§ 5.31 p.m.
§ Lord Inglewood rose to move, That the draft code of practice laid before the House on 11th May be approved [21st Report from the Joint Committee].
§ The noble Lord said: My Lords, I beg to move. The Trade Union Reform and Employment Rights Act 1993 made various changes to the laws on balloting, including the requirements that ballots should be conducted only by post and he subject to independent scrutiny. These changes mean that union members can now have greater confidence that ballots will be properly conducted.
§ The 1993 Act also introduced for the first time a requirement for unions to provide at least seven days' notice to employers of ballots and strikes. Notification of ballots or strike action is an important right for employers, enabling them to manage their businesses more effectively and efficiently.
§ The current code of practice on trade union ballots on industrial action was last revised in 1991. The draft code before the House today has been amended to reflect the changes made by the 1993 Act.
§ As background it may perhaps be helpful for me to say a few words about the purpose and legal status of the statutory code. The aim of the code is to set out and explain the requirements of the relevant law and to help unions and employers turn what is on the statute book 901 into actual best practice. I must stress that, as noble Lords are undoubtedly aware, the code does not—indeed, cannot—change or add to the law. It merely puts the law in a more accessible form and makes some recommendations for good practice. These recommendations are not legally binding. However, the code is admissible in evidence and may be taken into account by a court or tribunal if it appears relevant to any question arising in proceedings.
§ Section 204(1) of the Trade Union and Labour Relations (Consolidation) Act 1992 states that when a Secretary of State proposes to issue or revise a code of practice, he shall, after consultation with ACAS, prepare and publish a draft of the code, consider any representations made to him about the draft and may modify the draft accordingly. A draft was therefore issued for public consultation last October, for comments by 19th January this year. In all, we received 21 responses: 14 from employers or employers' organisations and seven from trade unions or similar bodies. All comments were given detailed consideration and a number are reflected in the revised code before your Lordships today.
§ The revised draft code has been given a new title to cover both the balloting process which a union must satisfy to be protected against proceedings which could otherwise be brought to stop it organising industrial action and also the new requirement to give notice to employers of a union's intent to conduct a ballot or call for industrial action following a ballot. In broad terms, the most significant changes from the previous code are: first, new recommendations about the information which a union should in certain circumstances include in its notice to employers of intended official industrial action; and, secondly, new recommendations, and a clarification of the description of statutory requirements, to encourage unions to let employers know if there are significant differences between information notified in advance and what happens when the ballot is actually held. The revised code also confirms that union notices, when they are provided, must represent the union's genuine intentions.
§ Like the current code, after an opening section describing its scope and legal status, the revised draft code follows the sequential process involved in balloting, with the addition of the provision of notice to employers. It follows the practice of previous industrial relations codes by showing re-statements of the requirements in primary legislation against a shaded background; the remainder of the text comprises "good practice" recommendations or similar guidance.
§ It may be helpful if I outline briefly the content of the code. Section A explains the scope and legal status of the code, its intended purpose and the assistance that it can provide to unions, their members and others. Section B makes recommendations about observing procedure agreements and other considerations which should be taken into account before a ballot is held. These recommendations are aimed at ensuring that all possibilities are explored and industrial action is genuinely the last resort.902
§ Section C sets out the new requirements for independent scrutiny of ballots where more than 50 members are given entitlement to vote and recommends that a scrutineer should be appointed before steps are taken to satisfy any other requirements of the law. It covers the requirements of the scrutineer's terms of appointment; and states that there must be no interference with this function from the union or any of its members, officials or employees; and that the trade union must comply with all reasonable requests made by the scrutineer for the purpose of carrying out those functions.
§ The code adds that it may be helpful for a union to entrust additional tasks to the scrutineer (such as the supervision, production and distribution of voting papers and being the person to whom voting papers are returned). It also recommends that unions should make adequate arrangements for scrutiny even where ballots involved 50 or fewer members, though these do not necessarily have to involve an independent scrutineer.
§ Section D restates the law on the method of voting; entitlement to vote without interference or constraint; and entitlement to vote in secret without any direct cost. Recommendations are made about arrangements to ensure secrecy of voting.
§ Finally, Section E restates the law on ensuring that votes are accurately and fairly counted and on the notification of details of the ballot result. This section also makes recommendations about procedures to ensure accurate and fair counting of votes; systems to help ensure that statutory requirements about notification of the result are fully satisfied; obtaining and providing copies of the scrutineer's report; notifying details of ballot results; and matters which a union should take into account before deciding to organise industrial action.
§ An issue which has been of concern to a number of those commenting on the code is that unions may be required to provide names of individual members to employers. There was a full debate on this matter prior to the introduction of the legislation and it would not he right now to go over the same ground in any detail. However, it might be helpful for me to remind your Lordships of what Ministers said during the passing of the legislation; namely, that there could be some occasions when it would be necessary for unions to give names to employers because, realistically, there could be no other means of identifying those involved. Since the 1993 Act, the case of Blackpool and the Fylde College v. National Association of Teachers of Further and Higher Education has shown that the law is working exactly as Ministers had said it would. In that particular case, around a third of the college's lecturers were union members but the employer had no way of knowing who most of them were, and therefore no way of putting the college's case to those who were to be balloted, unless the union provided their names.
§ It will of course he rare in practice for a union to have to give names. In many cases the employer will know which employees arc to be balloted, for example, because they pay their union subscriptions by check-off deductions from their wages. But nobody need he afraid 903 to do so since the law provides full protection for employees against dismissal or other action on the grounds of trade union membership.
§ This code of practice reflects the spirit and the letter of the 1993 legislation on this issue, making clear that the need to provide names arises only if workers cannot be identified by other means; for example, grade or work activity.
§ This code, if approved, will be a valuable source of reference for unions, union members and others. Taking account of its recommendations can only help improve the conduct of ballots, and that in turn will help continue the improvement in this country's industrial relations which has been such a feature of the last decade. Following the recommendations of this code will help ensure that union members have a proper, democratic voice in their union's decision on whether to call industrial action; it will enable employers to put their side of the argument before workers vote on whether to strike; and it will enable employers and others to have a reasonable period of notice during which to prepare for the effects of industrial action. The guidance helps explain the requirements of the relevant law, so that nobody can complain that he or she was unaware of the law or could not understand it. Finally, the good practice recommendations are aimed at avoiding disputes both within unions and between unions and employers. Following them will improve industrial relations.
§ For those reasons I commend the draft code of practice to your Lordships.
§ Moved, That the draft code of practice laid before the House on 11th May be approved [21st Report from the Joint Committee].—(Lord Inglewood.)
§ 5.40 p.m.
§ Baroness Turner of Camden
My Lords, I thank the Minister for his explanation of the draft code of practice before the House. He will not be surprised to learn that I do not much care for it. I do not care for the legislation on which it is based—the Trade Union Reform and Employment Rights Act 1993. I accept, with reluctance, that despite vigorous opposition in this House mounted by myself and my noble friends Lord McCarthy and Lord Wedderburn, we were unable to persuade either the Government or the House at that time that the legislation then proposed was weighted heavily against trade unions and was therefore unjust and unfair.
We accept, as the Minister said this afternoon, that industrial action is a last resort. I speak as a former senior trade union official. I spent a large part of my working life as an official and had my share of disputes—and resolved them. It should not be assumed, as the Government seem to, that unions exist for the purpose of running strikes. We accept that strikes are damaging, not only to industry and commerce, but often to the members themselves who have to exist on strike pay and may lose substantial amounts of money. It is a worrying time for the members, their families and union officials who feel themselves responsible for their well-being. But the right to strike must exist as a longstop. It is only forbidden by law in oppressive, despotic and undemocratic regimes. The ultimate right 904 of workers who have a grievance collectively to withdraw their labour is an important right; indeed, a civil liberties issue. Having said that, we also agree with ballots and participation by members in the industrial decisions that govern their lives. My union always balloted its members, and not only on dispute action, but also on other issues directly connected with members' employment.
Our objection to the 1993 Act is that it sought to tie up unions in a great deal of bureaucracy before they could obtain immunity; in other words, before their actions would be regarded as lawful within the meaning of the Act. The same thing applies to the draft code. In my copy the coloured sections presumably refer to the actual law while the uncoloured or white sections are the code, which is not the law but a kind of guide. In my view all that simply adds to the red tape, indeed to the hurdles that unions must surmount before they can be sure that they have complied adequately with all requirements.
The code contains great chunks of print dealing with the provision of notice to employers, the printing and distribution of ballot papers, communication with members, counting the votes accurately and so forth, none of which is in the law as I understand it. It simply adds to the amount of material that must be digested by union officials before even contemplating industrial action. It is far too much and elaborates unnecessarily, I should have thought, what is contained in the Act.
Again, the code seems to be one-sided. One would not think, on reading this material, that it takes two sides for there to be a dispute. The employer may well be culpable; may well have refused to negotiate or attempted to undermine existing terms and conditions and so forth. It is clear that in those circumstances the Government feel that employees should put up and shut up. To draw attention to what I mean, the code makes the point—this is stated on the sample ballot paper—that the member must be allowed to vote without interference from or constraint imposed by the union or any of its members. But what about constraints and intimidation—I can assure your Lordships that they are quite common—indulged in by employers?
Furthermore, paragraph 38 states that the union should ensure that nothing appears on the ballot paper which might encourage a voter to answer one way or the other. Apparently, therefore, the union may not make any recommendation to its members. Then there is the point made in paragraph 46 indicating that the ballot could fail to satisfy requirements unless the union makes sure all members, officials, employees and so forth do not, even inadvertently, exercise constraints upon those entitled to vote. That is an impossible requirement, particularly in a large union. It is true that there is a provision whereby the union executive may retain immunity by repudiating the actions of such an individual, but the action may not come to its attention for some time, perhaps not until someone mounts a challenge.
The provisions are much too sweeping and go beyond what the law, bad as it is, requires. Paragraph 48 refers to the special arrangements which need to be made to ensure that voting papers reach members who are on 905 holiday, sick or on maternity leave. That again may be asking too much of a union which may have large numbers of members and would not normally keep records of people on maternity leave, on holiday or sick.
There is then the point to which the Minister referred in his explanation, which gave us so much trouble when we debated the Bill in the House. I refer to the requirement which could mean that employers have to be supplied with the names of union members. I well remember the arguments I advanced against this when we debated the Bill. I was assured by the Minister, and it has been repeated this evening, that although the Government wanted to retain that requirement as a longstop, it was most unlikely that it would ever be used in normal practice. It now transpires that there is a case—to which the Minister referred this evening—concerning NATFHE—where the judge did not take the view that it would be a rare requirement; indeed, quite the contrary.
If the Government's view is that that requirement should exist only in rare cases, a much greater attempt should have been made to see that it was quite specifically included in the code. As it is, I can tell the Minister from my own experience that there are members, particularly those in supervisory or senior positions, who may be promoted but who retain their union membership and with that the right to have a ballot paper, who may not want to have their contributions deducted by check-off and who may not want their employers to know that they are still union members and are still entitled to vote. I made a plea on behalf of such people when we debated the Bill and it attracted a little sympathy even from noble Lords on the other side. I am disappointed therefore that more has not been done in the code to emphasise the points that were then made.
Of course the Government claim, and the Minister did so again this evening, that their so-called reforms have reduced the number of industrial disputes and have been responsible for what is claimed to be a great improvement in industrial relations. I do not agree. There has been a large increase in unemployment since the late 1970s when the last Labour Government held power. Not only that; those in employment feel a great deal less secure, as I said when we debated the casualisation of the labour market last week. Manufacturing industry in particular has shrunk in size; far fewer jobs are available in what remains. Those are all potent factors in reducing the number of disputes and the readiness of employees to risk what they have, even if it is unsatisfactory. The legislation has assisted the general sense of insecurity because unions are seen as having less power to protect their members. As I said in the debate last week, the general sense of insecurity and the lack of the feel-good factor may well give this Government a great deal of trouble when the next election occurs.
In the meantime, since the code has already been through the other place, I assume that we have no alternative but to accept it here. However, I understand from my noble friend Lord Wedderburn—who I am glad to see is with us tonight—that he believes that a section 906 of the code is actually wrong in law. I believe he has given notice to that effect. If that is so, then the Government should take it away and look at it again.
§ 5.48 p.m.
§ Baroness Seear
My Lords, we on these Benches supported the earlier stages of the trade union reforms which were brought in by successive Conservative governments and felt that a great deal of reform was needed. But as the legislation progressed, particularly the 1993 Act, we felt that the Government were going much too far and were trying to undermine trade unionism in this country. We have said on a number of occasions that it is not possible to run an industrial country and a successful economy where large numbers of people are employees without having properly organised trade unions with proper rights, properly protected.
The Government must recognise that it is time to strengthen responsible trade unionism rather than attempt to undermine it, which has been their policy all along. We accepted, and accept willingly and support, the idea of ballots. The noble Baroness, Lady Turner, accepted that ballots were a good introduction. It was one of the pieces of legislation to which we gave unqualified support. The Government got what they wanted long ago and it is time to strengthen the position of responsible trade unions rather than to undermine them further.
I agree with the noble Baroness, Lady Turner, that in much of the detail of the order there is a great deal of unnecessary burden placed on trade unions in the organisation of strikes. The right of association is an essential human right. But the right of association in the industrial scene means nothing unless there is the right to withdraw labour and that means that properly conducted and under proper conditions the strike is an essential part of an essential human right. We all know that it should be used only in exceptional circumstances, but when it is being used, the employees and members of the trade union should be entirely untrammelled in their right to use it within the framework of the law.
In our view the Government have gone too far in trying to restrict proper trade union activity. I should like especially to refer to the point made towards the end of the speech of the noble Baroness, Lady Turner, and on which we spoke with considerable force when the legislation was progressing. That is the question of the employer's right to have names of people who arc members of trade unions. To belong to a trade union is a right. It is a right of the individual person and it is not the business of the employer or anyone else to decide who is a trade unionist and who is not. There are people who do not wish the employer to know. While the noble Lord may say that the law protects them against victimisation, there are all manner of ways in which people who displease employers can he handicapped without it reaching the point of being anything which could legally he described as victimisation. We consider that the decision to give the employer the right to have those names is quite wrong.
907 The noble Lord, Lord Inglewood, will no doubt say, as so many people on the Government Front Bench say on occasions such as this, that it is only a small matter, that it will not happen very often, that it will happen only on rare occasions. That is no argument whatever. Good law is about dealing with exceptional circumstances. In the majority of cases there are not issues that have to be raised, but it is in the exceptional case that the law is important. The fact that it does not happen often does not make a bad law into a good law or a bad regulation into a good regulation. I repeat that we accept the opportunity for strike ballots and we accept that there has to be a code to deal with that. But we consider that some of the detail of the code is very mistaken.
§ Lord Boyd-Carpenter
My Lords, this is an excellent document which will be of considerable help to those engaged on both sides of industry in the event of disputes. The noble Baroness on the Opposition Front Bench objected to the code on the ground that it contained too much material. That is a criticism which can so often be made—and rightly made—of a great many government publications. But what I think the noble Baroness failed to recall is that sometimes industrial disputes are conducted not by high-powered unions with skilled and experienced management but by small unions without very much expertise or knowledge available among their officials. Therefore it is desirable, in order to cope with such cases, that there should be a very full exposition of the right conduct of a dispute of this kind.
This document will very much help in, I am glad to say, the increasingly rare cases of disputes of this kind. The noble Baroness tried to brush aside a conspicuous feature of our industrial scene over the past few years. I refer to the striking—that is perhaps the wrong adjective—the noticeable reduction in industrial disputes. It is not good enough just to say that there is unemployment and so on because unemployment itself—
§ Lord Boyd-Carpenter
My Lords, if the noble Baroness will wait just a moment, I am in the middle of a sentence. I shall give way to her when I have finished it. It is desirable to remember that unemployment is diminishing quite rapidly while, on the other hand, industrial disputes do not seem to be increasing. I shall certainly give way to the noble Baroness.
§ Baroness Seear
My Lords, I rise to make the point which I am sure the noble Lord is expecting me to make. Of course unemployment affects strikes. All the statistical records show that whenever there has been a high level of unemployment the level of strikes has fallen quite dramatically. We shall have to wait a long time to know whether it is the reforms rather than the economic situation which have had this effect on industrial relations.
§ Lord Boyd-Carpenter
My Lords, the noble Baroness cannot just brush aside the fact that the number of industrial disputes has very much diminished 908 and at the same time unemployment has been diminishing very substantially. She cannot just brush that aside and say that because of low unemployment there has been an improvement. There has been a real improvement in industrial relations.
§ Baroness Turner of Camden
My Lords, does the noble Lord agree that the new employment, such as it is, is often part-time and very often much more casual and much less secure? It is the lack of security that contributes to the unwillingness to risk what one has.
§ Lord Boyd-Carpenter
My Lords, that is another very interesting theory. The fact that the noble Baroness cannot dodge is that the number of industrial disputes is only a fraction of what it was a few years ago. Therefore, in that context, it is very desirable that the position should be set out as clearly as it is in this document. It is more than possible, as I was saying a moment ago, that such disputes as there are will be carried on by unions of very limited experience. It is therefore desirable that the legal and other factors affecting the handling of these disputes should be set out clearly and fully so as to give real guidance to those engaged in the dispute, both on the employer's side and on the union side.
I very much welcome the production of this excellent document. It is yet another example of the good industrial relations policies of which the present Government have every reason to be proud.
§ Lord Wedderburn of Charlton
My Lords, as my noble friend said, I have given the Minister notice, albeit very short notice, of a point which is central to the draft code and I must therefore put aside all points other than that with more than my customary moderation, failing to argue with the noble Lord, Lord Boyd-Carpenter, although he told us that it is important that the code should be clear to both sides—I shall come on to that point—and also with the Minister; we shall see perhaps in Hansard whether he did not justify the protection of those who were taking industrial action by virtue of the protection against dismissal of those undertaking trade union activity. If he did, he was, with respect, wrong, because trade union activity does not in this jurisdiction, although it does in most Western European jurisdictions, include industrial action.
The point of which I gave the noble Lord notice is, it is true, a short but central one to the code and it has emerged only recently, although perhaps some of us should have seen it before. But that can be said of everyone else. If it is right, the Minister must take back the code and have it altered just slightly—I repeat, just slightly—but in respect of a point which has engaged the interest of many of your Lordships. I refer to the section which requires the union, when inducing its members to take industrial action, to give seven days' notice in the course of which it must describe the members. It is quite clear that in many situations that will mean naming them, as the Government now well know from the case to which the Minister averted of Blackpool and the Fylde College.
909 When the Government describe the effect of this section they do so in the annexe on page 24. Since this is a point of law I have to ask your Lordships to bear with me in reading the precise words into the record. Paragraph 5 of the annexe states:A trade union which organises f industrial action without satisfying the requirements of section 226"…that is the basic section on balloting—or 234A (for notice to employers of official industrial action)"— that is the section I am addressing to the Minister—of the Trade Union and Labour Relations Act 1992 will have no Immunity'. Without immunity the trade union will be at risk of legal action by; (i) an employer (and/or a customer or supplier of such an employer) who suffers (or may suffer) damage as a consequence of the trade union's unlawful inducement to his workers to break or interfere with the performance of contracts".It is my submission, which is now shared by a large number of people—it was also shared by the Minister, the noble Viscount, Lord Ullswater, during the debates in 1993 in the passage of the Trade Union Reform and Employment Rights Bill—that the words in brackets,(and/or a customer or supplier of such an employer)are wrong in law. In saying that, I appreciate that this passage is on a white page and not on one of the beige pages which purport to state the law. It would be extraordinary if anyone suggested that merely being on a white page was any excuse for a mistake in law in this code of all codes. It is undesirable that the code should state the law wrongly; it is improper and arguably ultra vires if it does so.
What is the ground on which I put to your Lordships that very simple point? It may be summed up by saying that the Government have extended the range of plaintiffs more widely than Section 234A, which was inserted into the 1992 Act by the 1993 legislation.
The union, in giving seven days' notice, must identify and describe in order that the employer may ascertain the members who are about to take action seven days later which are continuous or discontinuous. But the obligation to make that description is owed and expressly stated in Section 234A(1) to be owed "as respects his employer". It is quite clear that that obligation is "as respects his employer".
It does not stand alone in the Act. There is another place in Section 226A. That also clearly and explicitly imposes the obligations to give the employer a ballot paper and to notify him who is likely to take part by describing the individual members. It appears in two places in the Act. It imposes a duty only "as respects his employer".
What the noble Viscount, Lord Ullswater, and my noble friend Lord McCarthy and myself debated in the course of the passage of the 1993 Bill, was whether or not there were different hoops through which the union must jump as regards the person who turns out to be the plaintiff. That is slightly absurd because the union must decide what to do before it knows who the plaintiff is. That is the point which we kept putting to the Minister.
Later, the Minister corresponded with me. I suspect that his filing system will retrieve the letter more easily than mine. We exchanged correspondence and the Minister agreed with me in the end that it was the Government's intention to insert different hoops for 910 different plaintiffs or applicants, as they might turn out to be. The central point of that correspondence was a different person; namely, a member of the union, who can demand a ballot to be supportive of the action as regards the hoops in the new subsection (2) of Section 62.
Noble Lords will understand me when I say that "hoops" describe the large number of acts which have to take place. There has to be a secret ballot; it has to be on paper and by post. All those requirements are of course common to the different categories. But as regards the member of the union, there is one small hoop which is not demanded. That relates to notifying the employer of the result. Regarding what we might call "ordinary plaintiffs", that requirement is inserted in the new subsection (2) of Section 226.
Therefore, we were left with this. There could be a member who, if he applied to the court, the union would get through even though it had failed in just this one small step. There could be the ordinary plaintiff in respect of whom what I might call the ordinary list of requirements such as secrecy, post and so on were satisfied. But then the third hurdle came in which was debated separately during the passage of the Bill. Two extra hurdles were inserted in respect of the employer; namely, Sections 226A and 234A. The ballot notice had to be given before the ballot and after the result the notice of industrial action had to be given to the employer.
That is absolutely clear, and it still is, but I cannot see why. If one is advising a trade union, it is no good saying to them, "Well, if it turns out to be just a member, you could have omitted that, or if it turns out not to be the employer who brings the action, you could have omitted this". But that is the law and that is what the Government confirm it to be. Therefore, it is very important indeed if the Government now say in the code that a plaintiff, who was not included in respect of the two extra requirements for the third category, can now bring a legal action which the Act manifestly says he cannot; namely, a customer, a supplier or anyone else, other than the employer in respect of whom the duty is owed. Plainly, the protection is lost only, "as respects his employer", which is the precise phrase used.
This is not a small point. There are civilised employers. The Minister looks surprised. I shall tell him why it is not a small point. There are civilised employers who are not demanding individual names. There are civilised employers who say, "We believe you ought to give seven days' notice"—the union may disagree with that—"but we are not going to ask for the names of the members as long as we have a general idea". To do that puts the temperature up in any dispute. Anyone who has ever seen an industrial dispute knows perfectly well that it raises the temperature, and some of us wonder why that provision is not there.
If a customer or supplier, and no doubt a lot of other people, can rest on the failure to give names, what is the point of the employer acting sensibly like that? It means that some other person will go running off to court, if the code is right; namely, the customer or supplier. But the law says that that is not the case.
911 Either this code is going to encourage a lot of customers and suppliers to waste their money on actions before we get it straight or the Minister can take this matter back and put it right. It is a well-known point in analysis. The 1993 Bill was very difficult to analyse. As I say, it took correspondence after the debates for it to be made clear that we were right in saying that the hoops through which the union must go are not the same as regards all types of possible plaintiff. That is the point.
Section 234A does not give the supplier and the customer a right of action if the union fails in some respect or other. There are other respects because the union has to give seven days' notice and to say whether the action will be continuous or discontinuous. There has to be no commencement of the action before the proper day in either of those categories. Giving the names is only one of the points. The most important introduction to industrial conflict law in 1993, was Section 234A.
Therefore, I urge and entreat the Minister to go away and discuss this matter before he puts it through. He can put it through tomorrow if everyone says that the point I make is wrong. I can certainly bring in a few opinions to say that the point is right. In other words, it is not my particular point. It should have been raised before. To put through a code which is clearly wrong and on a point which is of great importance, which goes to the centre of many disputes, makes one ask: how far are these obligations to be pressed on the factory floor? What goes into the law is not always what happens in real life.
The code as it stands is an incitement to people to say, "Look here, you can't give way on any of this or somebody else will bring an action for an interlocutory injunction"—because that is how it is done. Therefore, I beg the Minister to take the point seriously and although I am sure that the Government are counting their days for legislation on the fingers of a number of hands, it would not waste many hours if the Minister took this point away and got further advice on it from independent counsel.
§ Lord Inglewood
My Lords, I am most grateful to all the noble Lords who have participated in this debate. I begin by—I shall not say "apologising" because that is probably the wrong word, but by making clear that I am probably the only participant in today's debate who was not present for your Lordships' debates on the 1993 Act. So, not merely because it is beyond the scope of the code of practice that we are debating this evening, but also because I am not in a position to do so, I think it appropriate to leave that matter on one side. Those battles have been fought and won in the past; they are not battles that should be fought again this afternoon.
Equally, much reference has been made to the Government's record on employment and other matters. We have had some kind comments from my noble friend Lord Boyd-Carpenter who underscored the real achievements of this Government in improving the economic condition of this country and, with it, the number of jobs.
912 However, criticisms have been levelled at us from the Benches opposite. As the noble Baroness, Lady Turner of Camden, said, we debated such matters just over a week ago, so I hope that the House will forgive me if I say again that because we have discussed the matter so recently, this is not the time to go over all that ground again. We had an excellent debate on that occasion and I do not believe that we can take the matter much further at this point.
A number of criticisms have been made about what we are doing. I shall endeavour to touch on them and to reassure your Lordships. A point that is sometimes overlooked is that, as the noble Lord, Lord Wedderburn, explained, we are talking about an extremely complicated and technical aspect of the law. In those circumstances and against that background, we do not believe that it is appropriate in generic terms to level at this code of practice the criticisms that in some way or another it is too long or too detailed.
As I have said, we are talking about something that is extremely complicated. The purpose of the document is to help ordinary people the length and breadth of the land to deal with a topic which, by anybody's analysis, is extremely difficult. We hope that the provisions will not merely help those who are involved in this area, but that they will also help labour relations in general because, as has been explained, good labour relations are good for the country.
It has been suggested that the code should equally have been addressed to employers. The answer is very simple. The law itself is addressed to unions because it is unions which can benefit from the statutory immunity provided that they follow the correct procedures. The decision to organise a ballot is solely for the union. Any subsequent decision to call industrial action is also solely for the union. The decision on which members to ballot or call out is also for the union alone. The employer has no part in any of this process. His workers may break their contracts of employment with him, and he is entitled to be informed about a ballot and any subsequent call for action, so that he can if he wishes put his side of the argument and take any possible steps to reduce the damage caused by industrial action.
Perhaps I may now refer to the case of the Fylde College and the National Association of Teachers in Further and Higher Education. The reason that the statute provides that the employer should have identified for him those who are union members and who are contemplating action is, first, so that the employer can exercise his legitimate right to put his side of the argument and, secondly—the Benches opposite did not touch on this point at all—because the employer employs people for a particular purpose and if they down tools and leave for a period, he has to find alternative ways of trying to organise his business. In those circumstances, it is entirely reasonable that he should be able to mitigate the damage that he might otherwise suffer.
I fully understand the comments made about this by the noble Baronesses, Lady Turner and Lady Seear, but it would be useful to consider the relevant section of the statute. The relevant notice has to describe, so that he, the employer, can readily ascertain, 913the employees of the employer who the union intends to induce or has induced to take part or continue to take part in industrial action".It is clear that that does not mean having to name names. The test is satisfied however it is done so that the process that I have described can properly be carried out.
I believe that it was the noble Baroness, Lady Turner, who referred to the steps that have to be taken to ensure that ballot papers are properly distributed. Much has been made of the recommendation that the union should make special arrangements to get voting papers to members who are on holiday, sickness or maternity leave at the time of the ballot. Again, I re-emphasise the fact that the code cannot add to the law. The law requires that as far as reasonably practicable every person properly entitled to vote must be sent a voting paper and given a convenient opportunity to vote. Obviously what is reasonably practicable will depend on the circumstances. In a national ballot it would not be reasonable to expect a union to be able to take account of individual members' circumstances. But in a ballot at a small employer where perhaps only 10 or so union members are involved, all of whom are well known to the shop steward, it could be perfectly reasonable to take account of such matters as sickness or maternity leave. The code simply reminds unions that they must do what is reasonably practicable. I do not believe that that is in any way objectionable.
I turn now to the comments made by the noble Baroness, Lady Seear. She seemed to be arguing tautologously. If I heard her correctly, she said that it is right that there should he the right to strike which is untrammelled within the limits of the law. I do not think that anybody in the Chamber would dissent from that basic proposition. What we are concerned about is how circumscribed by the law that activity will be. In contemplating such matters, I believe that it is relevant to say that the way in which we protect unions in this regard is by a form of statutory immunity from actions in tort for inducing breaches of contract—
§ Baroness Seear
My Lords, the noble Lord referred to me particularly. Of course, I said that there was a right to strike within the limits of the law. The whole point is that I was complaining about the nature of the law.
§ Lord Inglewood
My Lords, I was far from clear at that stage exactly what the noble Baroness was arguing in this context and where she stood in the context of the legislation as it relates to this code of practice. I am grateful to the noble Baroness for her intervention which has clarified the matter.
The final point that I should like to address specifically is that raised by the noble Lord, Lord Wedderburn, who advised me that he intended to raise a point with regard particularly to page 24 of the code of practice. With your Lordships' agreement, rather than endeavour to give a quick answer to what was on the noble Lord's own admission an extremely technical point and because I do not have the statute before me, I should like to adjourn the House for pleasure for, say, 10 minutes so that I may be properly advised on the particular point raised. It is clearly an important point. Although the noble Lord indicated earlier that he intended to raise a point on that part of the code, we 914 were not exactly clear as to the point that he intended to address. Therefore, I beg to move that the House do now adjourn during pleasure for about 10 minutes.
§ Moved accordingly, and, on Question, Motion agreed to.
§ [The Sitting was suspended from 6.18 to 6.30 p.m.]
§ Lord Inglewood
I am grateful to your Lordships for allowing me to take instructions on the matter. I am also grateful to the noble Lord, Lord Wedderburn, for giving us the benefit of his widely recognised expertise.
I understand that the circumstances pertaining to the extent and nature of the immunity referred to in paragraph 5 on page 24 of the draft code of practice are to some extent different. That was the point made by the noble Lord, Lord Wedderburn. We must bear in mind that the paragraph appears in the annex to the code of practice. While it may he in a section which refers to trade union liability, it is not in the part of the code to which I referred in my opening remarks. That appears on a coloured background.
In paragraph 5 we are providing a gloss on the law. The code of practice is not a legal textbook. It is intended in simple language to give a general indication of the law in this regard. In respect of Sections 226 and 234A various immunities are granted. As I have explained, the nature of those two immunities is slightly different. Nevertheless, depending on the particular circumstances—but in any event, relating to the circumstances which are described in paragraph 5—a trade union will be at risk. We are not saying that it is inevitably the case that a successful legal action might be brought. We are saying that there is a risk that there may be a legitimate case. I believe that against that background it is a proper form of words to use in the circumstance.
It is not intended to be a definitive and precise description of the law; it is intended to be a general description of the law in this area. In that regard, I believe that it is correct that, depending upon where the immunities exist, there can under certain circumstances be occasions when those immunities can be challenged in the courts. It is merely the case that in this instance immunity can be changed in a slightly different way, depending on whether the action relates to Section 226 or Section 234A.
When describing the process which led to the order coming before your Lordships' House, I explained that there had been wide consultation on the document. It has been distributed widely and examined by a large number of people. Twenty-one specific responses were received from bodies such as the CBI, the Engineering Employers' Federation, the Trades Union Congress and the Scottish Trades Union Congress. The text was not picked up by anyone as being in any way wrong. That is important because, as I explained earlier, we are talking about a gloss on the law to give an indication of what the law is. We are not giving an exact analysis of a precise situation such as one would expect to find in a legal textbook or to receive in counsel's opinion or from a solicitor.
915 I believe that in that context what we have stated in the code of practice is correct. There is a risk of legal action. Because it does not go further than that, we are perfectly in order to have included the paragraph in that particular form of words.
§ Lord Wedderburn of Charlton
My Lords, perhaps the Minister will allow me to clarify the new interpretation which he has put forward and which, I suspect, is not present in the minds of the many people who were consulted on paragraph 5.
The case appears to be that the Government are saying that without the immunity in question, which includes Section 234A and the duties owed only to employers, the trade union will be at risk of legal action whether the person bringing it is the employer, the customer or the supplier. However, what is implied is that the employer will win the legal action and that the customer or supplier will lose the legal action. The Government are saying merely that someone might bring a legal action, just as they might have said that an Eskimo might bring a legal action or that the union might be at risk of a person in Tunbridge Wells bringing an action whether or not they might win.
Does the Minister assert that that is the way in which the ordinary person, to whom the code is addressed, will read it? Will not the ordinary person say, "When the code says that the union is at risk of legal action by employer, customer or supplier it is saying that the union is going to lose if there is no immunity."? That is the normal meaning of those words. Is it the Government's intention that that is not the meaning? The meaning is that there might be a legal action in one court or another here or in Scotland and that it might succeed or it might not. What is the point of a paragraph stating that when the rest of page 24 deals with who will win and who will lose?
§ Lord Inglewood
I am grateful to the noble Lord, but it appears that he is now the one who is putting a gloss on this part of the document. He is reading it in a manner which, by his own admission, is intended to spell out that we are trying to make the document as frightening as possible. Under the statute there is a risk that one might break the law under these circumstances. It is reasonable to point that out to people, bearing in mind that they may be going forward and taking the steps that we are debating.
In no sense are we using a valued and weighted phrase in stating:the trade union will be at risk of legal action".If the paragraph had stated:the trade union will have broken the law",I can see that that may well not he true. However, in the generality of the case and in the gloss using layman's language, there is a real possibility that under the circumstances described there could be a risk of legal action against the trade union. I do not believe that the inclusion of those words in any way goes to the heart of the matter.
§ Baroness Turner of Camden
My Lords, I am not a lawyer and I appreciate that my noble friend Lord Wedderburn knows a great deal more about these issues 916 than I do. However, I believe that if the code is intended simply to put a gloss on the law, that gloss ought to be correct and not incorrect. My noble friend suggested that the deletion of the words,and/or a customer or supplier of such an employer",would put the whole statement in line with the law as it now stands. The Minister appeared to agree that my noble friend was right in his estimate of what the law is.
§ Lord Inglewood
My Lords, the point that I am making—and it was refined by the comments of the noble Lord, Lord Wedderburn—is that Sections 226 and 234A relate to immunity. The important point is that under certain circumstances there may be immunity which may lead to an action by an employer which will not lead to an action by a customer or supplier of such an employer. It is important to look at the text. The word "immunity" appears in the heading in quotation marks. It is a general word. Paragraph 5 of the code states:Without immunity the trade union will be at risk of legal action by; (i) an employer (and/or a customer or supplier of such an employer)".The employer has a wider course of action open to him if he wishes to proceed than does a customer or supplier. But that does not gainsay the fact that there are circumstances when the customer or supplier can bring an action. So long as there is a possibility that such a customer or supplier can bring an action, the proposition as stated in paragraph 5 that the trade union will be at risk of legal action is entirely consistent.
§ On Question, Motion agreed to.