Trade Union Reform and Employment Rights Bill

HL Deb 25 March 1993 vol 544 cc469-500

5.13 p.m.

The Parliamentary Under-Secretary of State, Department of Employment (Viscount Ullswater)

My Lords, beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Viscount Ullswater.)

On Question, Motion agreed to.

House in Committee accordingly.

[The DEPUTY CHAIRMAN OF COMMITTEES (Baroness Serota) in the Chair.]

Clause 20 [Notice of industrial action for employers]:

Viscount Ullswater moved Amendment No. 86: Page 34, line 21, leave out from ("not") to ("his") in line 22 and insert ("protected as respects").

The noble Viscount said: I spoke to the amendment with Amendment No. 65. It is a minor amendment. I beg to move.

On Question, amendment agreed to.

The Deputy Chairman of Committees (Baroness Serota)

In calling Amendment No. 87 I should point out to the Committee that if this amendment is agreed to, I cannot call Amendments Nos. 88 to 91 inclusive.

Baroness Turner of Camden moved Amendment No. 87 Page 34, line 35, leave out paragraph (a).

The noble Baroness said: I should like to speak also to Amendments Nos. 88, 89, 90, 94 and 95 because they cover much the same ground. We are in the same argument we had on Clause 17. In that clause the union is obliged to tell the employer who will be entitled to vote in a ballot on dispute action. We pointed out in our amendments, which were not accepted by the Government, that, in effect, that was compelling the union to finger—in other words, to name—its members to the employer. Despite assurances given in Committee in the other place that the clause did not mean that names and addresses had to be given, the amendment was designed to state that specifically.

We are now dealing with much the same argument, only one stage further on, and, arguably, at a more important stage. We have now reached the position where the union has had the ballot and is about to give notice of industrial action. Notice of that has to be given to the employer, and the Bill, if unamended, provides that the relevant notice to the employer must describe, so that the employer can readily ascertain them, the employer's employees whom the union intends to induce, or has induced, to take part, or to continue to take part, in the industrial action. Those are then referred to in the Bill as, "the affected employees".

The aim of the amendment is to ensure that it is clear that the union does not have to give the names and addresses of employees who are about to be called out on strike. The Committee in the other place was assured, again, that that was not what the Bill meant. If that is so, I am pleased to hear it, but it should be made clear in the Bill.

It must surely be obvious, even to the Government, that if the employer is to be told precisely, and in advance, who will be called out on strike, or is likely to answer the strike call, the opportunities for intimidation of the would-be striker are great. Furthermore, there are many workers who would not want to be identified in such a manner. This is another little bit of intimidation being introduced by the Government, along with the requirement that unions must tell members on the ballot paper that if they vote for strike action they will, in effect, be sacking themselves. I beg to move.

Lord Rochester

When we debated a series of similar amendments to Clause 17 relating to ballots on industrial action, the Minister agreed to consider carefully what should be done about what was then said. I continue to feel that the requirement that a trade union should so describe employees to an employer that their identities can be readily ascertained amounts to an unreasonable breach of confidentiality. I trust that the Minister will agree to give to these amendments the same consideration that he has undertaken to give to the earlier amendment.

Lord Campbell of Alloway

I apologise for not having been in my place. On this occasion I support the spirit of these amendments. I find it almost unreasonable, to a point of being unfair—although that is not the intention of government, I know—to require that the names of the employees should be given in circumstances such as these. It militates against the whole concept of the proper functioning of relationships between employers and trades unions.

I am sure that such is not the intention, but, life being what it is, the employers can then approach the named employees, bring what they see to be proper pressure to bear upon them and, therefore so to speak, get at and undermine the authority of the union. That is not the way industrial relations in this country should operate under any government. I am sure that such cannot be the true wish of the Government whom I support. I feel also that it is getting near to an unwarranted interference, which again is not the intention of government, I know, with the right to strike. This is frankly going over the top somehow.

I support Amendment No. 90. I was a little late because I was trying to read the Bill. Amendment No. 90, which relates to subsection (3)(a), does not seem to me to be objectionable because it cures the problem with which we have been seeking to deal.

I know that the amendments are grouped together and I know that it is idle to waste time in seeking to serialise and deal with each one. However, I have chosen one amendment that seems to me to give a fair and reasonable result. I hope that my noble friend may find a way to achieve that.

Lord Wedderburn of Charlton

My noble friend and the noble Lord, Lord Campbell of Alloway, have pointed out that we are taking in one discussion a series of slightly different amendments in the hope that it will give the Minister a varied menu from which he can choose the right result.

When a trade union is about to call action after a successful ballot, I agree with my noble friend that to demand that it describes or identifies the members concerned in any way is an invasion of normal principles.

I add one further point which may impress itself upon the Government. The clause requires that the notice: describes (so that he can readily ascertain them) the employees of the employer who the union intends to induce or has induced to take part", in the action. It is not to name those that the union thinks will come out. If the union has a large majority in the ballot, it is entitled to believe that all its members will come out and it intends to induce them all to do so, including the minority who have voted against strike action. Therefore, the Bill demands that the trade unions should describe employees in the minority and the majority and, indeed, the abstainers, which it intends to induce. At that point what the noble Lord, Lord Campbell, described as unfair becomes patently unfair.

Amendment No. 88 is perhaps a solution, a via media perhaps. In another place it was said that if all the van drivers are coming out on strike, then the union must say that all the van drivers are coming out on strike; that is effectively giving names. There is no way round an accurate description which does not fit, in a broad sense, the names of the members. Can we not escape from the dreadful prospect of a union being forced to name its members? If there must be something in the notice—and there are comparative sources for this—Amendment No. 88 suggests that the number of union members who will be involved in the action could be estimated. However, I support my noble friend's proposal to omit altogether paragraph (a).

Lord Campbell of Alloway

I seek clarification as regards Amendment No. 88. In practice, how can a union estimate the number? What will happen if, in good faith, the union makes a wrong estimation? What is the object of it? Amendment No. 89 proposes to leave out the words: so that he can readily ascertain them". Let us suppose that the group concerned is in the machine shop. That seems to me to identify the group and that is perfectly reasonable as between the employer and the union. With respect, I do not see how Amendments Nos. 88 or 89 will work in practice, but I believe that Amendment No. 90 will work.

Lord Wedderburn of Charlton

The noble Lord prefers Amendment No. 90 and I see that it has merit, although the example he gives is not quite covered by the amendment. It is possible to estimate the number at the end of a process. A dispute has been brewing and all the other steps of the process are taken—seven days notice of the ballot, the ballot, the result and then another seven days notice. If the management does not know where the dispute is by that time, there is something wrong with the management. I believe that it is quite reasonable for the union to estimate how many of its members will strike.

Lord Boyd-Carpenter

I always disagree reluctantly with my noble friend Lord Campbell of Alloway because I have an enormous regard for his judgment., particularly as regards the drafting of a Bill.

However, it seems to me that both my noble friend and the noble Lord opposite have somewhat exaggerated the effect of the words which Amendment No. 88 seeks to delete. It seems to me that, as it stands, the Bill merely contains a reasonable proposition that when notice is given, it should indicate roughly the categories of people who would be involved. That is a reasonable provision.

I believe that the Bill is right to contain a provision that notice should be given to the employer about forthcoming industrial action. Therefore, it does not seem to me unreasonable to lay down that that should indicate the broad categories of employees who will be involved. I do not know what the Minister will say but for my own part, I am quite unable to agree with my noble friend.

Lord Campbell of Alloway

I agree with my noble friend Lord Boyd-Carpenter. If it were only a question of identifying categories, I should be much in the same boat as he is; for example, identifying the machine shop or whatever it is. However, the Bill does not say that. It says: so that he can ascertain them". That is not categories; that is named employees. I may be wrong but I believe that the Bill as it is drafted constitutes a form of invasion of privacy.

Lord Boyd-Carpenter

I do not agree with my noble friend. He seems to think that to describe them means giving names and listing them. The Bill does not seem to say that at all; it simply means describing the members in, for example, the machine shop. It does not ask for a nominal description.

Lord Campbell of Alloway

We disagree in amity. As we disagree in amity, this matter is obviously not clear on the face of the Bill. Could it not be clarified?

Baroness Seear

I support the amendment. It is quite intolerable that names should have to be given. It is reasonable for the employer to know whether all his employees are to strike or only a certain number of them; for example, those in the machine shop. However, I believe that to give names opens the door to a whole series of undesirable practices. I believe that an estimation of the numbers should be acceptable but it is intolerable that the employer should be given names.

Baroness Turner of Camden

In view of what the noble Lord, Lord Boyd-Carpenter, said, is he willing to accept Amendment No. 94? It spells out that whatever may go before: Nothing in this subsection shall be taken to impose upon the union a statutory duty to supply' the employer with the names of the employees so described".

Lord Boyd-Carpenter

I shall answer that question when we reach Amendment No. 94 because it must depend upon the state of the Bill when we reach that point.

Lord Blease

I hope that what I am about to say will clarify certain points in connection with my participation in the discussions on the Bill. I know that the Minister who is to reply will have some sympathy for me and will be able to clarify certain points for me.

Some parts of the Bill apply to Northern Ireland and others do not. Clause 46 clearly states the parts which will apply. The part which we are discussing now does not apply to Northern Ireland. I intervene at this stage because in a statement on 6th November the Secretary of State for Northern Ireland said: The application to Northern Ireland of provisions equivalent to the remainder of the Bill, and also the provisions of the Employment Act 1990, will be considered in due course".—[Official Report, Commons, 6/11/92; col. 431] I have been instructed and have carried out a fair number of inquiries. I have also been approached with the weightiest amount of briefing material that I have ever received since I came to this House some 14 years ago. There is complete opposition to this form of provision. At this stage I should like to make it clear that if such a provision was to appear now, or at any time in the future, in legislation affecting Northern Ireland, it would be strongly opposed. I have been asked to take my stand and oppose it in principle on this occasion. I support the amendment.

5.30 p.m.

Viscount Ullswater

The amendments share great similarities to Amendments Nos. 74 and 78 which were debated when the Committee considered Clause 17 of the Bill. Although the notices covered by the provisions in Section 234A serve a different purpose, the expression of certain provisions in both this clause and in Clause 17 are quite similar. That is because our policy on the question of the employers' right to be told which of their workers are likely to be called upon to take official industrial action is exactly the same as our policy on their right to know which of them are likely to be balloted.

In both cases our proposals were clearly set out in the 1991 Green Paper. We believe that employers should be entitled to notice telling them which of their workers are likely to be involved in either a ballot or in official industrial action. That does not mean that the only way to satisfy that requirement is to provide an employer with a list of names. Indeed, as my colleagues and I have said before, we do not think that there would be cases where, in practice, it would invariably be necessary for a union to provide names.

If giving the categories is sufficient to enable the employer readily to ascertain the employees, then it will be enough to give categories. The vital point is whether the description is sufficient to enable the employer readily to ascertain the employees.

When we debated Amendments Nos. 74 to 78 I promised the Committee that I would study the Hansard record. I also promised the noble Lord, Lord Wedderburn, that I would consider his suggestion that it would suffice to require a union to indicate no more than its estimate of the number of the employer's workers likely to be involved. However, I remain convinced that if we are to meet our goal of providing a new right to help employers protect their business, their customers and their suppliers, it would not be right to water down the presently-proposed requirements.

First, we must reflect upon exactly what is going on when an industrial action ballot or an industrial action is imminent. In such a situation, the union is contemplating calling upon a worker to take industrial action against the employer. If an individual actually takes industrial action, it is a fair assumption that the employer will be aware of that when it happens. If the employer knows that the action is being organised by the union, he will know that the individual is responding to the union's call; in other words, he is behaving as a member of a union might well be expected to behave. So if it comes to actual industrial action, the individual who takes part in it at that stage is clearly willing to be identified in that way by his or her employer.

Secondly, the law already affords protection for individuals whose employer might dismiss or discriminate against them on the grounds of union membership or activities. That protection is a real protection. It applies regardless of the length of time which an employee has been in employment with the employer. An employer does not have a free hand to discriminate against employees who are union members.

Thirdly, we have to remember the purpose of the notice requirements. They are intended to help an employer respond, as he judges best in the circumstances of his business, to the prospect of an industrial action ballot or industrial action. To provide that help and to provide it effectively the employer needs to have information from which he can judge, with a fair degree of assurance, who among the workforce is likely to be involved. Fortunately, industrial action is now much rarer in this country than it used to be. It is a rare situation, but it creates special circumstances in respect of the employment relationship.

Bearing all those considerations in mind, we have concluded that concerns about possible invasion of privacy rights are clearly misplaced. I very much appreciate the concerns that have been expressed, but I must say that we remain convinced of the justification and need for the provisions that the amendments proposed would modify. I therefore hope that the noble Baroness will feel able to withdraw them.

Lord McCarthy

Before the noble Viscount sits down I should like him to answer one clear question which lies behind our doubts. If an employer were to suggest that he could not ascertain the names of his employees, or could not ascertain who they were, would the Minister say that a union must give those names? Further, if the union refused to do so, would it he justified in that refusal or would it be a breach of the law?

Viscount Ullswater

It is difficult to give a very clear answer in respect of every circumstance. Obviously the circumstances will be different in each case. But I confess that there may be cases where it would be important for the union to be prepared to provide the names of the employees. Indeed, it may be very few individuals who could bring a whole factory to a close. If pit is a few individuals with very highly skilled, or perhaps health and safety duties, then it would be necessary for the employees to be readily ascertainable to the employer.

Baroness Seear

Provided that the employer knows the approximate number and the categories, for what reason could he possibly want to know the names except to bring undue pressure on those people not to strike? That is our anxiety: if he knows the names, he will put pressure on them not to strike. Some of us have the increasing fear that what the Government are doing—whether or not they intend to—is in fact undermining the ultimate right to strike. That is something that we cannot accept. Pressure put on individual members is a part of undermining the right to strike.

Viscount Ullswater

The law already protects individuals in employment from actions on the part of the employer such as those suggested by the noble Baroness—actions which may be constructed as short of dismissal—if they consider that they are being victimised in that way or have suffered some detriment. I believe that the law already takes care of that situation.

Lord Wedderburn of Chariton

Before the noble Viscount finally sits down, will he agree that there are many ways in which an employer can make a worker pay for being too militant and for having taken industrial action? He gave a good resume of the other parts of the law. But would he not agree that, for example, someone taken back in reinstatement can be put in a situation quite different from that which applied before he took industrial action? Indeed, the courts have upheld that. Therefore, does the Minister agree that the person who is given that unfortunate disadvantage by the employer after the dispute has been lost by the workers—which is obviously the Government's intention for all disputes in the future —might be one of those who voted against the stoppage and that the latter situation arose because his name or, should we say, his identity, must be disclosed by the union as being someone whom the union intends to induce to take action?

Viscount Ullswater

I really do not accept that view. Of course, this requirement is for the notice regarding the taking of industrial action rather than the notice regarding balloting, although I understand that the same words appear in Clause 17. It is important that the employer should be able to adjust his affairs in that way When threatened with industrial action, he will need to have them described so that he can readily ascertain the employees who intend to take industrial action against him.

Baroness Turner of Camden

I am very disappointed with the Minster's response. Following the discussion that we had on Clause 17 when very strong points of view were expressed on this side of the Committee about confidentiality, the invasion of privacy and the fear of intimidation—especially since similar views were expressed in Committee in another place—I had thought that the Minister might have been prepared to come forward this afternoon and perhaps choose one of the menu of alternatives (including the one in Amendments Nos. 94 or 95) which has been put forward today. Those amendments are grouped with Amendment No. 87. As I mentioned earlier, Amendment No. 94 states: Nothing in this subsection shall he taken to impose upon the union a statutory duty to supply the employer with the names of the employees so described". However, the Minister has given us no ray of light at all this afternoon. We still have a situation where it is quite possible, given this clause, for an employer to insist upon being given names, even though the Minister says that he does not think the law as set out in this Bill would stipulate such action.

My noble friend Lord Wedderburn has made a valid point. Of course not everyone in a ballot will vote for dispute action. But when a union puts the decision of the majority into effect, it will obviously call upon all its members, including those who voted against the action, to participate in that action. Those names will, of course, have to be made available to the employer in advance of the action, if he insists upon that. Clearly that provides an opportunity for intimidation. My noble friend is right to say that intimidation does not always constitute dismissal. There are all sorts of other ways in which people can be subtly intimidated because they have answered a strike call or have been willing to do so. In those circumstances and because I think we are discussing an important point of principle, I feel I must ask the opinion of the Committee on this amendment.

5.41 p.m.

On Question, Whether the said amendment (No. 87) shall be agreed to?

Their Lordships divided: Contents, 80; Not-Contents, 111.

Division No. 1
CONTENTS
Airedale, L.	Falkland, V.
Annan, L.	Foot, L.
Ashley of Stoke, L.	Gladwyn, L.
Beaumont of Whitley, L.	Glenamara, L.
Birk, B.	Graham of Edmonton, L. [Teller]
Blease, L.
Bonham-Carter, L.	Halsbury, E.
Campbell of Eskan, L.	Hanworth, V.
Castle of Blackburn, B.	Harris of Greenwich, L.
Chapple, L.	Healey, L.
Clinton-Davis, L.	Henderson of Brompton, L.
Cocks of Hartcliffe, L.	Hollick, L.
Darcy (de Knayth), B.	Hollis of Heigham, B.
David, B.	Houghton of Sowerby, L.
Dean of Beswick, L.	Howell. L.
Diamond, L.	Hughes, L.
Donoughue, L.	Jay, L.
Dormand of Easington, L.	Jay of Paddington, B.
Eatwell, L.	Jeger, B.
Ezra, L.	Jenkins of Putney, L.
Falkender, B.	John-Mackie, L.

Judd, L.	Prys-Davies, L.
Kilbracken, L.	Rea, L.
Kintore, E.	Redesdale, L.
Kissin, L	Richard, L.
Lawrence, L.	Rochester, L.
Lockwood, B.	Russell, E.
Lovell-Davis, L.	Seear, B.
McCarthy, L.	Sefton of Garston, L.
McIntosh of Haringey, L.	Serota, B.
Mackie of Benshie, L.	Shannon, E.
Mallalieu, B.	Shaughnessy, L.
Merlyn-Rees, L.	Stoddart of Swindon, L.
Mishcon, L.	Strafford, E.
Molloy, L.	Tordoff, L. [Teller.]
Morris of Castle Morris, L.	Turner of Camden, B.
Morris of Kenwood, L.	Wedderburn of Charlton, L.
Mulley, L.	Wharton, B.
Murray of Epping Forest, L.	White, B.
Nicol, B.	Winchilsea and Nottingham, E
Pitt of Hampstead, L.
NOT-CONTENTS
Abinger, L.	Holderness, L.
Aldington, L.	Howe, E.
Archer of Weston-Super-Mare, L.	Hylton-Foster, B.
	Jeffreys, L.
Arran, E.	Killearn, L.
Astor, V.	Lauderdale, E.
Astor of Hever, L.	Layton, L.
Auckland, L.	Leigh, L.
Banbury of Southam, L.	Liverpool, E.
Barber, L.	Long, V. [Teller.]
Belhaven and Stenton, L.	Mackay of Clashfern, L. [Lord Chancellor]
Blatch, B.
Blyth, L.	Mancroft, L.
Boardman, L.	Marlesford, L.
Boyd-Carpenter, L.	Merrivale, L.
Braine of Wheatley, L.	Mersey, V.
Bridgeman, V.	Milverton, L.
Brougham and Vaux, L.	Montgomery of Alamein, V.
Cadman, L.	Morris, L.
Caithness, E.	Mottistone, L.
Caldecole, V.	Mowbray and Stourton, L.
Campbell of Croy, L.	Munster, E.
Carnegy of Lour, B.	Nelson, E.
Carnock, L.	Nelson of Stafford, L.
Chalker of Wallasey, B.	Orr-Ewing, L.
Chelmsford, V.	Oxfuird, V.
Clanwilliam, E.	Pearson of Rannoch, L.
Clark of Kempston, L.	Peyton of Yeovil, L.
Cochrane of Cults, L.	Prior, L.
Craigavon, V.	Rankeillour, L.
Cranborne, V.	Reay, L.
Cumberlege, B.	Rees, L.
Davidson, V.	Rennell, L.
Denham, L.	Rodger of Earlsferry, L.
Denton of Wakefield, B.	Saint Albans, D.
Dilhorne, V.	St. Davids, V.
Downshire, M.	Seccombe, B.
Elibank, L.	Shrewsbury, E.
Elliot of Harwood, B.	Skelmersdale, L.
Elliott of Morpeth, L.	Soulsby of Swaffham Prior, L.
Elton, L.	Stewartby, L.
Faithfull, B.	Strathcarron, L.
Flather, B.	Strathclyde, L.
Fraser of Carmyllie, L.	Strathcona and Mount Royal, L.
Fraser of Kilmorack, L.
Gardner of Parkes, B.	Strathmore and Kinghorne, E. [Teller.]
Gibson-Watt, L.
Goschen, V.	Sudeley, L.
Hailsham of Saint Marylebone, L.	Suffield, L.
	Swansea, L.
Hanson, L.	Swinfen, L.
Harmsworth, L.	Tebbit, L.
Harvington, L.	Thomas of Gwydir, L.
Hayhoe, L.	Trefgarne, L.
Henley, L.	Trumpington, B.

Ullswater, V.	Wakeham, L. [Lord Privy Seal.]
Vaux of Harrowden, L.
Vivian, L.	Wise, L.
Wade of Chorlton, L.

Resolved in the negative, and amendment disagreed to accordingly.

5.49 p.m.

[Amendments Nos. 88 to 90 not moved.]

Viscount Ullswater moved Amendment No. 91: Page 34, line 39, leave out ("and").

The noble Viscount said: In moving Amendment No. 91, I am speaking also to Amendments Nos. 93, 96 to 98, 100, and 102 to 104.

The proposals in the 1991 Green Paper to require at least seven days' notice of official industrial action won strong support from employers and employers' organisations. It is right to protect businesses and their customers and suppliers against the damage which can be caused by precipitate calls for industrial action. The new Section 234A will therefore give employers at least seven days' notice of the maximum extent of official industrial action which is likely to be organised against them. That is the fundamental purpose of the provisions.

Following the publication of the Bill, it became apparent to us that the provisions of the new Section 234A needed amendment to ensure that they were clear and produced the intended result. That is what the amendments achieve. They do not affect the underlying policy, which is exactly as set out in the 1992 Green Paper. They improve the drafting of the Bill and remove a number of possible ambiguities. I beg to move.

Baroness Turner of Camden

At this stage we shall not offer any objection to the amendments which have just been moved, although I shall read very carefully in Hansard what has been said. I take it that the amendments are mainly of a technical nature as they are in line with the policy to which the Minister referred.

On Question, amendment agreed to.

[Amendment No. 92 not moved.]

Viscount Ullswater moved Amendment No. 93: Page 34, line 47, at end insert (", and (c) states that it is given for the purposes of this section.").

The noble Viscount said: I have spoken to the amendment. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 94 and 95 not moved.]

Viscount Ullswater moved Amendments Nos. 96 to 98: Page 35, line 10, leave out first ("the") and insert ("an"). Page 35, line 20, after ("union") insert ("not covered by a relevant notice"). Page 35, line 26, at end insert ("not covered by a relevant notice").

On Question, amendments agreed to.

[Amendment No. 99 not moved.]

Viscount Ullswater moved Amendment No. 100: Page 35, line 35, at beginning insert ("continuous" ").

On Question, amendment agreed to.

Lord Wedderburn of Charlton moved Amendment No. 101: Page 35, line 40, after ("action") insert ("(that is to say, industrial action taken in furtherance of the same dispute)").

The noble Lord said: Amendment No. 101 appears in tandem with Amendment No. 105. Both amendments concern that part of Clause 20(7) which deals with the situation where an authority to take industrial action has been given but is later removed or ceases.

This is an important area, for this reason. It is commonplace in the reality of industrial relations that industrial action may be threatened or taken but once negotiations begin or there is a prospect of negotiations coming about, as a mark of its wish to enter into new negotiations, the workforce, or the union on its behalf, suspends the industrial action or part of it. The important question is what effect the Bill will have on such a situation. I should have thought that that is a question which interests management as much as labour, because negotiations to settle a dispute are always welcome. No one would wish to put on the statute book legislation which stands in the way of or is a disincentive to such negotiations.

The first of the amendments merely asks whether the clause, when it refers in line 40 to "the industrial action", is speaking of industrial action taken in furtherance of the same dispute. I hope that the Minister can accept that that is the case. He may say that the words proposed are unnecessary. However, at the moment the position is not entirely clear and the amendment would remove the uncertainty.

Amendment No. 105 attempts to make clear what is by no means certain in subsection (7) as it stands and as amended by the Government. I did not speak in relation to the government amendments in that respect because the point arises here. Amendment No. 105 proposes that the Bill should state very clearly that where industrial action—which I have limited to continuous industrial action although I am not sure that that is not being too conservative, as is my wont —is suspended for the purposes of negotiation with the other party and is subsequently recommenced by the union in furtherance of the same dispute, the subsections requiring a new notice and a new procedure and requiring the union to go through all the hoops again will not apply.

The present law recognises the same distinction; namely, a suspension of the dispute and of the action with a view to negotiation, and a cessation of the action and a new action taken later by the union side. The distinction is quite well known in jurisprudence. The then Master of the Rolls, the noble and learned Lord, Lord Donaldson, in the case of Post Office v Union of Communication Workers in 1989, pointed out that this was a question of fact but that in most cases the courts could recognise the difference between a suspension, as in a previous authority, and a cessation of' the industrial action, as in that case brought by the Post Office.

To my knowledge no one has criticised the way in which that distinction has been applied. Everyone seems to think that it is rather sensible. Perhaps the Minister may tell me that I am wrong, but I do not believe that the new subsection (7), in the context of' the rest of the new clause, clearly reflects that very sensible state of the law. It is for that purpose that I have tabled Amendment No. 105. I beg to move.

Baroness Turner of Camden

I want to add a word or two in support of my noble friend so that the Committee will know that it has the full support of this Front Bench.

My noble friend is absolutely right. During the course of' a dispute one may want to go back to the negotiating table. One wants the sort of legislation which makes negotiation easy rather than difficult. From that point of view the amendments which my noble friend has proposed are very sensible. I hope that the Minister will support them.

Lord Campbell of Alloway

Is there not a slight problem? I hate being technical, but has not Amendment No. 100, by inserting the word "continuous" and taken in conjunction with "and" before paragraph (b), in effect preempted Amendment No. 101? In the case of Amendment No. 105, surely the continuation of industrial action is in no way inconsistent with negotiations. In fact, as soon as industrial action starts in practice, as a rule negotiations ensue to end it, if not immediately, at all events at a subsequent stage, because it is in the interests of everyone to resolve the dispute.

I am opposed to the amendment because I believe that it could cut away from the broad effect of the clause. Although I abstained on Amendment No. 87 for the reasons that I gave on the Floor of the Chamber, I broadly support the amendment as a whole. As the Committee has accepted the clause as a whole, and I do too, it would be wholly inconsistent now to accept the amendment. I hope that the Minister will oppose it.

6 p.m.

Viscount Ullswater

Both these amendments propose changes to the new Section 234A(7). As the Committee knows, that particular subsection is to be changed by virtue of Amendments Nos. 100, 102 and 103, which we have already considered. However, I appreciate that the issues which these amendments address remain relevant.

As part of its proposals for requiring union notice of intent to call for industrial action, the 1991 Green Paper addressed the question of what should happen where the union had made a call for action, later called off the action, but then wished to call for it to re-start. Paragraph 3.20 of the Green Paper said: Where a union planned to call for intermittent industrial action, such as a series of one day strikes, it would be required to give at least seven days' notice of each day or other separate period of industrial action. Similarly, if the union's support for industrial action was withdrawn or suspended, for any reason, further notice would be required before any subsequent call to resume the action. These proposals won strong support—indeed, overwhelming support—from employers and employers' organisations such as the CBI, the EEF, the British Institute of Management, and the IPM. I am sure that they are also welcomed by every commuter who has ever faced disruption to transport services by action called without sufficient warning—and by many others too.

The noble Lord argued that unless there is some special dispensation which would remove the requirement for fresh notice where a union calls off action for the purpose of negotiation it could be damaging to good industrial relations and the prospects of settling disputes. I understand the basis of the point that he makes. I have to say, however, that we simply do not believe that this aspect of the notice requirements should, in practice, have anything like the damaging results that he suggests.

First, it is, as I have said, a union's choice, in determining the tactics it wishes to adopt, to place itself under what I could describe as the "discontinuous action regime", or the "continuous action regime". If it decides on the former, certain results follow. The notice will be specific about the particular dates on which the union proposes that action will take place, and the union will be able to decide not to call action on any of those dates if it has a good reason for doing so—such as responding to an employer's offer of negotiations.

However, where the union has opted for the "continuous action regime", it will continue to be able to decide for itself exactly how to respond to an employer's offer of negotiations. If the employer is unwilling to enter negotiations unless the union calls off the action, that is the employer's decision—which he should also be free to make. I am very far from certain that in every instance an employer will refuse even to start negotiations unless the union makes an explicit move that amounts to withdrawing its authorisation or endorsement of the industrial action.

The crucial point, however, is that to make the kind of exception that Amendment No. 105 proposes would undermine a key principle of the new notice requirements. At the end of the day that is the nub of the Government's objections to the amendment. We proposed that fresh notice should be required where industrial action was called off, and it was clear that this applied regardless of the reason for that happening. The amendment seeks to make an exception, and to create a "special case". We are not convinced that it would be either right or welcome to those who supported the proposal for us to do so.

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

Lord Wedderburn of Charlton

It has been an important debate. There was no clarification in another place that the Government intended that the Bill when enacted would cause it to be necessary for a union to go through all the hoops again whenever it calls off, suspends or ceases industrial action in the course of negotiation. I accept what the noble Lord, Lord Campbell, says: that it is not necessary to have suspension of the action for negotiation. Of course it is not. But it is a well-known part of the journey along the road back to the settlement of the dispute that management will say, "All right, we'll discuss that and that if you will call off the action or part of it". That is the flexible approach in real life rather than the curious categories of "continuous action" or "discontinuous action".

However, the Minister insists that it is a key part of the principle of the clause that no case of suspension or the like will prevent the necessity for the union to take steps for ballots, and so on, all over again. It is all very well for the Minister to say, "It is up to the employer"—

Viscount Ullswater

In my remarks I did not suggest that the union would have to go through all the steps again. I believe that the noble Lord indicates that various lengthy steps need to be taken. We say that another notice of seven days will be required.

Lord Wedderburn of Charlton

I am much obliged to the Minister. I apologise that I did not realise that he was asking me to give way; I did so willingly. I understand what he says. The new notice under new Section 234A is a notice of industrial action that has to satisfy all the requirements which have now been added in the new amendments today, about which we dared not speak when the Minister put them to us.

The Minister widens the point. Perhaps I may reply. The union has to consider subsection (5) again. Let us take a case of ordinary continuous industrial action. If any member of the union takes any industrial action on the day before the renewed industrial action is to take effect and can point to any inducement by the union at any time in the past on which he relies for so doing, then the union loses the advantage of the clause.

Viscount Ullswater

I am sorry to interrupt the noble Lord's flow, but this is an important point. The union can obviously withdraw its consent for anything like that to happen. It has an opportunity to repudiate it if somebody takes action before the day notified in the relevant notice.

Lord Wedderburn of Charlton

I am grateful to the Minister but I disagree with him. If he considers new Section 234A(5) (a) (i) and (ii), and (5) (b) it is the action of the member which incurs the disadvantage. The Minister and I will have to read the provision; I shall do so willingly. I shall read it aloud, if he so wishes, but I do not think that I should do so at this moment.

In practice the new Section 234A will be the important section. The reality of industrial life involves a wave of negotiations, semi-talks and talks. Under this section the union has to say, "Of course, we cannot call off the action".

Lord McCarthy

The union will say to the employer, "We cannot call the action off and negotiate unless you give us some kind of indemnity so that we shall not have to go through this ridiculous procedure". The problem is that under Clause 21 the employer cannot give such indemnity because a daft worker or a customer of British Rail might bring an action.

Lord Wedderburn of Charlton

My noble friend is quite right. He provokes me to say this. The Bill is like a ball unravelling; we touch the Bill and a puppy runs along carrying twine behind it. We cannot discuss only a line or two of the Bill. My noble friend states rightly what will be said in negotiation. What grieves one so badly is that we have a Bill which will go on to the statute book containing the new section and other clauses which will impede the solution of industrial disputes. Let us have no doubt about the purpose of the clauses. It is to see that the union loses the dispute.

Lord Stoddart of Swindon

I apologise for rising again but this is an extremely important point. The noble Viscount interrupted my noble friend to say that a union would not have to go through all the hoops again. In other words, it would not need to have another ballot, as understand it. However, implicit in my noble friend's amendment and in what he said—and I have great faith in his ability in these matters —is that the union will have to go through all the hoops again. How can we manage without this amendment? Ministerial statements mean nothing in courts of law, make no mistake about that.

I apologise—my noble friend says that they do. That is an advance—or perhaps not, it depends on what the statements say. However, I believe that it is essential to get the amendment on the face of the Bill in such a way that there can be no doubt for any court interpreting any action by a trade union.

Lord Wedderburn of Charlton

I am grateful to my noble friend. Keen though I am to follow that part of yet another ball unravelling, I ought at this point to withdraw the amendment. However, I believe that we have shown that there are sufficient important issues here for the Minister to have another look at least at the detail on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

6.15 p.m.

Viscount Ullswater moved Amendments Nos. 102 to 104: Page 35, line 41, at end insert ("(whether as continuous or discontinuous action)"). Page 35, line 42, at beginning insert ("no relevant notice covering acts done to induce persons to take part in the earlier action shall operate to cover acts done to induce persons to take part in the action authorised or endorsed at the later date and"). Page 35, line 46, at end insert: ("(8) The requirement imposed on a trade union by subsection (1) shall be treated as having been complied with if the steps were taken by other relevant persons or committees whose acts were authorised or endorsed by the union and references to the belief or intention of the union in subsection (2) or, as the case may be, subsections (3), (5) and (6) shall be construed as references to the belief or the intention of the person or committee taking the steps. (9) The provisions of section 20(2) to (4) apply for the purpose of determining for the purposes of subsection (1) who are relevant persons or committees and whether the trade union is to be taken to have authorised or endorsed the steps the person or committee took and for the purposes of subsection (7) whether the trade union is to be taken to have authorised or endorsed the industrial action.").

On Question, amendments agreed to.

[Amendment No. 105 not moved.]

Lord Wedderburn of Charlton moved Amendment No. 106: Page 35, line 46, at end insert:

("New employees recruited after ballot.

234B.—In this Part of this Act, where members of a trade union become employees of an employer after the date of a ballot (as defined in section 246) their participation in the industrial action authorised or endorsed by that union which has the support of that ballot does not in itself affect the lawful character of that action." ").

The noble Lord said: This new clause refers to a specific problem where there has been a ballot supporting industrial action. Action is called at some point within the following four weeks—let us say after two weeks—during which time the employer (and of course it is his choice) has recruited some members of the union as extra employees. That is not uncommon, The union calls on its members to come out. The question is: what is the legal position if the new employees come out on strike?

In the case of the Post Office v. Union of Communication Workers, to which I referred under the last amendment, the Master of the Rolls, the noble and learned Lord, Lord Donaldson, pointed to the situation and said that under the present law: It would seem to follow that any call for industrial action following a ballot should expressly be limited to those who were employed by the employer, and given an opportunity of voting, at the time of the ballot". He said that the Act allowed only those who were entitled to vote in the ballot, as he read it, to be the subject of the call to take action. It is important that he added: I do not think that any court would be concerned at small changes in the workforce but, de minimis apart, this point may repay consideration". In other words, if there are very few, the court would overlook it, but there is no basis in the statute for that. The amendment does not ask for some advantage to the union or indeed to the employer. It is the employer who recruits members of the union in the short period between the ballot and the action. It may be that if the Government see any merit in this they would wish to limit it as to time. I have not done so in the amendment; that is obviously a detail.

The amendment asks whether it is right, if it is the law now —and I shall be interested to hear whether the Government agree that it is the law—that a union is not allowed to call upon members who are recruited after the ballot to join their colleagues in taking action in a dispute which affects them as much as anyone else. I beg to move.

Baroness Turner of Camden

I support my noble friend. The situation to which he referred is not uncommon, as I am sure many Members of the Committee will know. It is important that it should he clarified and I look forward to hearing what the Minister has to say in response to the submissions that have been made.

Viscount Ullswater

I have listened with interest to the case which the noble Lord made for the amendment. However, I have to tell him that I believe that it is neither necessary nor desirable.

As far as industrial action balloting is concerned, the question of which members need to be given entitlement to vote in such ballots was discussed by your Lordships during the passage of the 1990 Employment Act. The points which were made by the Government spokesman at that time remain valid.

In essence, a union is required to ballot only those members it is reasonable for the union to believe, at the time of the ballot, will be called on to take part in industrial action. Provided that a union does this to the best of its ability, it is capable of having the protection of statutory immunity even if it subsequently calls on others, who join the employer only after the ballot, to take part in the action.

I have read carefully what the noble and learned Lord, Lord Donaldson, said and his comment that looking at the issue "would repay consideration". The Government have considered the matter and our conclusion is that there is no need to modify the law in the way that the amendment suggests.

I understand what the noble Lord said about what information might have to be provided as part of a union's notice of intent to call for industrial action. The answer to his concerns, however, is simply that a union will be required to do its best to give an employer honest notice of its actual intentions at the time when the notice is provided.

Thus, if a union did intend to call for action by workers who might join the employer only after the giving of the notice or the start of the action, its notice should encompass this.

In such circumstances, it is obvious that the notice requirement could be satisfied in this respect by the union indicating that it intended to call for action by any workers doing particular work. This is, indeed, how we would expect the union normally to give notice. If the employer took on new workers to do the work of those taking industrial action, he would know that these workers might be called on to take industrial action because the union would have indicated this in its notice.

To summarise, therefore, the noble Lord is quite right in thinking that the new notice requirement means that a union will have to tell an employer which workers are likely to be called upon to take official action. If the union envisages calling on new workers, not yet employed by the employer, then honest notice, given in good faith, will make that clear. In the light of those remarks, I hope that the noble Lord will withdraw his amendment.

Lord Wedderburn of Charlton

If ever one wanted a tiny example of making sure that the union is in the worst possible position, with great respect to the Minister, this is it. Also, if there is ever any doubt about names and identities, here we have it. The union must say, "We are calling the members out in this or that area with John, Joe, Sophie"—and goodness knows who —"but not Harry because he was only taken on by you after the ballot". I can see that in a clockwork manner this might easily be worked, perhaps in a small works. It is obviously a case where the union is likely to trip over this new trip wire. It is new, it is not even something which most people think is sustainable in present law because most people think that it should be changed.

Obviously there should be limits, but the employer takes on the new employees. The trade union might not even know who they were, if it called out all the members. I see that I must beg leave to withdraw the amendment so I do so.

Amendment, by leave, withdrawn.

Clause 20, as amended, agreed to.

Clause 21 [Industrial action affecting supply of goods or services to an individual]:

Lord Mottistone moved Amendment No. 107: Page 36, line 2, after ("235A") insert: ("(1) For the purposes of this section and sections 235B and 235C, the services referred to in subsection (2) (b) are those public services which are so designated by order of the Secretary of State exercising his powers under subsection (10).").

The noble Lord said: I wish to move Amendment No. 107 and also to speak to Amendments Nos. 110, 111, 117 and 126. I draw the Committee's attention to Amendment No. 107 where the reference to subsection (2) (b) is a reference to subsection (b) of the current subsection (1), which would become subsection (2) if my amendment were accepted. I say that just in case anyone wishes to study the details.

These are amendments to what has been termed the Citizen's Charter right, which provides considerable assistance to individuals who feel inconvenienced by unlawful industrial action. Essentially, the Government seem to have adopted a blunderbuss approach where a rifle shot was needed, with potentially damaging consequences for businesses with difficult disputes.

The Green Paper from which the Bill derives identified the case where an essential public service —for example, a rubbish collection—is disrupted by unlawful action and the public authority fails to take advantage of its right to pursue an injunction against the union with the objective of getting the service rapidly restored.

There is a particular problem in such cases because the ultimate customer, the public, has no clear contractual right which it can enforce, and no alternative supplier to whom it can turn. I have no argument with the desire to provide for customers of public services the same kind of advantages as they would enjoy in the market-place. I can fully endorse the Government's wish to see market disputes employed across monopoly public services in order to improve quality and price. But I suggest that in this Bill the Government have gone beyond the concerns of the Green Paper. Far from generating an approximation to market-place disciplines for the public services, they have instead imposed new obligations across the entire economy. By casting the net so widely they interfere with the market rather than replicate it, introduce a remedy in the private trading sector for no known abuse, and create an opportunity for needless interference in industrial disputes.

I believe that they should limit the provision to the scope of their original concern, and these amendments are designed to achieve that end. Accordingly, my Amendments Nos. 110, 111 and 117 return the references to "services" only and leave out "goods", and they give power to Amendments Nos. 107 and 126 for the Secretary of State to designate any relevant service as a public service for the purposes of this part of the Bill.

If my amendments are not accepted, Clause 21 will enable any individual, however narrow his purpose, to apply for a court order to terminate unlawful industrial action. For example, a dealer in a particular sort of widget might invoke those powers if there were an unofficial strike in the main widget factory. Surely that means more interference in industrial disputes than the Government originally intended. I beg to move.

Lord Rochester

I appreciate from what the noble Lord, Lord Mottistone, said that, in moving the first of this series of amendments, he wishes, as I understand it, to confine applications by individuals under the clause to instances of unlawful action in public services rather than in, for example, commercial services.

I sympathise with that view as a means of limiting somewhat the damage that I fear the clause will do to industrial relations. I appreciate also that if public services are to be singled out, there is a need to find some means of defining them. But I am not very happy with the proposal that the Secretary of State may designate any service as a public service for the purposes of this clause. In my view that gives the Government far too much power to act by way of subordinate legislation. I wonder therefore whether some other means could be found to achieve the objective that the noble Lord has in mind in moving the first of the amendments. To that end I shall listen carefully to what the Minister may have to say in reply. I would much rather that Clause 21 was excised from the Bill altogether. But if that cannot be done, then I very much welcome the means provided by the other amendments that are grouped with this first one; that is, to exclude the supply of goods from the scope of the clause and to confine its application to services. I hope that the Minister will make a positive response to the amendments.

Lord McCarthy

We have to begin by seeing the amendment in the context of the clause. We cannot ignore what the clause does, and we cannot ignore the clause in the context of the legislation which the Government have introduced since 1980. Each time, in industrial relations Bills, the Government have presented one addition, one further step, one extra restriction on the right to strike. Unless one considers how far we have gone, how many steps we have marched down and the length of the road that we have already traversed, one might perhaps think that this proposal sounds vaguely, mildly reasonable. The question relates to how far we have come and whether the Government can justify going further down this road and in this particular way.

Since 1980 we have seen the abolition of secondary strike action; we have seen the introduction of ballots at every conceivable level of industrial action—and more are being proposed in the Bill; we have seen a ban on the use of a union's funds to indemnify officials; we have seen the repeal of all rights of strikers in relation to unofficial action; and the Government have consistently refused to do anything about the statutory protection of workers in the context of a strike so far as the breach of their own contract is concerned. In this Bill, they now propose all kinds of additional restriction on the right to strike: additional ballots; as we have seen, the names of strikers, or potential strikers, have to be given to the employer; even during the interruption over negotiations further procedures have to he carried out.

Then we come to Clause 21. As I said a short while ago, Clause 21 stands like a great penumbra of liability, extending in effect all the other liabilities which the Government have introduced since 1980. Unknown persons who may have no entitlement at all so far as the employer or the trader is concerned, and who may not be in any way able to take action against the person who is supposed to supply the goods, are now given an action against the union. As we shall be arguing in subsequent amendments, they are given an action against the union whether or not there has been any damage. It is a monstrous clause. It is a monstrous passage in a monstrous Bill. We have to examine what: the Bill does, why we oppose the clause and how we shall oppose it.

The noble Lord, Lord Mottistone, has facts on his side. He is absolutely right. Here is a blunderbuss. Perhaps I do not believe and would not agree with him when he suggests that we should use a rifle; I would call it more a Gatling gun. But perhaps it is not as large, heavy and general a blunderbuss as the: Government want to apply. At least one might be able to tell certain parts where that Gaffing gun does not apply. The noble Lord is quite right: if one looks at the: Green Paper, that is not what the Government suggested, as the noble Lord, Lord Rochester, also said. In the Green Paper they said: The Government therefore propose that customers of public services within the scope of the Citizen's Charter should have the right to bring proceedings to prevent or restrain the unlawful organisation of industrial action in, or affecting, any such service". They gave examples, as the noble Lord, Lord Mottistone, said: services such as refuse collection … health services… education services … the payment of pensions … railways … regulated services such as the supply of electricity, gas, water and telecommunications". God knows, that is wide enough. Therefore the noble Lord, Lord Mottistone, is right. In that sense one has to agree with him. The Government have widened the clause. In that respect one prefers his amendment to the Government's clause, even though there is much that is wrong with the amendment.

There are some questions that I want to leave with the Government, which I hope the Minister will answer. Why have the Government developed the legislation this way? Why have they moved away from their Green Paper? Why have they said that it will apply to goods as well as services? Why have they said that in effect it will apply to the private sector —any part of the private sector? As the noble Lord, Lord Mottistone, said, it would apply to the modest maker or seller of widgets or to the corner shop if they were unionised. They could not conceivably be said to be in the public sector.

I suggest that on any basis at all the answer is that the whole thing is manifestly impractical and lunatic. When the Government start to consider how to implement the proposals in the Green Paper, they will find that they cannot make distinctions of that kind. They know that it would be impracticable to make the kind of distinctions that the noble Lord, Lord Mottistone, wants unless they give very considerable power to the Secretary of State. They would not want to do that. It would be very much against the tradition of the whole of this legislation, which is to give weapons to third parties and keep out the Government. In fact what the Government have now is an enormous mess. The best thing they could possibly do would be to take the whole Bill away.

6.30 p.m.

Lord Wedderburn of Charlton

I wish to make one point in relation to the discussion which took place between the noble Lords, Lord Mottistone and Lord Rochester. We are peculiarly insular and this amendment brings out one point of insularity, although it may have other virtues. The point about essential services and industrial action is very well known on the neighbouring continent. There are special laws about it in many places. For example, in Spain part of that law requires negotiation and discussion between employer and unions in respect of the minimum services to be maintained. In France, the notice to be given has the express purpose of beginning negotiations. In Italy, the 1990 law of a similar kind was promoted by trade unions and all political parties. If those places are not attractive to the Committee, coming nearer to home in Ireland the 1992 industrial relations code of practice has a lengthy analysis of the same problem and requires that the solution be sought by discussion and negotiation—on a three party basis in that system as in some of the others I mentioned.

So when we come along looking for an answer—not the answer of Clause 21, as it originally was—to the question, "Who is to designate the essential services?" (for that is the nub of the question), why is the reply, "Well, it had better be the Minister"? It seems to me that the Bill marks the way that we have moved away from the common heritage of progress in industrial relations on the Continent of Europe. In my view it is most unfortunate to find the noble Lord and the CBI moving so far from it. I do not favour the amendment, albeit that it may have other virtues compared with the clause itself.

Lord Murray of Epping Forest

I should briefly like to indicate my support for my noble friend Lord McCarthy and question the special pleading, if I may so describe it, of the noble Lord, Lord Mottistone. I point out that the legislation to which my noble friend referred, from 1980 onwards has been adopted largely with the support (and at worst with the silence) of the CBI. Now apparently the CBI has started to see the implications of the Government's attitude toward industrial relations and their broadening out as shown in this Bill. It sees the consequences of abolishing the Bridlington agreement. Be that as it may. It has seen the matter as through a glass darkly; but now it is beginning to see some of the realities of the development of the Government's attitude and is starting to worry about the effects of it.

It is getting a little late for the CBI to come to the penitent's bench. I hope that we can emasculate this clause altogether. However, if there has to be a provision on the statute book, then let the private employers be in the firing line. Let them take some of the hassle which will result from this clause. Let us see how they like it.

Baroness Denton of Wakefield

I have listened carefully to the arguments put forward by my noble friend Lord Mottistone and the noble Lords, Lord Rochester, Lord McCarthy, Lord Wedderburn and Lord Murray. However, I have to say—there was some understanding of the situation from Members opposite—that I am unable to accept the amendment tabled by my noble friend to Clause 21.

I find it strange that the noble Lord, Lord McCarthy, should think it somewhat ludicrous that persons who could well be targeted with disruption should not have a right to do something about it. The Committee rightly draws attention to the fact that the 1991 Green Paper Industrial Relations in the 1990s proposed to give a new right to individuals to seek action to halt unlawfully organised industrial action.

Lord McCarthy

Does the Minister know that, as a long suffering commuter who travels through Paddington station, I am targeted with disruption by British Rail two or three days a week? Today my journey took another one and a half hours. I have no redress whatever from British Rail.

Baroness Denton of Wakefield

As the noble Lord might recognise, we are trying to give him in an individual capacity some powers. The original Green Paper proposed giving a new right to individuals to seek action to halt unlawfully organised industrial action affecting public services. On consideration, the Government decided that the provisions in Clause 21 should afford protection to all individuals affected by any unlawfully organised industrial action.

There were a number of very sound reasons for modifying the original proposal, which help to explain why I cannot accept amendments which would have the effect of reversing the extension. First, we believe that it is right in principle that individual citizens should be able to bring proceedings to halt the organisation of unlawful industrial action where that results in their being deprived of any goods or services. The extension of our original proposal is entirely in line with the spirit of the Citizen's Charter, which gives rights to individuals as consumers of both public and private services.

Secondly, limiting the new right only to those deprived of a "public service" requires the production of a restrictive definition of such services. However, the boundary between "public" and other services—even assuming one could be identified—is not fixed. As the Government's key programme of privatisation continues, individuals should not "lose" their right to restrain unlawful industrial action just because a public service, on which they may continue to depend, has been privatised.

Finally, the approach now proposed in the Bill will avoid anomalies and inconsistencies which would otherwise have been likely to arise in practice. I hope the Committee will agree that it would be quite inappropriate to give individuals the right to restrain unlawful action by, for example, air traffic controllers but not give them that right if they were stranded at the airport due to unlawful action by airline pilots. Such an anomaly would be exceedingly difficult to explain. Similarly, how would we explain to a customer of a local bus service that he was powerless to seek redress against unlawful action affecting a privately-run bus service, but would have been able to do so had that service been run by the local authority?

Members of the Committee have identified that Amendments Nos. 110, 111, and 117 propose the removal of the term "goods" where reference is made to "goods or services" in the provisions. It is true that the 1991 Green Paper, and the Citizen's Charter White Paper, both used the term "public services" in connection with the new right created by Clause 21. However, it has always been our intention that the term "public services" in relation to the new right would include those organisations in the public sector which produce goods, as well as those providing a service; for example, Her Majesty's Stationery Office. It would make no sense to distinguish between goods and services for the purposes of the new right. Indeed, it would be somewhat peculiar to provide that the new right could be exercised only if the individual was deprived of services, but not if he was deprived of goods. We firmly believe that the right should apply to any individual who is deprived of any goods or services as a result of unlawfully organised industrial action.

Amendments Nos. 107 and 126 would have the effect of limiting the new right only to public services, as designated by order of the Secretary of State. I have already explained, and there is some sympathy in the Chamber, why we do not believe it is practical or desirable to limit the new right. I should explain also that we did consider whether it would be possible to include in the legislation an order-making power which would enable the Government to specify particular services to be covered by the right without the need for detailed primary legislation. However, such arrangements could put Ministers in a potentially invidious position during disputes where there were calls to use such order-making powers so that a specific service was brought within the ambit of the new right. We believe it would be quite wrong for the Government to become entangled in industrial disputes in that way as a result of such an order-making power.

Members of the Committee will not need to be reminded that the new right will be available only where the organisation of industrial action is unlawful; trade unions which conduct their affairs in compliance with the law will not be at risk. Nor do the new provisions replace existing rights provided to employers and trade union members, who are already able to bring proceedings to halt unlawfully organised industrial action.

However, no similar right currently exists for individuals, even if they are deprived of goods or services which they might otherwise receive, as a result of such action. It is difficult to envisage circumstances where those who already have rights would delay in taking legal proceedings against unlawfully organised industrial action which causes hardship and damage to the public.

Baroness Seear

Can I ask the Minister a question? The theory of what she says is one thing—I do not agree with it—but if one brings an action against an unlawful stoppage and wins, who will pay?

Baroness Denton of Wakefield

It is an order to restrain the action. It does not give any financial benefit to the person bringing the action.

The new right would enable members of the public to take steps to protect the provision of the goods or services on which they depend.

I am sure that the Committee will agree that there are very valid reasons why we extended the original proposal to cover all goods and services, and why I cannot accept the amendments. I hope that, in the light of what I have said, my noble friend will withdraw his amendment.

6.45 p.m.

Lord Mottistone

I am grateful to my noble friend Lady Denton for the full explanation that she has given for not liking the amendment. I am grateful also to Members of the Committee who spoke obliquely in support of it. It is clear that the amendments are not suitable in their present form. I shall take them away and read with care what has been said to see whether there is some way in which we can modify the clause so that it is not quite so all-encompassing. However, at this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Wedderburn of Charlton moved Amendment No. 108: Page 36, line 2, after ("235A") insert: ("() An individual falls within this section if, being entitled to the supply of goods or services, he has suffered damage as a necessary consequence of an unlawful inducement.").

The noble Lord said: In moving Amendment No. 108 I shall speak also to Amendments Nos. 112 to 114 and 116.

Amendment No. 108 contains the principal heads of objection to what is a highly objectionable clause. First, the clause allows anyone to bring a legal action, whether or not he has any entitlement to the goods or services of any kind whatever. The noble Baroness says that someone can sue if he is deprived of goods or services. But if he has no legal right to those goods or services, what does that mean?

Strolling up to the Tunbridge Wells railway station are those well-known characters "Disgusted of Tunbridge Wells" and his wife. They had not thought of catching a train to London that day, hut on seeing a notice saying "We are all out on strike without a ballot"—to make the position plain—they may say, "It would have been nice to catch a train. We are deprived of that". All those kinds of people can bring legal actions. There is no limit when one lifts the "entitlement" bracket. I do not wish to sound pompous but it is part of the rule of law that someone is "entitled" to bring an action; not just an adventitious visitor upon the legal scene.

The second point makes it worse. The provision exists for people who do not necessarily suffer any damage whatever in the legal sense. In extending the law relating to inducement to break a contract by indirect means in 1952, in a judgment which is a classic fount upon the matter, Lord Justice Jenkins said this: provided that the breach of the contract between the two other persons intended to be brought about by the third party does in fact ensue as a necessary consequence". We are so far away from any "necessary consequence" of any kind of damage that the principle has gone out of the window. Indeed, the wrong appears to be suffered even when the "effect" is indirect.

What is meant by "prevention" or "delay" in supply, or "reduction in quality"? We have no contractual or other level against which to measure whether or not there is a reduction. It applies to the individual without any show of entitlement and to an individual who may well be the employer. That point has not been discussed before. Everyone seems to imagine that it is some "Dot" figure down in Tunbridge Wells. It may not be; it may be the employer. He is not ruled out from the clause as I read it. The Minister will correct me if I am wrong, but if I am right then a whole new panoply of legal weapons opens up for employers.

Although the noble Baroness rightly says that the action has to be unlawful in one sense or another, again there is a sleight of hand. Under the clause the action must be either in breach of the duties which the union owes under the section which gives members only a right to an injunction if there has been no ballot (that has now been extended to other people without limit) or unlawful in the sense that it is actionable in tort by any other person—I say again, "any other person".

Walking up to the railway station, Mrs. Dot may say, "I happen to know that this union did not tell the employer the result of its ballot. Right, we are in! We can obtain a court order tomorrow or immediately if we ring up the duty judge". I do not know what effect that will have upon the need for more judiciary in the High Court. But I have a shrewd idea of what effect it will have on industrial relations where they have not already been shattered by the rest of the Bill.

We come later to an amendment where I want to make a specific point, but generally the provision operates even when the inducement by the union to its members is ineffective. This is another departure from the normal principle which the Government have enacted in the specific area of unions holding ballots at the request of members, which I understand, but outside in terms of liability in tort it has no effect.

It has been put to me that under the clause the inducement works even if it is ineffective, whether because of a person's unwillingness to be influenced by it or for some other reason. It conjures up the notion of a union official sending letters to blind members who cannot possibly read them. Exactly what the clause means one does not know. What it amounts to is that nothing that the union says about its inducement will be listened to.

I beg noble Lords to notice that the clause does not deal only with liability, if there is a failure to meet the order of the court in any respect it deals sharply and firmly with any contempt, which I understand. A contempt of court is not something that one evades where there is liability, but when liability is built upon these principles, to be quite clear about contempt of court liability shows what the Government want to do.

I hope that noble Lords and Ministers will look at this. Surely, they cannot now put forward a clause of this kind even before the Bill comes to Report. I beg to move.

Lord McCarthy

I want to try to rule out two possible answers that the Government may give to what my noble friend Lord Wedderburn of Charlton has said. An amendment of this kind was debated in another place and on that occasion the Government spokesman seemed to rely upon two matters: first, that in Clause 235A(b) it was provided that there had to be at least an effect or likely effect, not a necessary effect. Secondly, in Clause 235A(4) it was provided: Where on an application under this section the court is satisfied that the claim is well-founded … Much was made of that. But that does not affect in any way what my noble friend has said. The fact is that there does not have to be any damage or contract. All it means is that if there is a likely effect it is founded enough for the Bill. Please do not let the Minister trot out any of this stuff tonight.

Lord Rochester

This amendment goes to the heart of the matter in challenging the basic aim of the clause to extend to actual or potential customers the right to take proceedings to restrain unlawful action, even though they are not entitled to be supplied with the goods or services in question.

I wish that the Government would pay more attention to employers with practical experience of these matters. For example, the Institute of Personnel Management has said that the proposal is likely to do great harm to industrial relations if it is implemented. Similarly, the Association of British Chambers of Commerce feels that it will provide a field day for inevitable vexatious litigants to exacerbate problems in situations, some of which will be at a stage that requires extremely skilled and delicate handling. No doubt it will provide the lawyers with more work, but that is not the way to handle the sensitive situations that arise in industrial disputes. Lawyers themselves do not seem to want the work. The briefing from the Law Society that I have in front of me says that it is doubtful about the desirability of introducing this provision in the terms proposed by the Government given that remedies already exist for parties to a contract and others suffering actual loss as a result of unlawful industrial action. I very much support the amendment.

Lord Stoddart of Swindon

I support the amendment. The mind boggles at the particular clause. This Bill, together with other industrial relations Bills and Acts, is making it increasingly difficult for people to take lawful industrial action. It is very likely that in future for workers to get redress, particularly about local matters, they will have to take unlawful action or what used to be called unofficial action. In those circumstances, they will render themselves liable to be taken to court by a person on the street without any knowledge of the circumstances in which people have gone on strike. For example, it could be about safety at work or about a very bad employer. Anybody can come in from the street and take them to court. Let us say that that person wins and the court says, "You chaps get back to work because you have deprived this person of some goods or services". Suppose they reply, "We're sorry but this is a matter of high principle that affects our position at work. It may affect our safety. Therefore, we will not go back". What happens? Apparently they cannot be fined; there is nothing that the court can do to award damages to the person from the street who says that he has been offended. Will they be put in gaol?

Have we forgotten the five trade unionists who were incarcerated for two days until the Official Solicitor got the Government off the hook? Do we want that kind of thing to happen again? Implicit in this particular cause is exactly that situation. Noble Lords opposite are laughing. They were not laughing when hundreds of thousands of workers marched in favour of those who had been incarcerated and who were released after the intervention of the Official Solicitor. I have to tell the noble Baroness that there is grave risk of that happening again in relation to this particular clause. I urge her to go back to her colleagues and ask them to look at the implications of the clause. It may cause them a lot of trouble in the future, and perhaps this time the Official Solicitor will not be able to get them off the hook.

Baroness Denton of Wakefield

I still have trouble in understanding why there should be an objection from the other side and why, whilst trade unionists and employers have rights, there should be problems about individuals having rights. This is the whole purpose of the clause. I have been advised that there has always been legal fear of "Disgusted of Tunbridge Wells". But I do not see that this is a temptation to bring frivolous or spurious court cases. To exercise the new right an individual must be able to satisfy the court that he or she had been, or was likely to be, deprived of any goods or service and that such deprivation was the consequence of unlawful organisation of industrial action. The remedy that the court would award would be an order restraining the unlawful act and not damages. It is also important to remember that where an individual brings proceedings which turn out to be ill-founded he or she may be required to pay costs to the union. That will be an additional deterrent to frivolous or vexatious proceedings.

Let us be clear about this matter from the outset. We are not seeking to establish an unnecessary right —I am pleased to reassure the noble Lord, Lord Rochester, that we are not aiming to take rights away from employers—as would be the case if we were requiring those wishing to exercise it to have all the grounds which they would need to bring their own proceedings in tort. We are creating a new statutory right which relates to a tortious act of inducement —but that is a quite different matter.

Naturally, anyone wishing to exercise the new right will have to be able to satisfy the court of his or her case. There will be appropriate tests. Those tests are already contained in Section 235A. Amendments Nos. 108 and 112 seek to add to those tests in a way which we believe to be unnecessary and undesirable.

A key test we propose is, of course, the test of "deprivation", or "likely deprivation", of goods or service. The amendments propose to add to this, or to replace it, with the test of "damage" The problem, however, is that "damage" implies that the individual will be able to show quantifiable financial or material loss. We do not believe it appropriate to do so.

If unlawful organisation results in deprivation of goods or services, and the individual can satisfy the court that that is what has happened, or is likely to happen, we believe that that is a sufficient test. We see no need to expect the individual to demonstrate or quantify financial or material loss.

7 p.m.

Lord McCarthy

Can the noble Baroness give an example of non-quantifiable immaterial loss?

Baroness Denton of Wakefield

We are saying that we do not believe it is necessary to expect the individual to demonstrate or quantify financial or material loss. He or she shows deprivation.

Lord McCarthy

So deprivation is non-quantifiable immaterial loss, but one cannot define it!

Baroness Denton of Wakefield

The noble Lord is following down a track entirely of his own. We are saying that the person who wishes to bring this order should demonstrate deprivation. He or she should not have to become involved in quantifying financial or material loss.

Baroness Seear

Can it be deprivation on any scale? What is deprivation? Is it that one cannot get a cup of tea, or something?

Lord McCarthy

That is a material loss.

Baroness Seear

What is deprivation?

Baroness Denton of Wakefield

Perhaps it would help the noble Lord and the noble Baroness if they put in their minds the fact that there was non-collection of rubbish by a local authority on a particular day. That is not easily quantifiable but it is certainly a deprivation of service.

As I said, the individual should not have to become involved in quantifying financial or material loss. Indeed, would that be in any way appropriate, bearing in mind the remedy that the new right will provide? We are not providing for the individual to recover damages under the new right, but have confined the remedy to what he or she needs—a court order halting the unlawful organisation of industrial action.

To introduce the notion, as proposed by Amendments Nos. 113 and 116, that the new right could be exercised only if an individual was "entitled" to the goods or service of which he or she has been deprived would simply drive a coach and horses through the clause. That, I suspect, is the purpose of the amendment.

Similar amendments were debated at the Committee stage of the Bill in another place with very much the same arguments as we have heard today. I fear that my answer will be very little different from what the Minister of State said on that occasion. The whole purpose of the new right is to afford new protection for those who are deprived of goods or services by unlawful organisation—I stress "unlawful"—of industrial action, but have no grounds—or very uncertain grounds—for protecting their interests under the present law.

Where a contract is broken, or its performance would be interfered with, by an unlawful inducement of industrial action, or where either of those things is likely to happen, the parties are able to bring proceedings in tort to stop the inducement. They will have to satisfy various tests in order to get their remedy from the court, but they have that option.

However, deprivation can result from unlawfully organised action, whether or not there is any entitlement to the goods or services in question. That deprivation is just as real —whether entitled by contract or anything else. That is why it would be quite wrong to limit the new right to circumstances of contractual or other entitlement. For the same reasons, it would undermine the right if Section 235A(3) was removed, as proposed by Amendment No. 116.

Baroness Seear

I am sorry to interrupt the noble Baroness again but mine was not a frivolous question. Perhaps the example was frivolous. We must know what is meant by "deprivation". There must be some idea of the scale. It surely cannot be that one could not get some quite trivial thing. Is that deprivation? If that is not deprivation, where does one draw the line? When does not being able to get a little thing that one wants turn into deprivation? It must be definable. What is the definition?

Lord McCarthy

I may be able to help the noble Baroness. I have been trying to think of a character in literature who might fit this. It is unquantifiable and it is immaterial. The Merchant of Venice said: I know not why I am so sad". Perhaps it was him.

Baroness Denton of Wakefield

I am right to be nervous of assistance when it is offered by the noble Lord, Lord McCarthy. Nevertheless, I am grateful to him for his concern.

As said earlier, we are not looking at cases of frivolousness. In the exercise of the new right the individual must be able to satisfy the court. The court will decide whether it is a matter of no concern.

Turning to Amendment No. 114, it is true that there are various actionable torts, besides breach of contract, which may arise in connection with the organisation of industrial action. "Interference with contract" is clearly one, "threat to breach or interfere with the performance of contract" another and conspiracy to do such a thing yet a third. All these torts are, of course, capable of being protected by the statutory immunities—and hence are not "actionable". There are also other torts which the statutory immunities do not cover and were never meant to cover; for example, inducement to breach a statutory duty. However, the most frequent tort which arises when people are called on to take industrial action is the tort of inducing breach of contract. Such acts may be protected by the statutory immunities, but not, of course, unless the relevant conditions have been satisfied. These include, for example, that a union should have majority support from a proper ballot before calling for industrial action. In future, there will also be the requirement to provide sufficient notice to employers.

If it is unlawful, and unprotected by the statutory immunities, to induce industrial action involving breach of contract, it should be open to the individual to protect his interests by bringing proceedings under the new right. He or she will, of course, have to be able to satisfy the court that the claim that there has been such an act is well founded. That condition is apparent in Section 235A(4). To limit the new right in the way proposed by Amendment No. 114 would, in effect, deprive the individual of the ability to use it to protect his interests against unlawful, and unprotected, calls for industrial action. That is unacceptable and unjustifiable.

I appreciate that the amendments would wish to render the new right ineffective by imposing additional tests on its exercise. That is what they would do and it is exactly why we cannot accept them. I hope that the noble Lord will withdraw the amendment.

Lord Stoddart of Swindon

Before the noble Baroness sits down, will she confirm that under the clause, as a result of an action by one individual, trade unionists may very well in the end go to gaol?

Baroness Denton of Wakefield

The action would be against the organisers who, if they act against the court order, are in contempt. The unions usually suffer sequestration of assets for contempt.

Lord Stoddart of Swindon

We are not talking about trade unions; we may be talking about individuals.

Baroness Denton of Wakefield

We are talking about the organisers of the unlawful action.

Lord Stoddart of Swindon

Who could be a group of individuals.

Lord Wedderburn of Charlton

I am tempted to go down all these roads, but I must not. I beg leave to seek the opinion of the Committee.

7.10 p.m.

On Question, Whether the said amendment (No. 108) shall be agreed to?

Their Lordships divided: Contents, 41; Not-Contents, 85.

Division No. 2
CONTENTS
Airedale, L.	McCarthy, L.
Archer of Sandwell, L.	McIntosh of Haringey, L.
Ashley of Stoke, L.	Mackie of Benshie, L.
Birk, B.	Meston, L.
Blease, L.	Monkswell, L.
Clinton-Davis, L.	Murray of Epping Forest, L.
Donoughue, L.	Nicol, B.
Dormand of Easington, L.	Pitt of Hampstead, L.
Eatwell, L.	Prys-Davies, L.
Ennals, L.	Rea, L.
Glenamara, L.	Richard, L.
Graham of Edmonton, L. [Teller]	Rochester, L.
	Russell, E.
Harris of Greenwich, L	Seear, B.
Henderson of Brompton, L.	Sefton of Garston, L.
Hollis of Heigham, B.	Serota, B.
Houghton of Sowerby, L.	Stoddart of Swindon, L.
Jeger, B.	Tordoff, L. [Teller.]
Judd, L.	Turner of Camden, B.
Kagan, L	Wedderburn of Charlton, L.
Lovell-Davis, L.	White, B.
NOT-CONTENTS
Abinger, L.	Kinnoull, E.
Archer of Weston-Super-Mare, L.	Lane of Horsell, L.
	Lawrence, L.
Arran, E.	Long, V. [Teller.]
Ashbourne, L.	Mackay of Clashfern, L. [Lord Chancellor.]
Astor, V.
Astor of Hever, L.	Marlesford, L.
Auckland, L.	Merrivale, L.
Barber, L.	Mersey, V.
Belhaven and Stenton, L.	Morris, L.
Belstead, L.	Mottistone, L.
Blatch, B.	Mowbray and Stourton, L.
Blyth, L.	Moyne, L.
Boyd-Carpenter, L.	Orkney, E.
Braine of Wheatley, L.	Oxfuird, V.
Brougham and Vaux, L.	Pearson of Rannoch, L.
Caithness, E.	Rankeillour, L.
Carnegy of Lour, B.	Reay, L.
Carnock, L.	Renton, L.
Chalker of Wallasey, B.	Rodger of Earlsferry, L.
Chelmsford, V.	St. Davids, V.
Clark of Kempston, L.	St. John of Bletso, L.
Cochrane of Cults, L.	Saltoun of Abernethy, Ly.
Cranborne, V.	Seccombe, B.
Cumberlege, B.	Selsdon, L.
Denton of Wakefield, B	Shrewsbury, E.
Downshire, M.	Skelmersdale. L.
Elliot of Harwood, B.	Stewartby, L.
Elliott of Morpeth, L.	Strafford, E.
Elton, L.	Strathcarron, L.
Erroll, E.	Strathclyde, L.
Ferrers, E.	Strathcona and Mount Royal, L.
Fraser of Carmyllie, L.
Gardner of Parkes, B.	Strathmore and Kinghorne, E. [Teller.]
Gibson-Watt, L.
Glenarthur, L.	Sudeley, L.
Goschen, V.	Suffield, L.
Halsbury, E.	Swinfen, L.
Hanson, L.	Teviot, L.
Harmsworth, L.	Trumpington, B.
Henley, L.	Ullswater, V.
Howe, E.	Vaux of Harrowden, L.
Hylton-Foster, B.	Wakeham, L. [Lord Privy Seal.]
Jeffreys, L.
Jenkin of Roding, L.	Wise, L.

Resolved in the negative, and amendment disagreed to accordingly.

Viscount Goschen

I beg to move that the House do now resume. In moving this Motion, I suggest that the Committee stage begins again at five minutes past eight o'clock.

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

House resumed.