity to do so by post. Compliance with any ACAS code of practice would not guarantee that right to individual members. That is why we have brought forward the provisions in Clause 16. We believe that this is an important point of principle, where codes of practice are not sufficient.

The amendment seeks to introduce a safeguard into a balloting method which we believe is fundamentally flawed and no longer represents an effective means of protecting trade union members' interests. In our view, the safest way of assuring members that a ballot for industrial action has been properly conducted is to ensure that, as far as possible, each member is given an opportunity to vote by post, as proposed by the current draft of Clause 16. If the noble Lord is similarly concerned about reassuring members in that way, I trust that he will withdraw the amendment.

Lord Wedderburn of Charlton

I am grateful to the Minister and to all noble Lords who have spoken in support of a modest amendment.

The Minister asks whether I meant to say "code of practice". I did mean that and I am aware that that does not create legal norms. On the other hand, the Government should be the first to recognise the force of a code of practice. Once they had issued the code of practice in relation to picketing, stating that in the normal case there should be no more than six pickets, the courts grabbed at it, as a way out, time and time again. Codes of practice can have a considerable effect. If the Minister were to push me and say that there should be a schedule, I would look at that situation, because I want to produce the most legitimate and democratic results.

The Minister's argument is another of those government discoveries. Suddenly in 1988 they found an area of discipline that was unjustifiable. They had had eight years in which to find that out. In 1984 the Government introduced strike ballots and they have suddenly discovered that none of the workplace ballots that have been held since 1984 has been other than what the Minister called "fundamentally flawed". It is that kind of argument of rhetoric that we constantly hear attached to government discovery. It is only the Government who are allowed to make discoveries; we are not allowed to make any discoveries.

My noble friend Lord Stoddart made a point which was undeniable. He caught me out in a sexist description of the position. It is correct to state that wives not only participate but in many households the wife is still in work, doing a part-time job, and the husband is unemployed. I know of some women in that position who organised themselves because they realised that although their new rights in areas of equal pay were splendid things, unless they organised together they would not effectively fulfil those rights. There is a very lively imagination in women's groups about workplace activity.

I noted what I can only call the first Freudian ground of argument that has appeared from the Government. The Minister ought to think about his statement the next time he forgets something. He stated that the worker who says "I will do it tomorrow" means that he does not want to vote. That is a very good Freudian argument: it is straightforward repression of the worker who says that he will do it tomorrow. I accept that that may well be the position. It would be a good thing to jog the worker's subconscious mind at the workplace and ask him, "Hey, aren't you going to vote?" That is an argument in our favour. However, the next time that the noble Lord forgets something, he must tell himself that he does not really want to do it. That is not a very good argument in favour of legislation.

This is yet another area where the Government have taken a sudden stand. As one of my noble friends pointed out, the Government did not understand the position in relation to the 1983 Green Paper. They suddenly take a stand and turn the screw more tightly upon unions believing that it will achieve the result that they want—although in this case it is very marginal. If that is correct, it is straight fixing. They are now beginning to fix the machinery to suit what they think are their purposes. I am not surprised by that and I am not surprised that I have to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 16 shall stand part of the Bill?

Lord McCarthy

I do not want to drag out this debate, but we have come to the point where we have to indicate what we feel about this clause. We feel that it is totally unjustified. We have tried to amend it in a number of modest ways but none of them has found acceptance by the Government. I have never accepted the argument that postal ballots were essentially and in general terms, better than workplace ballots or that on grounds of flexibility, speed and turnout and other reasons, the postal ballot seems to be superior.

The only ground on which one can rule in favour of a postal ballot is if one has positive evidence of abuse. If one has that, there is a case for moving from a workplace system to a postal one in the hope—which is by no means certain—that that will correct the abuse. But we have no evidence of abuse. As Members of the Committee on this side of the Chamber have said from CROTUM, if one goes along the highways and byways looking for enormities and one cannot find any, there is therefore no evidence of abuse. Therefore the balance of the argument runs towards postal ballot.

I believe that I can explain to my noble friend why the Government run the other way. It is easy enough. At the beginning the Government thought that turnout was on their side. At that time they had the simple theory of the militant minority which manipulated the vote. If one had a postal ballot there would be a low turnout, but if there was a workplace ballot there would be a high turnout. With that high turnout the moderate majority would swamp the militants. That was the theory.

What happened was that there were high turnouts but as a result almost all the ballots went in favour of some form of rejection of the employer's position. Indeed, many of the ballots went in favour of industrial action. So the Government said to themselves: "Maybe this workplace ballot is not so good". Then they discovered that not only did the ballot go in favour of industrial action, but that action did not take place. The fact that the union had a pro-strike majority, which may be 80 per cent. or 90 per cent., enabled the union to negotiate a slightly improved offer.

This Government did not like that so something had to be done about it. They went for postal ballots. The idea is that if there are postal ballots the Government will get smaller votes. If the Government get smaller votes—and they hope to do so—and even if a majority of those in the small minority vote for a strike or a great number vote for a strike, the Government will be able to say, "But look at all the people who forgot about it and who put the notice behind the clock and the matter out of their minds. They did not want to strike at all."

So one can add the number of people who did not vote to those who voted against the strike and say that there is a majority against the strike: how dare the union undertake to strike. The union may be in some doubt as to what to do. If it gets a ballot of 50 per cent. or 60 per cent. that gives it a significant majority to undertake a strike, but there are a great number of people who have not expressed an opinion. So the union wants to find out how they feel about the action and that is what the workplace ballot enables it to do, but that is what the Government do not want the union to do. That is why we have this clause and that is why we oppose it.

Viscount Ullswater

The current law requires a trade union to obtain the support of a ballot before proceeding to organise industrial action by its members. If it does not do so, the union will be at risk of proceedings. These proceedings can be either in tort, on the grounds that the union induced a person to break a contract or interfere with its performance; or by a union member under the statutory right to restrain a union's call without the support of a properly conducted ballot to that member and others, to take industrial action.

In broad terms, the present law requires that, so far as is reasonably practicable, each person who is entitled to vote in the ballot must be supplied with a voting paper, or have one made available to them immediately before, immediately after, or during, his working hours, at his place of work or at a place which is more convenient for him.

The law also requires that those entitled to vote in the ballot must be given either a convenient opportunity to vote by post; or an opportunity to vote immediately before, after or during their working hours, at their place of work or at another convenient venue; or, as alternatives, both of those opportunities.

It is therefore at present left to the union to decide which of these voting methods, or what mix of methods, will be used for the ballot. These requirements have remained the same since the balloting requirements were first introduced into the law in 1984.

The effect of the new subsection 230(2) is to remove options which previously allowed such a ballot to be conducted by methods other than fully postal voting. It requires that every person entitled to vote in the industrial action ballot must, so far as reasonably practicable, have a voting paper sent to him by post at his home address, or any other address which he has requested the union in writing to treat as his postal address, and be given a convenient opportunity to vote by post.

As I said on a previous amendment, we firmly believe that it is now time to change legislation which has, since 1984, allowed unions to hold industrial action ballots by the far less reliable method of workplace voting. The 1991 Green Paper spelt out our view that conducting such ballots by fully postal voting would provide additional safeguards against intimidation and irregularities in the conduct of such ballots.

Industrial action ballots may well affect union members more directly than, for example, union election ballots. Similarly, they may often be considered more important by union members involved. However, since 1988, election ballots have been required to be held by fully postal voting, but no such arrangements have been introduced for industrial action ballots. In addition, the establishment and maintenance of union membership registers means that it is now more practicable for unions to conduct industrial action ballots by post.

For the reasons that I have outlined, I hope that the noble Lord will consider the issues again and decide not to vote against the Question that this clause stand part of the Bill.

9.30 p.m.

Lord Wedderburn of Charlton

Perhaps I may ask the noble Viscount one short question before he sits down. He pointed out that in 1988 the Government exercised their option against introducing postal ballots for industrial action. Presumably, therefore, something happened between 1988 and now. What was it?

Viscount Ullswater

I indicated that we consider that this is the most effective way of protecting the rights of trade union members to cast their vote in secret and to record their views.

Baroness Turner of Camden

But that does not answer my noble friend's point. In 1987 we had the Green Paper, and the Government's position in the legislation of 1988 was that workplace ballots were all right for industrial dispute issues. What has happened in the years since then that has caused the Government to change their mind? With respect, I do not think that the Minister has answered that point.

Viscount Ullswater

I do not want to be drawn too far back—

Baroness Turner of Camden

We are talking about 1988.

Viscount Ullswater

Yes, but it is convenient for the Opposition to go back only to 1988 because if we go back a little further, industrial action ballots were conducted in car parks and on a show of hands. We have moved on, and I believe that this is the right process by which to conduct industrial action ballots now. I ask the Committee to support the clause.

Lord Wedderburn of Charlton

Would the Minister therefore accept that the logic of what he says is that the Government got it wrong in 1988?

Viscount Ullswater

At the risk of boring the Committee, I have to say that I believe that this is progress.

Lord McCarthy

Is it fair to say that the Minister believes that it is progress but that he does not have any evidence?

Clause 16 agreed to.

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

Viscount Ullswater moved Amendment No. 65: Page 31, line 4, leave out from ("not") to end of line and insert ("protected").

The noble Viscount said: With the Committee's permission I should like to speak also to Amendments Nos. 67, 86, 274, 275 and 278.

These amendments concern the expression of provisions which, in relevant circumstances, remove immunity for organising industrial action which would otherwise be available. In more detail, they restore references in the 1992 Act to certain acts being "protected", and express new clauses in terms of "protected as respects Section 219" of the 1992 Act.

The 1992 consolidation Act was welcomed widely, not just because it brought together law which had previously been widely scattered among many different statutes, but because of the clarity of its restatement of the law. One well-received innovation was the use of the expression "not protected" in Section 219, and subsequent provisions, to describe the removal of the statutory immunities from certain acts.

The amendments restore that "helpful innovation", and express the new matters with which the Bill deals in terms of "protected as respects". Without these amendments, the Bill would change certain references in the 1992 Act so that they became references to acts being not prevented by Section 219 from being actionable in tort". There is nothing faulty in such changes, but, on reflection, we came to the conclusion that the change was unnecessary.

By reverting to the expressions currently used in the 1992 Act, the amendments would significantly improve the expression of the law, as compared to the way it would stand by virtue of changes otherwise made by the Bill. However, they are drafting changes only, and have no substantive effect (in any way) on how the law would apply in practice. I beg to move.

Baroness Turner of Camden

I thank the Minister for his explanation of what appear to be technical amendments. I shall have a look with some interest at Hansard to see what he has said. I am not sure that I have yet understood the amendments. I believe that my noble friend Lord Wedderburn of Charlton may wish to comment.

Lord Wedderburn of Charlton

I wish only to congratulate the Government on a piece of drafting which I think is quite splendid, or at least I hope it is.

On Question, amendment agreed to.

The Deputy Chairman of Committees

I have to advise the Committee that should Amendment No. 66 be agreed to, I cannot call Amendment No. 67, due to preemption.

Lord Wedderburn of Charlton moved Amendment No. 66: Page 31, line 6, leave out from ("ballot") to end of line 10.

The noble Lord said: This is a serious matter. The provision changes the basis of our law in relation to industrial conflict, and should be looked at carefully now and, I hope, on Report. Our law has been peculiar. Whether one says that organisers of industrial action have been protected or given immunity, that has been the basis of the civil law, and even one or two parts of the criminal law, since 1906.

We have not had rights to associate, but this is perhaps the moment to say, because it is relevant to what comes later, that that system which grew up in our law was much admired by people elsewhere when it seemed to be part of a stable system. Until now, there has been a formal parity within the legal system. On one side, any person who committed an act in contemplation or furtherance of a trade dispute would be protected in respect of certain liabilities. That applied generally and not to particular people. Similarly those who were damaged by an act which they alleged and proved was not covered by such "trade dispute immunity", as it was called in the past, could equally sue without formal distinction of categories and classes. It is true that in a sense that was a formal equality, but the Government should take note of the fact that it was a central theme.

The Bill introduces a privileged group. With the exception of Clause 21, to which we shall come, which concerns "disgusted of Tunbridge Wells", or "DOT" as it has become known, about which we had a word on Tuesday, the Bill provides that most people can bring an action if there is an industrial tort—if I may introduce the category of inducing breach of contract and so forth—and if they can prove that it is not covered by trade dispute immunity; either that there is no trade dispute or that for some reason it fell outside the immunity. Since 1984 a trade union has had to hold a ballot in support of industrial action or strike.

There is now a group of people in respect of whom the trade union must go through four hoops instead of one. First, it must give the seven-day notice for the members voting. Secondly, it must give the three-day specimen ballot paper for the employer. Thirdly, it must give the result of the ballot under new Section 231A, to which I shall return. Fourthly, it must give another seven-day notice as to which employees are likely to be taking the industrial or strike action.

That is bad enough. But when we discover that the privileged group which can sue unless the union goes through all those hoops is the employer of any of those taking action we realise that there is a serious disjuncture with what hitherto has been a formally equal system. We now have a system in which the employer is permitted to sue the union on grounds which are far more extensive than those accorded to the ordinary citizen. It would be interesting to see two plaintiffs coming to court because one will turn out to be an employer of an employee taking the action, perhaps induced by the union, and the other will be someone who is not technically an employer but who has relations with the employees. Even from the Government's point of view I find it difficult to sustain the view that one should turn out to have remedies which are so far in excess of the other.

Furthermore, the division which I have made between the one-hoop ballot for the ordinary citizen and the four hoops of notices and ballots for the second group is not the end of the story. The drafting of the provision has been extremely carefully done. When I first read it I thought that it might be cunning but I put that aside because there is a further point which the Minister must answer.

Clause 18 stipulates that the union must give the result of the ballot to the employer within a reasonable period. However, that is inserted in the 1992 Act as Section 231A. The ordinary citizen will come along as plaintiff and sue the union. The union will say, "But we had a perfectly proper ballot". The ordinary citizen might say, "I have been damaged by it all and you have not satisfied all the requirements of the ballot provisions". The union's protection under the ballot provisions in Section 219 applies only where, under Section 226(2) (a), the ballot requires that: Industrial action shall be regarded as having the support of a ballot only if … the union has held a ballot in respect of the action in relation to which the requirements of sections 227 to 232 were satisfied".

This is no small point. In other words, group 1 is entitled to demand not merely a ballot but also the satisfaction of Section 231A. Were it to be found that the union had not given notice to the employer, the immunity would be lost on the clear words of Section 226(2) (a).

I do not know whether that is the intended result but it is a new point which the Minister may wish to consider—I almost said that he may wish to sleep on it. It is a very serious point because if we reach that point people will say —and I have no doubt that this will give rise to the next Bill—"Well, this is a silly distinction. Why should not everybody be able to say that they must go through the four hoops?" At present the ordinary citizen can demand that the union go through two hoops and therefore these distinctions are rather absurd.

I believe that this is a paving Bill for future legislation which will up the requirements in terms of what the union must do. Section 231A has been put where it has been put quite deliberately so that the division is not between one hoop and four hoops but between two hoops and four hoops. The whole provision will be a platform for further discoveries by the Government in the next measure. Whether or not that be true, I must ask the Minister whether paragraph (b) can, in these circumstances, be sustained. For a union to satisfy all the requirements —and I have not referred to all of them but there are many—and to prove that it has the support of a ballot is not a simple matter because Sections 227 to 232 require a great deal. Therefore, why should we not leave out paragraph (b)? Why is it there? Why does the employer have that special position with regard to bringing civil action? I hope that the Government will consider deleting that paragraph. I beg to move.

9.45 p.m.

Baroness Turner of Camden

I support my noble friend. Listening to him it seems that unless Clause 17(1) (b) is taken out of the Bill, a coach and horses is being driven through unions' immunity. I hesitate to think that we are discussing a measure which could pave the way for even worse and more punitive legislation in the future. I believe that my noble friend has raised some important issues and I await with interest the Minister's reply.

Viscount Ullswater

These are important matters and it is right that the noble Lord, Lord Wedderburn, should draw our attention to them. Under the present law, a union is free to organise an industrial action ballot without providing any kind of notice to the employer of its members who are to be balloted. Similarly, although the law applies certain requirements to the content of voting papers, there is no requirement for the union to provide a sample voting paper to the employer.

As regards the notice of intent to ballot, if his workers are to be balloted about industrial action we believe that an employer should be aware of that. Just as the union is free to recommend voters to vote "yes" in the ballot, an employer should have the opportunity, if he wishes, to put the contrary case. In order to do so, he needs to know that a ballot is going to happen, and who will be voting. Provisions in Section 226A will give employers the right to such information.

Employers should also have the right to receive basic information which may be necessary to help them decide whether a ballot has been properly conducted. Unless they are able to see a sample copy of the voting paper, they are not in a position to judge whether the requirements relating to the form of the voting paper have been satisfied. Section 226A gives employers a right to such information.

Without the provisions of Section 226(1) (b), which this amendment seeks to remove, there would be no sanction for a union which failed to take the steps set out in Section 226A. That would, of course, utterly defeat the intended purpose of these provisions. Section 226(1) (b) therefore provides that unless a union takes the necessary steps, it will not have the benefit of statutory immunity if it induces industrial action by the workers of any employer who is denied proper notice or a sample voting paper. I believe that these are reasonable steps to take. I hope that in view of what I have said the noble Lord will consider withdrawing the amendment.

Lord Wedderburn of Charlton

I am grateful to the Minister for what he has said. I understand his case but I do not agree with it. However, the Minister did not address an important point which I shall mention now so that he can deal with it on Report. Clause 17(1) (b) adds hoops. The Minister has said that those are necessary for the employer. By inference he seemed to be saying that they were not needed for what I shall call the plaintiff who is not the employer. That is what Clause 17(1) (a) seems to be saying. I believe that Clause 17(1)(a) is slightly misleading if one looks at it in isolation. I shall explain again why I believe that is the case. It refers to Section 219 which concerns the basic immunity.

Section 219(4) takes effect subject to Section 226 —that is the ballot provision. Section 226 states that the union must comply, in achieving support for the ballot, with the provisions of Sections 227 to 232. That provision appears in Section 226(2) (a). In Clause 18 of the Bill—as the Minister suggested, these clauses are rather interrelated—the demand that the union take steps, to ensure that every relevant employer is informed of the result of the ballot is inserted as new Section 231A. Therefore it falls between Sections 227 and 232 and is something upon which any plaintiff can rely. I do not know whether that is a mistake. Perhaps the Government will consider that matter as I do not believe that this point has been raised before. I hope that the Minister can reply to me now on this matter. In my submission, if the Bill remains as it is, any plaintiff can utilise a failure to inform every employer of the result of the ballot as a reason why the immunity is lost.

Viscount Ullswater

Perhaps I can assist the noble Lord. I draw his attention to paragraph 73 of Schedule 7. As the noble Lord will note, that alters the wording of Section 226 quite considerably. I do not know whether the noble Lord has taken note of that. I would not expect him to have done so this evening. He referred to words in Section 226(2) (a) which, of course, will no longer appear on the face of the legislation after the schedule is passed.

Where a particular employer is not provided with the required information, only that employer will be entitled to restrain the organisation from industrial action. He would of course only be able to restrain the organisation from the action among his own workers. The Bill recognises that, for the purposes of these requirements, only an employer who has not received the information has a real grievance.

Lord Wedderburn of Charlton

I am grateful to the Minister for those comments. I can only submit to him that his second point is wrong. I think the case law has gone far beyond the principle he has elaborated. However, we can consider that matter further. I have noted Schedule 7. It contains a requirement for the union in paragraph 73(b) (ii) where it states that the ballot must be one in relation to which, the requirements of sections 227 to 231A were satisfied". That is exactly the section I have been talking about. It is in the schedule. I had seen it there but I did not think that it would help the Minister, and at this hour of the night I dare not go into the schedules. The Minister has done so. I know that one can cut one's finger on a piece of paper. It may be that a similar fate has overtaken the Minister. Should we not consider the matter at Report? It would be much more sensible to do so. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Viscount Ullswater moved Amendment No. 67: Page 31, line 7, leave out from ("not") to first ("the") in line 8 and insert ("protected as respects").

On Question, amendment agreed to.

Lord Wedderburn of Charlton moved Amendment No. 68: Page 31, line 10, at end insert: ("provided that where interlocutory (or in Scotland interim) proceedings are commenced on a date falling within the balloting period, no order shall be made by the court unless the trade union has failed or is shown to be likely to fail, to satisfy paragraph (a) above. (1A) In paragraph (b) subsection (1) the "balloting period" is that period commencing with the seventh day mentioned in section 226A(1) (a) and terminating on the day following the last day of the appropriate period defined by subsection (4) of section 234A of this Act. (1B) Subsection (1) (b) of this section does not apply to an employer who is reported in the scrutineer's report made under section 231B to have been responsible for interference in respect of the ballot, unless that employer proves the contrary.").

The noble Lord said: One of the greatest problems for our labour relations, even before the legislation of the past two years, has always been the interlocutory injunction. That is partly because the union often has little notice and largely because since 1975 the courts have made it clear that the applicant who applies for an interlocutory injunction need prove no more than an arguable case. I do not know whether any Members of the Committee have ever tried to resist an arguable case. One says to one's interlocutor that his case is not arguable. That is a very strong thing to say to someone. It verges on saying that they have no sense whatever. Therefore, in interlocutory proceedings the union is facing a burden of proof which requires it to show that the case is not even arguable. Any lawyer worth his brief fee can usually drum up an arguable argument. Therefore, we begin with that problem.

The interaction between the interlocutory injunction—where all that the plaintiff has to do is show an arguable case, since the case of American Cyanamid Co. v. Ethicon Ltd. in 1975—and the new hoops through which the union has to go will make it extremely difficult to succeed. I do not say that if the matter ever went to trial it would be quite so difficult, but the reality of labour relations in law is the interlocutory or interim procedure.

A famous American author wrote a book in the 1930s on the interlocutory injunction. He said very rightly that once the employer has his interlocutory injunction there is almost never a trial because he has won the dispute or it has helped him to win the dispute.

The amendment provides—I am sure with considerable drafting infelicities, and I apologise to any Members of the Committee from Scotland if I have not used the correct language in terms of Scottish procedure—that now that the Government are setting up a prolonged balloting period, with notices for the employer, there ought to be a period in that arrangement during which the employer cannot seek an interlocutory injunction.

Some Members of the Committee may find that rather strong meat. However, let us look at it this way. The union is required not to authorise a stoppage until there is a ballot. It cannot hold the ballot until it has given seven days' notice. Before that it has to tell the employer who is likely to take part. It also has to show the employer a sample voting paper, and so on. Those are new arrangements. Therefore, to expect them to interact with court procedures as delicate as the interlocutory process without specific arrangements is foolhardy or simply antagonistic towards the union defendant in the arrangements. If one wants to make sure that the union loses every time, then one strips away the immunities, increases the number of hoops and leaves the interlocutory process as it is. The Government may wish to do that. The noble Viscount may tell me that that is right. But I say that it is a period when one might wish to consider some equal rules. Just as occurred in Irish industrial relations, it is extraordinary how English lawyers always seem to consider that nothing else is going on elsewhere.

If the Minister's advisers have read the Irish Industrial Relations Act 1990, they will find that once the union has held a ballot it is protected against injunctions, if notice has been given of the action and if it has what is called a fair cause in its argument. The amendment does not provide for quite the same position. But it provides that if the balloting period is to be one during which the unions stand still and cannot launch the action, then on the employer's side it should be a period in which the employer is not permitted to use the interlocutory injunction process.

The Government might state that the period is too long. But the amendment refers to the period between the two periods of notice.

I hope that the Government will take the matter seriously and not brush it aside. At present the provision in the legislation is extremely one sided. It does not state anything about interlocutory procedures. It would be nice to know that the Government have considered interlocutory injunctions. I beg to move.

10 p.m.

Viscount Ullswater

The noble Lord has made it clear that the purpose of the amendment is to undermine the effectiveness of the new protection for employers which Section 226A will provide. For that very reason, the amendment is unacceptable to us.

If a union does not provide the required notice, or the information to be contained in that notice, its subsequent call for industrial action will not be, and should not be, protected by statutory immunity. Where that happens, or is likely to happen, the employer should not have to wait until the action actually takes place against him before being able to take steps to defend his interests.

If an employer believes, first, that the union has not taken the steps set out in new Section 226A and, secondly, that the union is nonetheless likely to proceed to call for industrial action against him by his workers, the employer should therefore have a right to go to court to seek an injunction which will prevent that happening. That right should be available as soon as the employer feels that those circumstances apply. After all, no call for industrial action as a result of that ballot would enjoy immunity.

Such "pre-emptive" injunctions are a valuable and necessary protection which the law extends to the likely objects of unlawful acts. They are familiar enough and very necessary for those who can demonstrate to the satisfaction of the courts that without their award they will be the victim of an unlawful act.

The courts will not award such injunctions lightly, even on an interlocutory basis. I do not think there is any "danger"—if, indeed, that is really the appropriate word —that unions are going to find themselves constrained because the courts award injunctions without a proper basis for doing so. The Government have confidence in the ability of the courts to exercise their powers properly, and with due regard for the proper interests of all concerned. If noble Lords opposite take a different view, I am sorry for that, but I do not hold it myself.

I turn to the second element in the amendment: the suggestion that, in certain circumstances, employers should not be able to obtain an injunction even where there is evidence that a union has called for industrial action without providing the required notice of its intent to conduct a ballot.

An industrial action ballot is a union's ballot, which a union decides whether to conduct, and which it must conduct if it is to have the special protection which the law can provide for its organisation of industrial action. We have to ask ourselves, therefore, just how an employer can really "interfere" with such a ballot. Also, if there is some kind of act by such a "third party" to the balloting process, falling short, of course, of an act which would amount to a criminal offence, why would a civil law sanction be the appropriate way of dealing with what had happened?

If the union—and it is the union which organises the ballot and stands to gain the protection which a majority vote in favour of industrial action can provide—thinks that the ballot has been less reliable than it would wish, for whatever reason, it decides for itself what it wants to do in the light of that conclusion.

If an employer wishes to put his case against taking industrial action to those who may vote in such a ballot, I cannot see how that could, in any real sense of the word, be called "interference" with the ballot itself. It would certainly not be interference with the conduct of the ballot. Indeed, if an employer tells voters what may be the consequences for them or for his business of a vote in favour of industrial action, or of industrial action itself, I would not regard that as "interference" of a kind which ought to be in any way condemned, or which should lead to any kind of penalty on that employer. By like token, if a union recommends voters to vote in favour of industrial action, that in itself should not be regarded as culpable interference.

It follows that there is neither need nor purpose in requiring scrutineers' reports on industrial action ballots to say, as a matter of course, anything about whether there has been any kind of employer interference in a ballot. If a scrutineer chose, for whatever reason, to say something of the kind in his report, that would be entirely up to him. But such a statement, if made, should carry no legal implications for the employer or constrain his freedom of action as the amendment proposes.

In the light of my response, I hope that the noble Lord will withdraw his amendment.

Lord Wedderburn of Charlton

I thank the Minister for the reply. I said nothing about the second part of the amendment, for which I apologise. I thought that it was obvious that the employer who had been guilty of interference in the ballot should not get an injunction. I suppose that I was working on the well-known equitable principle that he who comes to equity must come with clean hands. The Minister asks, "How could the employer possibly interfere with the ballot?". I suppose that unions will be glad to hear that, because the definition of interference is now so narrow, no one will get through the hoop.

Of course people can interfere with the ballot. The Minister has overlooked the cases which I put to him two days ago and I hope that he will look at them properly. For example, in the American jurisdiction, if an employer puts in the wage packet—or perhaps I should say, in the light of the Bill, in the same envelope as the wage packet—a threatening note to workers, in my view that is interference in the ballot. There can be an argument, of course, but there are employers who have threatened workers quite disgracefully. It is not necessarily a crime to say such things. Of course, there can be employers who interfere in the ballot and I say that the employer should not have the right to obtain an injunction in that period.

Further, the Minister says that this would undermine the effectiveness of the whole matter. Frankly, that gives it all away. The effectiveness of the whole legislation is to set up the new hoops and make sure that employers can get interlocutory injunctions right, left and centre. The Minister, with great confidence, says that he is quite sure that such injunctions will not be granted lightly. However, I can tell him that a union in the public sector in 1987 which had seen a dispute arising from the membership for a year, suddenly found that on Sunday certain plaintiffs had telephoned the duty judge and, ex parte, without a hearing or notice to the defendant, had obtained an interlocutory injunction which it took three weeks to get rid of; perhaps that will give the Minister the flavour. Of course, it is not a characteristic case; there are such cases but it is quite easy to get an interlocutory injunction, at any rate if one briefs the right counsel. It is silly to suggest that this is a matter where the courts can possibly provide much defence and certainly not of the Bill.

The matter of the interlocutory injunction is very serious and I ask the Government to look at it. Once again, it is fundamental for union funds, costs and everything else. If the Bill is left as it is with nothing in it about the interlocutory process, the Government are simply establishing an Act which is so one-sided that no one could possibly defend it against international standards. However, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Turner of Camden moved Amendment No. 69: Page 31, line 10, at end insert: ("(1A) After that subsection there shall be inserted— (1A) Wherever an act is prevented by section 219 being actionable because industrial action has the support of a ballot, the contracts of employment of persons taking part in that action shall be presumed suspended until the termination of the dispute." ").

The noble Baroness said: It will be recalled that several times during discussion of the Bill I or one of my noble friends have expressed concern that even when all the considerable hurdles have been surmounted in the way of running a lawful dispute, and despite the UK's commitment to the ILO Convention 87 which includes the right to withdraw labour, the individual does not have a positive right to withdraw labour.

It is true that the union secures immunity from actions in tort if it follows all the procedures. As we have just heard, there is a considerable number of hoops to go through in the various pieces of legislation preceding this Bill and also in the Bill. Nevertheless, if the union itself manages to do all that, it secures immunity from actions in tort.

However, nothing has been done by the Government—who are so concerned, as we have heard this evening, about individual rights—to protect the position of the individual who, along with his colleagues, withdraws his labour in a dispute in which there has been a ballot and all the necessary steps have been taken to render it a lawful dispute. When he withdraws his labour, his contract of employment is automatically broken. Moreover, just as a form of frightener, the union will have to have told him so in a statement on the ballot paper. It will have to say, in effect, "If you vote for the strike, you are sacking yourself". That, in effect, is what the union has to tell its members.

I suppose the Government think that that makes matters all right. The member will be told, will take the decision to break his contract, and must therefore take any individual consequences that follow from that decision. I do not believe that it is all right. It is not fair to put the individual in that position and continue to maintain the fiction that we abide by international ILO obligations and maintain the individual's right to go on strike. I believe that it should be possible for the employment contract, when interrupted by lawful industrial action, simply to be regarded as suspended. I understand that that is the position in a number of other EC states.

It is not enough to argue, as I expect the Government will, that in practice people usually resume work after a dispute without any penalty. When the union negotiates a return, it endeavours to ensure that and is very often able to do so. But it is not good enough that the legal position of the individual should remain so ambiguous.

I expect the Government will say, "What about a dispute that goes on for a long time, say for a year? There have been disputes that have gone on for longer than a year. Surely you don't expect the contract simply to stay suspended for the duration of a long dispute?" Perhaps not, and I shall not press the matter to a Division at this point of the evening. But it is important that the principle of suspension is discussed. If the wording of the amendment is not adequate or not right, it can perhaps be adjusted at Report stage. But we have to address the situation of the non-protection of the individual. He will participate in a lawful dispute, in effect have no protection at all and will not have a positive right to withdraw his labour, whatever the Government may maintain. I beg to move.

Baroness Seear

On these Benches we wish strongly to support the amendment. In doing so, I wish to ask the Minister one or two questions. A belief in the right of association, the right of people to join unions, is common ground between us. I am sure the Minister will agree that the purpose of the freedom of association provision is that negotiations can take place between evenly weighted parties. That is a major idea behind the provision; namely, that one does not have a weak person bargaining against a strong person. That is why it is so important in terms of industrial relations. If that is so, the provision does not mean anything unless, when it comes to negotiation, it is possible for the union side to say, "We are not going on. We withdraw our labour". I contend that if there is no genuine right to withdraw labour, there is no reality to the belief in freedom of association. It does not exist unless, at the end of the day and after due processes have been gone through, it is accompanied by the right to withdraw labour. If the contract is not suspended, that right to withdraw labour is not a reality; there is a threat that the man will lose his livelihood.

It has always been possible in the past to argue that people were in breach of contract. The fact is that very few employers have ever used the argument. They have recognised, as I have put forward, that there must be the ability to withdraw labour if freedom of association is to mean anything. If the Government do not allow the contract to be suspended, they might as well come out into the open and say that they do not believe in freedom of association.

10.15 p.m.

Viscount Ullswater

I have to reply to the noble Baroness that there is nothing in UK law which prevents the freedom to strike. It is the consequences of those actions which may result in further action being taken by the employer. There is a contract between the employee and the employer. The amendment is very damaging. It was interesting to hear what the noble Baroness gave as justification for this measure. It is a very novel development in the law of employment contracts in the United Kingdom.

Baroness Seear

The noble Viscount says that it is very novel. Will he tell the Committee on how many occasions in the past employers have in fact used the right, which they have always had, to say that the striking employee was in breach of contract? When has it happened?

Viscount Ullswater

The effect of going on strike is a breach of contract between the employer and the employee. By this amendment the noble Baroness seeks to suspend the contract so that cannot take place. For my part, I can think of little that would be more calculated to play into the hands of militants and wreckers. Such a measure would surely risk undermining all this country's recent achievements in terms of improving its industrial relations record and reputation.

We believe in balloting where that is necessary to ensure that union members have a proper say in the conduct of the affairs of the union to which they belong.

An industrial action ballot is necessary, for example, to ensure that members want their union to call on them to take such action. The ballot is therefore a necessary condition if a union is to have the benefit of the protection which the law can give it to call on workers to take industrial action against their employer.

However, such a ballot for such a purpose cannot and should not afford any special protection for workers who choose—it will always be an individual choice at the end of the day —to take industrial action against their employer. If a ballot were capable of affording some special protection to workers who take industrial action, why should they ever vote against the action? I can see that such a law would vastly increase the chances of unions obtaining "yes" votes in such a ballot. But surely we have to consider the wider effects of that on this country's business and economy.

UK law has always allowed employers the necessary freedom to respond to strikes by imposing sanctions on those who take such action. That was the case even under the legislation enacted by the last Labour government. Indeed, so far as concerns protection against unfair dismissal, that government allowed employers to dismiss all those taking industrial action without risking claims of unfair dismissal from any of them. Even that Labour government did not believe it right to make it unlawful for employers to dismiss strikers in that way.

Employees who take industrial action will know that there may be damaging financial consequences for them, since they will not be entitled to receive any pay from their employer if they withdraw their labour. They should also be aware that they are putting their jobs at risk because the employer may decide that he has no option but to dismiss them.

In the case of strikers, the amendment would actually produce a truly bizarre result. What is it that a striker does? Surely he or she has decided that he or she wishes to bring pressure to bear on the employer by refusing to do the work which would fall to be done under the contract of employment? What else is that but a decision by the individual to break that contract of employment?

This amendment indicates that the noble Baroness, and I assume the party she represents, want to allow those who have chosen to break the contracts of employment they have made with the special dispensation that the breach will fall to be treated as no more than a "suspension". Even if that had some element of logic—which I cannot find—it would make no sense as a means of helping to improve this country's industrial relations. I hope therefore that she will withdraw the amendment.

Baroness Seear

Let us get it quite clear, the only logical conclusion that one can draw from that is that the Government do not believe in the right to strike. That is the only consequence to be drawn from that speech. The Government had better come clean about it and say so.

Lord McCarthy

Will the Minister do that? What does he mean when he says that nothing prevents the freedom to strike? In exactly the same way, nothing prevents the freedom to libel; nothing prevents the freedom to slander; nothing prevents the freedom to provide shoddy goods or to break commercial contracts. Nothing prevents the freedom to do all those things because an action can be taken: civil actions can lie in cases of libel and slander; and if one goes on strike one can be dismissed for breach of contract. How can it be called freedom? How can one be said to be free to do something when a civil action can be taken to have one dismissed? It can only be a freedom if it carries no consequence of that kind.

Viscount Ullswater

I have the feeling that people look at contracts of employment with scant care; as though they mean nothing. What is suggested is that a contract of employment can be suspended—in this case indefinitely—and that the breaking of a contract of employment by the withdrawing of labour should have no penalty.

Lord Wedderburn of Charlton

Before the Minister completes his thought process on this difficult matter, perhaps I may ask this. Is he is aware that what he said was that a breach of a contract is a breach of a contract is a breach of a contract?

Contracts have many terms implied by law, especially in our system. There is the unfair contract terms legislation. It is possible to bring that into operation—we do it every week. We imply terms into contracts. The Minister will find that in one way or another all systems of law are not quite the same. The systems to which I refer imply by law in the contract that where industrial action is otherwise lawful—I stress that—the contract of employment is suspended, in the major cases to the end of the dispute. That is true in Italy, Spain, Portugal, France, Germany—not in Denmark—but in Norway and Sweden; for the most part in the jurisdictions of the United States and it is certainly true in Canada.

The Minister must realise that merely saying that a breach of a contract is a breach of a contract and he cannot do anything about it looks quite strange to other countries. They think that Britain is rather strange. Denmark is not quite so strange because it has other features of law, but it is in our category. The position in Ireland is disputed on the case law.

The Minister appears to think that one can have a right to strike when one can be discharged or otherwise penalised for a breach of contract where one has walked from the job on lawful industrial action. It is the very definition of the right to strike that the worker cannot be so penalised. It is implicit in every study and discussion, and even the noble and learned Lord, Lord Denning, in 1978 tried to introduce it into English law in the case of Morgan v. Fry. He did not succeed because it is not a matter for judicial creation; it is a matter for statute. But his judgment warrants attention, and I am sure that the Minister will give it close consideration.

My noble friend tabled an amendment which the Minister appeared to think was quite shocking. Does he believe that the breach of contract doctrine governs industrial relations? It has an effect and should not exist in its present form because we have moved on and should be looking at people's rights. Sometimes the Government are keen on rights. Let them look at collective rights and the right of association. That is where the right to strike lies—in the centre of the right of association.

The Government are worried about the situation because for the first time in our debates on the Bill they took refuge in what the last Labour government did. Therefore, we know that they are looking at the position carefully.

Baroness Turner of Camden

I am rather surprised at the Minister's response to the amendment. I agree with what was said by the noble Baroness, Lady Seear. Everything the Minister said in response to my amendment indicates that the Government are against the right to strike, despite the fact that they have previously ratified ILO conventions that give the right to strike.

I do not understand what balloting has to do with protecting individuals. We support balloting. We have said for many years that unions are in favour of balloting their members, but that has very little to do with protection of individuals. The protection of individuals should follow from a decision taken to withdraw labour in a dispute that has been rendered lawful because the union has gone through all the hoops laid down in the legislation.

The legislation by the last Labour government was intended to be a form of protection because, the government stated, "If you are going to dismiss strikers, you do not dismiss isolated individuals because you think they are ringleaders; you either sack everybody or nobody at all". The intention was to support people who could be said to be ringleaders, and that is something that worked.

In any event, and as the Minister is fond of saying, we have moved on. It is a bit much for him to tell the Committee that the amendment is novel. We have stated on many occasions during discussions on industrial relations that there are many countries in Europe where there is provision for the contract of employment to be suspended if the individual participates in action which is lawful within their system of industrial relations.

I do not understand why the Minister reacted so sharply against the amendment. The Government have something to answer for. They claim to be protecting individuals, and that the Bill is about individual rights, but when we introduce an amendment that is specifically designed to protect the individual, as distinct from the union, we get the kind of response that we have heard this evening. Nevertheless, I will not press the amendment. We may look at the issue and put forward different wording on another occasion. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 70 to 73 not moved.]

Baroness Turner of Camden moved Amendment No. 74: Page 31, leave out lines 29 to 34.

The noble Baroness said: The group of amendments commencing with Amendment No. 74 covers similar ground, but we regard them as being important.

The Bill states that the union has an obligation to inform the employer who in that employment is entitled to take part in the ballot. In Committee in another place it was stated that that did not imply that the union had to give names to the employer. However, the text does not read in that way. Anyone reading the text would assume that the union was bound to tell the employer who would be entitled to vote in the ballot.

In other words, as my noble friend Lord Wedderburn stated on Second Reading, the union is being compelled to finger its members to the employer. That is an unacceptable situation. As I indicated, some members do not want their employers to know that they are union members. For that reason they may not pay by check-off. That situation is particularly true of people who may believe that they have feet on a career ladder and while they may have every sympathy for a union and been in membership for some time, they are not anxious to do something which they feel might endanger their promotion. They may be the very people who vote against strike action, but they pay their subscriptions and they are entitled to vote and should not expect to be "fingered" to the employer.

For that reason we are moving the amendment which would delete in line 30, the words, so that he can readily ascertain them".

I refer also to Amendment No. 78. In order to make the point absolutely clear we wish to have written into this section of the Bill the wording: This section does not impose upon the union a statutory duty to supply the employer with the names of the employees so described". In Committee in the other place there seemed to be an acceptance of the views expressed that people on our side were very unhappy about the prospect of individuals being identified in the way in which the Bill seems to provide. Therefore, I hope that this evening the Minister will agree that what is proposed here is very reasonable and that he will accept the amendment on behalf of the Government. I beg to move.

10.30 p.m.

Lord Rochester

At Second Reading I said that my noble friends and I were troubled lest the requirements in both Clauses 17 and 20 that a trade union should so describe employees to an employer that their identities could readily be ascertained, amounted to an unreasonable breach of confidentiality.

At Report stage in another place—to amplify somewhat what the noble Baroness, Lady Turner, has already said—the word "ascertain", which now appears in line 30, was substituted by the Government for the word "identify". But objections, as she has said, were not surprisingly raised to such a limited modification. In consequence, the Minister said, at col. 262 on 16th February: I thought that the amendment, … met the requirements requested of us. However, … I shall look at the amendment again". At Second Reading I said that I understood from those exchanges that the Government might be willing to initiate or to accept an amendment to meet the point in question. I asked the noble Viscount to confirm that that was the case. He had many other questions to answer in winding up the debate so it was understandable that he did not reply to mine then. I hope that he will do so now.

The aim of Amendment No. 78, as has been said, is to replace the offending words with some which are better calculated to provide the necessary degree of confidentiality. If the Government cannot accept the precise terminology proposed, perhaps the Minister will at this stage confirm at least that the Government accept the principle involved and that on Report they will bring forward their own amendment to relieve us of our anxieties on this matter.

Viscount Ullswater

Paragraph 3.25 of the 1991 Green Paper Industrial Relations in the 1990s proposed that employers should be entitled to receive notice of a union's intent to hold an industrial action ballot, and that the notice provided should include details of which members of an employer's workforce would be entitled to vote. Those proposals won strong support.

Indeed, I should perhaps mention, in particular, the comments of the Institute of Personnel Management. The noble Lord, Lord Rochester, has spoken to these amendments and he has often spoken of his high regard for that institute.

In its comments on the Green Paper, the IPM said: In so far as a ballot is used to ascertain an individual's opinion with regard to possible industrial action … the Institute supports the proposal that employers:—should be informed of the intention to hold a ballot, the workers involved, the questions put, and the voting procedure". The proposed new Section 226A(2) sets out the matters to be included in the notice that a union will have to provide if it proposes to conduct an industrial action ballot. Subsection (2) (c) states that the notice must describe: (so that he can readily ascertain them) the employees of the employer who it is reasonable for the union to believe (at the time when the steps to comply … are taken) will be entitled to vote in the ballot. During Committee debate in another place, we were asked whether these provisions meant that a union would have to provide the names and addresses of people likely to be balloted. The Minister then made clear that he thought it most unlikely that a union—unless, of course, it wished to do so—would ever have to supply names.

To go some way to meeting these concerns—but, equally significantly, to bring the provisions in this clause into line with similar provisions in Clause 20 concerning notice of intent to organise industrial action—we amended the original wording of those provisions. We accept, however, that the present provisions do not remove the possibility, no matter how remote, that a union might have to supply names, and only the names, to an employer if that was the only means of satisfying the notice requirement.

In correspondence with the Opposition employment spokesman after the Report stage in another place, the Minister made this quite clear. I quote from his letter of 24th February: If the only way in which a union could satisfy the notice requirement would be to provide the employer with the names of those it expected to be entitled to vote, then these would have to be provided". In different ways, each of these amendments seeks to undermine that policy.

Amendment No. 74 is the most direct. It simply removes the requirement to give any kind of indication to the employer, whose workers, I remind the Committee, are to be invited to vote in a ballot about taking industrial action against him, of who is likely to be given entitlement to vote. The employer would be no better off than he is now. Amendments Nos. 76 and 77 would modify the provisions of the section. The first would remove the requirement that the description given to the employer had to be one from which he could ascertain those of his workers likely to be balloted. The second would require only a "general" description of the group or group of workers involved. However, I fear that the description that that could produce might in fact be useless to the employer as a means of finding out which workers were likely to be voting in the ballot.

What, for example, if the notice related to a ballot of just a few of many workers employed by some major employer, say, a vehicle manufacturer with many plants and many workers in each of them, and said no more than that the ballot was to be of workers "in a paint shop", of which there might be many? Clearly, the employer would in effect have been given no new right. He certainly would not have been given information of the kind which we judge he may need to help him to protect his business.

Amendment No. 78 attempts a different approach. We do not want to create a situation in which a union would be able to deny an employer the necessary information on the grounds that the only way that it could be supplied was by the provision of names. Too many, I fear, would take precisely that line as a means of avoiding having to provide a key element of the notice requirements.

I listened carefully to the arguments put by noble Lords. I shall of course study the Hansard record equally carefully. However, the provisions with which these amendments are concerned have already been the subject of careful study by the Government, even since the publication of the Bill. I accept that noble Lords may not share my view. These amendments, which seek to undermine the usefulness of the notice requirement, indicate as much. Nevertheless, I hope that in the light of what I have said the amendments will not be pressed.

Baroness Turner of Camden

I am rather disappointed. I had thought that on this matter at least the Minister might be prepared to move in our direction. We have tried a number of different ways of dealing with our anxieties which, I think, are readily understood. As my noble friend put it so graphically, we do not want the union to be forced, as it were, to "finger" (to name) its members to the employer. It is an objectionable provision. For that reason we introduced, as a possibility, the wording of Amendment No. 78, taken from the Committee proceedings in the other place where the Opposition were assured by the Minister that he did not believe that the legislation imposed a duty upon the union to give the names of the employees so described.

I hope that the Minister will take the opportunity of looking again at those proceedings and at Hansard tomorrow to see whether something can be done to meet the legitimate concerns that have been voiced not only by ourselves but by the Liberal opposition this evening. With those comments, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Wedderburn of Charlton moved Amendment No. 75: Page 31, leave out line 30 and insert: ("(c) estimating the number of").

The noble Lord said: It is important that we move this amendment in view of the important discussion that has just taken place. We tabled the amendment separately from the previous group because it raises a different point. Based on the Government's own argument—their own Green paper even—it is logical to conclude that what the employer needs to know is the size of the sector of the workforce with which he will be confronted.

This part of this nasty big Bill is nasty and unseemly, and I use those words deliberately. I do not know what the Minister imagines. A union official who works with people is being asked to say to the employer, "It is Jack and Jill and Bob who are coming out." Does he have no human sympathy with that situation which overrides this absurdity?

Within the Government's own logic, an estimate of the number is reasonable. I do not like it. I would not move it myself, but I am taking it that the Government will get their Bill through. But will not they consider removing this business of names and addresses, or virtual names and addresses? A colleague of the Minister in the other place spoke of the proposal in this way: If the van drivers were to be balloted, it would be sufficient to inform the employer without saying which individuals were involved".—[Official Report, Commons, Standing Committee F, 15/12/92; col. 246.] That is a nice way of putting it—all the van drivers! Well, we know who they are. The Minister must think again. He referred to the Green Paper. It makes some play with foreign systems which require notice. That is right; there are many systems which require notice, but I defy the Minister to find a system which makes the union name, or virtually name, its members in respect of industrial action.

I move the amendment to put it on the record, and to ask the Minister to look again at this provision before Report. I beg to move.

Viscount Ullswater

I made a full reply to the previous amendment. I have noted carefully all the words that the noble Lord has used in this instance. I should like to read carefully in Hansard what has been said this evening. I am afraid that I shall not be making a full reply on this amendment, but I shall consider carefully what the noble Lord has said on this and the previous amendment, and consider what should be done. In the light of that, I hope that the noble Lord will withdraw the amendment.

Lord Wedderburn of Charlton

I am greatly obliged to the Minister for those words. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 76 to 79 not moved.]

Clause 17, as amended, agreed to.

Lord Wedderburn of Charlton moved Amendment No. 80: After Clause 17, insert the following new clause:

("Majority required in a ballot

.For paragraph (b) of section 226(2) of the 1992 Act there shall be substituted the following— (b) the majority of those voting in answer to the question applicable in accordance with section 229(2) to the industrial action of the kind to which the act of inducement relates, answered "yes" to that question;".").

The noble Lord said: I move this amendment at the request of the Law Society, especially its employment committee, and a number of my colleagues at the Bar. I did not know about this issue until they informed me about it. I can put the matter shortly. Most lawyers had assumed—I am taking the Law Society's account which I believe to be true—that if one had a ballot in which one had to separate the two questions, as one must now; that is, "Are you prepared to strike?" on the one hand, and "Are you prepared to take industrial action short of a strike?" on the other, the Bill's demand for a majority vote related to the one and then to the other.

I refer to proceedings before Mr. Justice Schiemann in May 1992. I am told by some of my informants that these were interlocutory proceedings, and one will often find judges saying, "Well, we have had to do this quickly", and that is no fault of the judge, especially as it was a Friday. Mr. Justice Schiemann was faced with the argument that although a majority, by a very few votes, had been found on the first question, the second question had been lost, however calculated, and therefore when one added up the number of "good" ballot papers, it was found that the majority cast internally for the first question was not a majority of all those who had voted. The argument was ingenious. I had not seen it nor do I believe had many people. It was that the ballot means the whole of the returned ballot papers, which are proper ballot papers, and that there must be a majority on each of the questions. It is common ground that prior to that decision no one believed that that was the case.

It is my belief that the Law Society has made representations. If not I apologise for not sending a letter, which perhaps I should have done, but these are recent matters. The amendment may be phrased badly but it changes the words relating to the question and provides that there must be a majority of those voting on each of the appropriate questions. At least, that is the intention.

I believe that that is fair. The common understanding before the case of May 1992 was fair. I thought that it was right legally but Mr. Justice Schiemann said that it is not. If there are two separate questions, as here, it may be that different shifts of workers are affected in different ways within the balloting groove and it seems absurd to demand that the majority to be required on one question or the other must be measured against those voting overall when the other question may not be attractive to anyone. One could have a good majority in respect of question A, which is cancelled out by a large vote against question B. I do not believe that that is what the Act meant and I hope that the Minister will look at the matter carefully. Those who asked me to deal with it, which I have tried to do briefly, will be grateful. I beg to move.

Viscount Ullswater

I listened with interest to the noble Lord's explanation of the amendment. I understand that the Department of Employment was aware of the circumstances of the case which he quoted.

Ever since the balloting requirements were first made part of the law in 1984 a union has, quite rightly, had to obtain majority support for industrial action from those voting in "the ballot" about that action. That law has allowed unions to put two questions to voters in any particular ballot, asking whether they are prepared to take part in either strike action or action short of a strike.

The point, of course, is that the union has chosen to ask two questions as part of the same ballot. That is a union's free choice. It would be open to the union to adopt a different tactic. It could ask each of the two questions individually, treating each as a separate ballot and having separate voting papers for each question.

Where both the questions are covered in one ballot, however, the union must be prepared to live with the potential consequences of its choice. In the circumstances which the noble Lord described, the voters in the ballot did not produce a majority in favour of either strike or non-strike action, as the case may be. Accordingly, they had not given the union a sufficient mandate to allow it to have the protection of statutory immunity for calling on them to take part in either strike or non-strike action.

We are not dealing here with any kind of real anomaly in the law but with its proper effects and results. While I appreciate that the application of the law may have come as a surprise to the union involved in the case that we have heard about, a moment's reflection shows that the court's judgment was quite correct. I hope, therefore, that the noble Lord will withdraw the amendment.

Lord Wedderburn of Charlton

Many people will be disappointed with that reply. The Law Society informed me that the Minister's interpretation, which he now latches on to—I suppose that he must take fortuitous gains wherever they come from—was not generally understood by practitioners in the field, including the Electoral Reform Society. The Law Society continues: If correct, the interpretation would require unions to so organise their affairs as to be able to argue that each separate question is a separate ballot". That is what it comes to. It will put the unions to greater expense because they will have to operate two ballots with two questions instead of one ballot with two questions. The trade union has not chosen to operate in this way because until 1988 it was able to put what I call a rolled-up question; namely, will you strike or will you take industrial action short of a strike? The Government then banned that. The reason that the problem is new is that the banning of the rolled-up question demanding two questions gave rise to this problem.

I suspect that the Minister will not look again at this matter because he knows about it. Many people will be disappointed. Many lawyers, who are not of my persuasion in any other regard, will regard it as extraordinary that the Minister will not look again at the matter. However, it will mean that the union must hold two ballots instead of one, which is regrettable. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 18 agreed to.

Clause 19 [Scrutiny of ballots]:

Lord McCarthy moved Amendment No. 81: Page 32, line 29, leave out from ("ballot") to end of line 31.

The noble Lord said: We now turn to another character—a new kind of scrutineer who looks after ballots. Under Clause 19 that scrutineer must be appointed and, under his terms of appointment, he not only has to carry out the functions of running the ballot, but he must also prepare a report. That must be done: as soon as reasonably practicable after the date of the ballot and, in any event, not later than the end of the period of four weeks beginning with that date".

The amendment says that we should not insist upon the last part of the provision; namely: in any event, not later than the end of the period of four weeks beginning with that date". In other words, it would just be, "as soon as reasonably practicable".

If the Committee looks at what the scrutineer is supposed to report on, it can be seen that that is quite extensive. He has to say that: there are no reasonable grounds for believing that there was any contravention of a requirement imposed by or under any enactment in relation to the ballot and they are quite extensive now. He has to state: that the arrangements made with respect to the production, storage, distribution, return or other handling of the voting papers used in the ballot, and the arrangements for the counting of the votes, included all such security arrangements as were reasonably practicable". I suppose that I should not say that the Minister was astonished by the phrase "reasonably practicable" the other day, and here it is in the Bill. It goes on: for the purpose of minimising the risk that any unfairness or malpractice might occur, and … that he has been able to carry out the functions conferred on him under section 226B(1) without any interference from the trade union or any of its members, officials or employees; and if he is not satisfied as to any of those matters, the report shall give particulars of his reason for not being satisfied as to that matter".

We argue that there are certain circumstances in which the four-week limit could be an embarrassment both ways. It might be thought by the scrutineer that he has four weeks and does not need to report in under four weeks when, in fact, he should report as soon as possible, as soon as is "reasonably practicable". On the other hand, there may be circumstances in which four weeks is not long enough and in which the scrutineer may feel that he needs longer than four weeks to do a good job. We do not understand the rationale of the four weeks. Surely, "as soon as reasonably practicable" is sufficient. I beg to move.

Viscount Ullswater

The noble Lord has posed a number of questions about the justification for requiring, as a matter of course and as part of the terms under which a scrutineer for an industrial action will be appointed, that the report on the ballot be produced within four weeks of the date of the ballot.

I think that it may be helpful if I explain exactly why these arrangements are proposed. The fundamental purpose of the scrutineer for industrial action ballots is to produce a report on the conduct of such a ballot, and to make that report available not only to the union itself, but also, on request, to union members and employers. Existing law requires that a union must make its first call for industrial action to which a ballot relates, and that some part of the industrial action itself must take place within four weeks of the date of the ballot. There are of course no equivalent provisions in respect of action following a union election, political fund or merger ballot.

A scrutineer may well be able to deliver the required report to the union quite soon after the relevant ballot is held. However, it would defeat the fundamental purpose of the scrutiny process if a union was allowed complete discretion as to when a scrutineer's report was made, and therefore made available to union members and employers on request. It would have little value, even if it revealed that the ballot might have been improperly conducted, were it to become available only long after the industrial action had started—and perhaps only after the action had ceased.

The selection of the particular period of four weeks allows a union which wishes to wait until the scrutineer's report is available before its call for industrial action to do so without risking passing beyond the four week limit and finding that it had to conduct a fresh ballot.

I should add that the provisions of the law will not require a union to wait until a scrutineer's report is available before proceeding to organise industrial action following a ballot. We accept that such a requirement would risk removing a significant proportion of the four weeks presently available in which a union must make its first call for action following a ballot.

I hope that the noble Lord will be reassured by my explanation of why the particular provisions the amendment seeks to remove are a necessary ingredient of the requirements for industrial action ballot scrutiny. Given that, I hope that he will withdraw the amendment.

Lord McCarthy

I shall probably have to withdraw the amendment, but I must say that it does not seem to me that the Minister has explained the matter very well. I do not see why because the union is given four weeks to decide whether to have a strike if it has an affirmative ballot, that figure of four weeks should be taken away and applied to the scrutineer's report which is a totally different exercise. If the Government wanted to have a figure, they could have some other figure. We do not see why there has to be a figure at all. Why not just have the words, as soon as reasonably practicable"? As I understand the position, the only argument that was made against that was that it would give discretion to the union. I wrote those words down. There is a slight sign of enormities again. It is being suggested that the union would in effect manipulate the scrutineer and say to him, "Now look here, my dear chap. The term 'as soon as reasonably practicable' means the year after next". I do not see why the union should do that; but why should the scrutineer take any notice, anyway? It says in the statute that he is independent and has terms of reference in relation to making a report on a ballot which include the term, as soon as reasonably practicable". If the union claimed that term meant a report did not have to be made until after the following Christmas, the scrutineer would say, "Nonsense. You do not have total discretion. My terms of reference say a report must be made, as soon as reasonably practicable. I do not see why the figure of four weeks is mentioned. Nevertheless I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 82 to 85 not moved.]

Clause 19 agreed to.

Viscount Goschen

I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.