REPEALS OF THE PRINCIPAL ACT

§ Mr. Barney Hayhoe (Brentford and Isleworth)

I beg to move Amendment No. 1, in page 1, line 8, leave out paragraph (a).

§ Mr. Deputy Speaker (Mr. George Thomas)

With this we can also discuss the following amendments:

No. 3, in Clause 2, page 1, line 22, at beginning insert: '( ) For section 5(3) and (4) of the principal Act (Rights of workers as to arbitrary or unreasonable exclusion or expulsion from trade union) there shall be substituted the following subsections: (3A) A worker aggrieved by his exclusion or expulsion from any trade union, branch or section may apply to a Tribunal appointed for the adjudication of such grievances for a declaration that he is entitled to be a member of that union, branch or section. (3B) The Tribunal shall be appointed by the General Council of the Trades Union Congress in consultation with the Secretary of State and the Chairman of the Conciliation and Arbitration Service and shall have an independent person with legal qualifications as chairman and two other members. (3C) The procedure at such a Tribunal shall be in accordance with rules made by the Trades Union Congress and approved by the Council on Tribunals. (3D) If at any time there is not existent such a Tribunal and such rules, such an application may be made instead to an industrial tribunal in accordance with industrial tribunal regulations. (4) Where any such declaration has been made or by the Tribunal or by an industrial tribunal, as the case may be and has not been implemented by the union, branch or section concerned within any period specified in the declaration or if no such period is specified within a reasonable period, the worker may apply to the High Court or, in Scotland, the Court of Session for an injunction, interdict or such other relief (including compensation) as the Court may think just and expedient in all the circumstances of the case"'. 389 No. 5, in Clause 2, page 1, line 22, at beginning insert: '( ) For section 5(3) and (4) of the principal Act (Rights of workers as to arbitrary or unreasonable exclusion or expulsion from trade unions) there shall be substituted the following subsections:—

1. "(3A) A worker aggrieved by his exclusion or expulsion from any trade union, branch or section may apply to a tribunal appointed for the adjudication of such grievances for a declaration that he is entitled to be a member of that trade union, branch or section.
2. (3B) The tribunal shall be appointed by the Secretary of State in consultation with the General Council of the Trades Union Congress and the Chairman of the Conciliation and Arbitration Service and shall have an independent person with legal qualifications as chairman and two other members.
3. (3C) The procedure at such a tribunal shall be in accordance with rules made by the Trades Union Congress and approved by the Council on Tribunals.
4. (3D) If at any time there is not existent such a Tribunal and such rules, such an application may be made instead to an industrial tribunal in accordance with industrial tribunal regulations.

(4) Where any such declaration has been made or by the tribunal or by an industrial tribunal as the case may be and has not been implemented by the union, branch or section concerned within any period specified in the declaration or if no such period is specified within a reasonable period, the worker may apply to the High Court or in Scotland, the Court of Session for an injunction, interdict or such relief (including compensation) as the court may think just and expedient in all the circumstances of the case".'

§ Mr. Hayhoe

Amendment No. 1 is a paving amendment for the other amendments which you. Mr. Deputy Speaker, have indicated we can discuss with it.

We regard this as a thoroughly bad Bill. We do not like any part of it. However, the House gave it a Second Reading and some minor changes were made in Committee. We seek by this amendment and by others which will be moved by us to improve the Bill. By this amendment we seek to maintain rights and safeguards for individuals who have been excluded or expelled from trade union membership in an arbitrary or discriminatory fashion. I think there is total agreement in the House that, though the numbers involved are small, the principle is important and it is right that the House should consider and seek ways of dealing with it in a proper fashion.

390 Safeguards were written into the 1974 legislation when Parliament insisted that they be included. They were the subject of quite tight votes, but Parliament decided that provision for them should be made. Now the Governemnt are seeking, once again, to eliminate those safeguards, despite a series of undertakings given by the Secretary of State and others in our debates on these matters. The right hon. Gentleman has gone back on his repeated undertakings or indications that the Government would deal legislatively with the situation.

I remind the House briefly of those commitments. On 22nd March 1974 we were informed that Consideration is being given to providing either in this Bill"— that was the 1974 Bill— or a later one, safeguards against arbitrary exclusion or expulsion from union membership".—[Official Report, 22nd March 1974 Vol. 871, c. 1488.] That was the trailer for something which was to follow either in the Trade Union and Labour Relations Act 1974 or in later legislation.

On 7th May, in column 231 of the Official Report of that date, there was a clear implication that legislation would be prepared. On 23rd May, in columns 202 and 212 of the Official Report of the Standing Committee proceedings on the Bill, the Minister of State referred to this matter. I accept that he did not give an absolute assurance, but what was said on that occasion and on other occasions clearly indicated that the Government were considering a legislative solution.

On 10th July, during the Report stage of the 1974 Bill, the Secretary of State said that the Government would deal with the matter either in this Bill or in the later Bill [Official Report, 10th July 1974; Vol 876, c. 1391.] In column 1395 there was reference to the possibility that the method of dealing with it in a Bill would be by a code of practice.

On 30th July, when the House considered the Lords amendments, we had a clear statement from the Secretary of State when he said: I repeat all the undertakings that we certainly intend to proceed to deal with it in some form or other, either in a code of 391 practice or by some other means, but following consultations with the General Council of the TUC, when we introduce the next Bill in the autumn—the Employment Protection Bill."—[Official Report, 30th July 1974; Vol. 878, c. 503.] In other words, the matter would be deal with in a Bill.

4.15 p.m.

On 3rd December, on Second Reading of this Bill, the Secretary of State said: … we have always claimed and said in all our debates that if we were to reinstitute the legaliy of the closed shop it would be necessary to have some kind of special further safeguard over and above the common law."—[Official Report, 3rd December 1974; Vol. 981, c. 1373.] After all that build-up, over every stage of the former legislation and during the Second Reading of this Bill, indicating that legislation would be forthcoming, the Government now say "We shall not legislate. We shall do nothing to protect and provide safeguards for the individual". The Government will be totally inactive and will leave the matter to the TUC. The Secretary of State indicated on Second Reading what the TUC had in mind. However, although it has put forward proposals for a review committee, it has vetoed any Government action. When the Secretary of State and other Ministers have said that they will do certain things, they meant that someone else would do them and that they would do nothing.

We welcome the TUC initiative and the setting up of the review committee. It is reasonable for us to suppose that if it had not been for the debates initiated by the Opposition precious little would have come from the TUC. However, putting that on one side, I welcome the action it has taken. But that action alone is not enough. How can it be, in view of what the Secretary of State said last year; namely, that safeguards and protection for the small number of individuals who might be adversely affected would require legislative backing and authority and at least the barest bones of some enforcement provisions to ensure that decisions would be brought into effect?

The good faith of the Government and of individual Ministers is at test, and for that reason we have tabled Amendment No. 3. It would make provision in the Bill for the review committee which the TUC has said will be set up. Indeed, we use the same words as were used by 392 the TUC about the composition of the tribunal. We have given it just a touch of statutory backing by including it in the legislation and saying that the procedure it follows should be that approved by the Council on Tribunals. We have gone on to put in a minimum of enforcement or implementation backing for these arrangements.

The amendment tabled by members of the Liberal Party, Amendment No. 5, goes beyond the proposal in our amendment. It reiterates the position adopted in earlier debates by the hon. Member for Rochdale (Mr. Smith), who felt that it would be right for the Secretary of State to appoint and to have responsibility for the review body, after consultation with the TUC and the CAS. I am sure that my right hon. and hon. Friends would be happy if the Government were willing to accept Amendment No. 5. We sought in our amendment to narrow the scope down to the smallest intervention by Government. I accept we may not have the drafting as satisfactory as it should be, but I hope that we will deal with the real issues rather than such pedantic points. There are ways in which these matters can be put right.

There is a further argument used by the Secretary of State against provisions of this kind. On 3rd December he said that they would lead to industrial pressures. He referred to the effect of the 1971 Act. The right hon. Gentleman is guilty of grotesque exaggeration. The figures issued by his Department show that in the last four months of 1974 many more days were lost as a result of industrial disputes than were lost as a result of the existence of the Industrial Relations Act—or proposals for that Act—in the four-year period from the 1970 General Election until the repeal of the Act last year.

Those are the figures contained in Hansard in answers to Questions and in the Department of Employment Gazette. The Secretary of State's argument that this legislative protection, this safeguard for the individual, can lead to damaging industrial clashes does not bear examination. If we take 1974 quarter by quarter and compare it with the previous year we can see that in the second quarter, after the Labour Government came into power, for every four days lost in 1973 393 five days were lost in 1974. That was when the Government had announced that the Industrial Relations Act would be repealed.

In the third quarter of 1974, when the repeal measure was going through the House, for every four days lost in 1973 six days were lost in 1974. If we now take the fourth quarter of 1974, when the Industrial Relations Act had been fully repealed—and when the General Election of the autumn was over—for every four days lost through industrial disputes in 1973 nine days were lost in 1974. This cuts the ground from the Secretary of State's assertion that legislative proposals of this kind were leading to a large number of days being lost.

I hope that the right hon. Gentleman will respond positively to these amendments. Or is he so tightly constrained by the TUC that no departure, however small, is possible from what that body seeks to achieve in legislation? Is the TUC veto upon the Secretary of State so utterly complete that the right hon. Gentleman cannot move at all to give legislative backing to an attempt to provide safeguards for those who may be adversely affected by arbitrary exclusion or expulsion from a union? The test of the Secretary of State will be in his response to these amendments. I hope that he will find it in his heart to agree to them.

§ Mr. Cyril Smith (Rochdale)

I support Amendment No. 1 but wish to speak to Amendment No. 5 standing in my name and the names of my hon. Friends. I would have thought that at the present stage the Government could have found a better use for their time rather than using it to insist upon having their own way in this Bill. All that the Bill is about is removing from the previous measure those things on which the Government were defeated when they were a minority Government, from February to October last year.

§ Mr. Tom Litterick (Birmingham, Selly Oak)

Is the hon. Gentleman suggesting that the Labour Party has no right to carry out its election promises?

§ Mr. Smith

No, certainly not. I am suggesting that there are certain parts of the election manifesto which I would have thought would have been considered 394 to be more important than an attempt to deal with six fiddling little amendments all of which were inserted in an attempt to protect the individual against massive trade union power. Collectively they are not of such importance that the Government need to make their removal a priority. I do not challenge the Government's right to do this.

Of course, when the Secretary of State says "We will do this and that" he is referring to the TUC. I am surprised that anyone should be in any doubt about that. It is becoming increasingly obvious, certainly to my right hon. and hon. Friends and me, that the Minister and the Department are very much in the hands of the TUC. The right hon. Gentleman is not prepared to move in any way if his view is not in accord with that of the TUC. It does not surprise me that he is not willing to make the slightest concession. This is not necessarily because he does not want to do so but because the trade union movement is not prepared to see any concession made. It is obvious that he is virtually a slave of the trade union movement.

§ Mr. Dennis Skinner (Bolsover)

There is such a thing as a mandate.

§ Mr. Smith

I am glad to hear that the hon. Member considers that 39 per cent. of the total vote cast is a mandate. I and my party have always made it clear that we are opposed to the principle of the closed shop and furthermore—

§ Mr. Skinner

Play a different record.

§ Mr. Smith

If the hon. Member wishes to interrupt me I will let him. I am delighted to see that he is so keenly interested in industrial relations. I hope that he is as keenly interested in ensuring that unskilled labour is not paid at skilled rates and that Members who choose to employ people as private secretaries and draw their salaries for them will ensure that they employ qualified people. I am sure that the hon. Member gets the message.

4.30 p.m.

This clause is concerned about the exclusion or expulsion of an individual from a trade union in a closed shop situation. The Liberal amendment seeks to ensure that there is a statutory right of appeal for the individual in that kind 395 of situation, and to ensure that the appeal tribunal, so set up, shall be set up statutorily and shall have statutory powers. As the hon. Member for Brent-ford and Isleworth (Mr. Hayhoe) said, our amendment goes much further than that of the official Opposition. It goes further because we take the view that justice must not only be done in this matter but must be seen to be done.

While we appreciate very much the TUC's gesture in offering to set up a sort of voluntary tribunal, we believe that it is not sufficient for that tribunal to be set up by the very people against whom the appeal is to be made. In other words, if a person is expelled from or excluded from a union and he wishes to appeal against that, the body to which he appeals would be the trade union movement.

What we are being asked to accept is that the trade union movement should have the right to appoint the tribunal that is to hear the appeal of the individual against the decision of a trade union. In our amendment we are arguing that it is right that such a tribunal should be set up but that it should be set up by the Secretary of State, and that its members should be appointed by him and not by the TUC. That, basically, is the only difference between us. Who shall appoint the tribunal? Shall it be the TUC or the Secretary of State?

We believe that however independent may be a tribunal appointed by the TUC, and however it may attempt to give an honest, balanced view of the case before it, ultimately any person who appears before that tribunal and loses his case will inevitably say that he has had a raw deal because the people who tried his case were the people against whom he was appealing.

I have heard Labour Members talking about the police in relation to such matters. I do not believe that complaints against the police should be investigated by the police, so nor do I believe that complaints against a trade union should be investigated by trade unionists.

What the TUC suggests is that there should be three people on the tribunal and that one of them, the chairman, should be an independent man who has a knowledge of law. As I said on Second Reading, two from three or one from 396 three means that inevitably, unless the two appointed by the TUC because they are trade unionists disagree, the views of the independent chairman will not be relevant in voting terms, as his vote will be relevant only if the other two are split.

Our amendment has been tabled because we are extremely anxious about the individual case. We concede that the cases arising will be few. But even if there is only one, we believe that it is the duty of the House to protect the liberty of that individual. Even if only one person is affected adversely by exclusion from or expulsion from a trade union, we believe that it is a vital job for the House to protect that individual and his liberty and to give him or her the opportunity to appeal in that situation to an independent tribunal appointed by the Secretary of State.

I hope that the Government will feel able to accept our amendment, even at this late stage. I hold out little hope, but with what little hope there is I hope that the Minister will accept the amendment. Neither on this amending Bill nor on the original Act has he made any concessions, or very few, to the views of minorities, or even to the views of substantial majorities. This is an opportunity for him to make a concession which would go a long way to alleviating the fears of many people that the trade union movement is really becoming too powerful. But whether or not it has become too powerful, it is at least necessary to have some sort of braking mechanism within the system to ensure that if the trade union movement were to use its power wrongly, at least the individual would have some right of appeal to an independent statutorily appointed tribunal.

§ The Secretary of State for Employment (Mr. Michael Foot)

The hon. Member for Brentford and Isleworth (Mr. Hayhoe) and the hon. Member for Rochdale (Mr. Smith) have spoken briefly on this subject, but I know that they attach great importance to it. I also attach the greatest importance to it. Therefore, if I reply also briefly that does not mean that I am seeking to minimise the importance of the question in any sense.

It is the fact, however, as the hon. Gentlemen know as well as anyone, that 397 we have discussed this subject on numerous occasions and, therefore, it is not necessary for us all to cover all the ground on each occasion. I say that in order that no one should think that I am trying to treat the subject in any derogatory fashion. That has not been the way in which I have approached the whole question throughout, or the way in which we have approached the discussions that we have had with the TUC about the matter. As I shall underline shortly, I believe that the agreement which has been reached, or the proposal that has been made by the TUC, is a great step forward and one which should be welcomed by the whole House.

I am grateful that the hon. Gentlemen have welcomed the proposal, even if they would like something further. I believe that that, at any rate, is an important advance. Therefore, I hope that after the speeches we have now had, no one will say that the proposal of the TUC is in any sense being dismissed as a proposal which is not of considerable significance.

Let me come to the speech of the hon. Member for Brentford and Isleworth. I could make some controversial remarks about the figures on strikes. The hon. Gentleman showed his marksmanship when he picked the year 1973 rather than 1972. If he had picked 1972, the first year of the Industrial Relations Act, when that Act was having, perhaps, its full immediate impact, he would have discovered figures very different from those he cited, and very different comparisons. He would have had to face the figure of 24 million days lost—I think it was—during that period. The comparison would be quite different.

§ Mr. Hayhoe

Will the right hon. Gentleman give way?

§ Mr. Foot

I do not want to spend much time on this matter. We have other occasions on which to discuss these matters.

But I underline the fact that many of the heavy figures on strike action and days lost owing to strikes during 1974 we certainly attribute, in the main—not entirely, because there are always complicated reasons which may be adduced to explain different figures—either to the operation of the statutory incomes policy or to the hangover of the statutory in- 398 comes policy. For example, great numbers of the lost days in the National Health Service were certainly due to the way in which the statutory policy was still leaving its effects upon our economy.

§ Mr. Hayhoe

There is misunderstanding about this matter. A Written Reply given on Tuesday 5th November by the Minister of State shows that during the period from 1st July 1970 until 31st July 1974 the days lost due to the Industrial Relations Act or proposals for the Act amounted in total to 4,199,000. Therefore, when the Secretary of State talks of 24 million he is not being accurate. In 1972 the number of days lost as a direct result of the Industrial Relations Act was about 400,000. The reason why the days were lost involved other matters concerned with pay and inflation, as was the same last year.

§ Mr. Foot

As I said, it would not assist the House if we spent a long time swapping figures. I am only correcting the hon. Gentleman. There is the number of strikes in 1972 and thereafter directly attributable to protests against the Act, and there is also the number of other days lost due to the industrial climate created by the Act. If hon. Members opposite have not understood yet that the 1971 Act helped to poison the industrial relations of this country, they still have a great deal to learn. But we can return to disputes about figures on other occasions.

I would directly repudiate the hon. Member's accusations about me, especially the suggestion of any breach of faith in the way in which we have approached this question. Some of the quotations that he gave from me contradicted his claim, so it is not necessary for me to contradict it further. The hon. Gentleman was courteous and ill-advised enough to quote from a speech of mine in a section in which I said that we could do it by legislation or by a code of practice or by some other means. It is by some other means that we are seeking to do it, so there is no ground for an accusation of that sort.

I am not complaining on personal grounds, but I have not misled the House in any particular throughout these discussions. I have sought to tell the House as plainly as I can the Government's thinking and what discussions we have 399 had with the TUC. I have said many times that we took into account the industrial experience of the TUC. It would be foolish for us to approach this subject without doing so. I have tried to give a faithful account, as is my duty, about the form and terms in which we were having discussions with the TUC and the outcome of those discussions. So I deny in the plainest terms that I have been guilty of any breach of faith.

Of course there are differences about how we are to approach the problem. In this sense I agree with hon. Members opposite, although I am loth to agree with them on this kind of question in any sense at all. My aim has been to secure the best possible protection for the individual who may fall foul of his trade union or get into difficulties, and to provide some safeguard which works, not one that pretends to establish a tribunal to give people satisfaction. What I have tried to do is achieve a means of protecting the individual which will successfully operate in the interests of the individual.

Because reinstatement is the prize that someone who has fallen into these difficulties would want most, it is much better first to try to settle the issue within the internal machinery of the trade union itself as was recommended by Donovan and is mentioned in the amendment of the hon. Member for Rochdale (Mr. Smith). That is the first way in which the worker can be reinstated in circumstances most advantageous to him.

The second way under the TUC's procedure is that, having exhausted all the machinery of his own union, he should have an appeal, and not, as the hon. Member for Rochdale said, to the same body as has already judged him. The General Council of the TUC which will be setting up this independent tribunal, in consultation with me and with the Chairman of the CAS and will guarantee its independence. They will see that it is not the same body as judged someone in the first place. It will be a body set up by the whole movement, judging what may happen within and between different unions. In many cases, there will be arguments about how it should be done; but the idea that justice will not be seen to be done on that account I do not believe.

400 The Liberal amendment is slightly more appealing than the Conservative one, although there is not much in it—

§ Mr. Hayhoe

Why is it?

§ Mr. Foot

There are some difficulties which the Liberal amendment slightly overcomes, but neither amendment is satisfactory. Both have the common defect of trying to amalgamate the TUC's voluntary system with the compulsory system of legal redress. That would merely injure the possibility of the voluntary system succeeding.

Leaving aside the question of appeal to the High Court on grounds of breach of natural justice, which remains untouched by our proposals, it would alter the way in which the TUC system would operate if it were thought that there was another tribunal to which, after appeal to the TUC tribunal, a further appeal could be made. Therefore, the best way of dealing with the problems involved in the reinstatement of people who have fallen foul of their union is to give the TUC tribunal a fair chance of operating.

I do not set any exact period upon this, but within a measurable time a few cases will have been heard. The cases themselves are not numerous, as we all agree, although that does not diminish their significance. After a number of cases have been heard and we have seen how the matter works in practice, people will understand that this was a sensible system and that it would have injured the possibility of success if we had tried to couple it with legal methods.

§ Mr. Christopher Tugendhat (City of London and Westminster, South)

Does the right hon. Gentleman regard the trade union movement as unique in the sense that it should be self-policing, or should the principles that he has just enunciated apply with equal force, let us say, in the City in take-over matters and questions of shareholders' rights or when people are complaining against the police? Is it a universal principle, or are the trade unions special, as is so often the case?

§ Mr. Foot

It is not a question of the unions being special. There are circumstances in which outside bodies should have powers to intervene, but there are also many other bodies which have a perfect right to conduct their own affairs 401 as long as they do so in the open. Under this proposed procedure, individual unions have agreed that if there is criticism of the way in which they have treated individual members, that allegation will be judged not by the individual's union but by a body of experts established by the whole movement. That seems a perfectly creditable way of going about it. I am concerned about the protection of the individual. I believe that it will be a better way of protecting individuals.

The hon. Gentleman said that he was seeking to make only the slightest possible difficulty for the Government in the moderate amendment which he has put forward. I acknowledge that the Opposition have made a concession to the Government in that they have incorporated the proposal for the TUC tribunal in the amendment. That is correct, but, as I have already argued, I believe it is a hybrid proposal when it is allied with the legal sanction.

My final objection to the amendment is of a more formidable nature than the objections which I have already put forward on the general grounds. That is particularly so in view of what the hon Gentleman said about the desire to make the slightest possible interference with our proposals and to make his proposal as appealing to us as possible. There is the difficulty that the Opposition's proposal retains subsection (5) of Section 5 of the Trade Union and Labour Relations Act 1974. That is the Act which this measure will amend. The subsection aims to preserve common law rights of action. I am not arguing whether it is necessary, desirable or superfluous to have that section to protect common law rights when there have been cases of a breach of natural justice. As we have argued with overwhelming success on previous occasions, it is not necessary to have such a section for that purpose. There is no interference with that concept in our Bill, nor was there ever any interference with common law rights in our previous Bill. Appeal to the High Court on the grounds that were available before was protected in the Act and there was no need for the clause to be inserted. In that sense it is superfluous.

I have the highest authority in the land for saying that. The Lord Chancellor has repeated that view to me most strongly, as he has in another place. I 402 do not think that we shall have any quarrel on that aspect of the matter. What the hon. Gentleman has not appreciated or what he has not fully understood—this is particularly so in view of his claim that he is seeking to make that his amendment as appealing to us as possible—is that Section 5 (5), which he seeks to retain, involves many other parts of the Act. If he has not understood that, it makes the matter all the more sinister. His amendment might undermine the long-standing legal immunities given by Section 2(5) of the Trade Union and Labour Relations Act to trade union members in respect of the purposes of their unions in restraint of trade and the legality and enforceability of trade union rules in restraint of trade.

The assertion of common law rights in a comprehensive form as set out in the amendment subverts—I am told that that is the proper legal way in which to put it—the provisions for protecting trade unions in other matters. That is very serious. It is all the more serious when the hon. Gentleman says that he has done it by accident. Even by accident the Conservative Opposition try to interfere with the rights of trade unions. When they do it on purpose we get an Act such as the 1971 Act. When they do it by accident we get a clause such as the one before us. On that ground, too, I ask the House to reject the amendment.

Section 5(5) of the 1974 Act undermines essential immunities for trade unions which, except for the 1971 Act, have existed unchallenged since 1871. Therefore, I hope on that ground at least that we can come to a speedy agreement to reject the amendment. It is a peculiar affair that the Opposition at this late stage should have tried to rush an amendment such as this through the House. That is surprising when my hon. Friend the Minister of State gave due warning of this matter in Committee. They have put forward on Report this amendment, which carries the threat that I have outlined—"threat" is not too strong a word in the context of normal trade union rights—not only in the face of common sense but in the face of the warnings that my hon. Friend gave in Committee.

§ Mr. Hayhoe

The right hon. Gentleman is making a good deal of subsection (5). It is interesting to recall that when 403 he was dealing with it on 30th July 1974, instead of producing the arguments that he now puts forward all he could say was: I cannot believe that subsection (5) is necessary. It is inconceivable that the courts would construe the existence of the clause as cutting down any common law rights."—[Official Report, 30th July 1974; Vol. 878, c. 504.] Nothing was said then about subversion. The right hon. Gentleman is now making the sinister accusation that my hon. Friends and I are bringing something out of the bag at the last moment. I do not believe that there is any justification for what he has been saying.

§ Mr. Foot

There is no question of bringing it out of the bag at the last moment. Perhaps the hon. Gentleman will do me and my hon. Friend the Minister of State the courtesy of looking up the discussion that took place in Committee. He will there see—

§ Mr. Hayhoe

Which Bill?

§ Mr. Foot

The Bill that is now before us, the Bill which we are discussing by an extraordinary coincidence. In the discussion in Committee the hon. Gentleman will discover the warning that was given by my hon. Friend. Unfortunately, that warning was neglected. That is a further reason for rejecting the amendment.

My principal reason for asking the House to reject the amendment and to accept the Government's proposals is, however, that I believe the TUC proposals offer the best way of protecting the rights of individuals who may be in difficulties for the reasons that have been described. If the proposed tribunal to be set up by the trade unions works successfully, I believe that the few individuals who are involved in such cases will be better protected than they would be by any other means. But if we found—this has been said before—that after a period my prophecy proved to be incorrect, the Government would come to the House and propose further measures.

I have said from the beginning that in a closed shop situation there must be protection for individuals who might be in the sort of difficulties that have been described. We believe that we have provided the best kind of protection. We ask 404 the House and the country to give it a fair trial. We ask them to judge who was right. If we are proved wrong we will be prepared to consider the matter again. I believe that it is in the interests of the country, in the interests of good industrial relations and in the interests of the individuals concerned that we should give this proposition a fair trial.

§ Sir David Renton (Huntingdonshire)

It is clear from the right hon. Gentleman's speech that on aims there is not much which divides the two sides of the House. There are three issues which arise, and on each of those issues the aims are almost identical. I ask the right hon. Gentleman to bear in mind the possible advantage of achieving the aims which he has expressed by a method that claims all-party agreement. At any rate, that would be the position as far as the Labour. Conservative and Liberal Parties are concerned. Alternatively, the right hon. Gentleman's aims can be achieved by a process which divides the House. The right hon. Gentleman and the Prime Minister do not hesitate to use the word "divisive" when they think that it is appropriate. On this occasion, when we can so easily agree on the method, it is a pity that the right hon. Gentleman does not seize upon the opportunity of obtaining all-party agreement.

I shall briefly invite the House to consider three relatively minor differences with which we are concerned. First, there is the declaration of rights of trade unions. The right hon. Gentleman and my right hon. and hon. Friends are agreed that members of trade unions should have certain rights in relation to their own unions, including the right not to be unreasonably expelled or excluded from their unions. The right hon. Gentleman, by his wholesale repeal of Section 5 of the 1974 Act, including subsections (1) and (2), is going to remove from the area of expression by Parliament of those rights this particular declaration of rights. He is going to leave it to the rules of trade unions to declare those rights. That is not progress. That is going back. That is regrettable, however much faith he or the rest of us may have in the undertakings which have been given by the TUC in his discussions with that body. It was spelt out in the statute, a statute which was passed by the right hon. Gentleman's Government in the last Parliament, 405 and it is a pity that we should now have this repeal, especially as he agrees that these rights should exist.

5.0 p.m.

There is the second question about the way in which those rights should be—if he will forgive the word—enforced. It is, after all, a question of enforcing the rights. We agree with him that in the first place a member of a trade union who looks like being unreasonably expelled should take the matter up with the union. That would be the normal process, and we agree that that should happen. It is only when he does not get satisfaction or feels that he is not being justly treated that there arises the question of the method of appeal which should be made available to him.

Here again there is no great difference between us. The right hon. Gentleman has said that the Trades Union Congress agreed upon certain arrangements for considering these appeals within the trade union movement. My hon. Friends, in the amendment which they have submitted and which the Secretary of State himself has described as moderate—[Interruption.]

I should be grateful if I could have the attention of the right hon. Gentleman. The right hon. Gentleman's attention seems to be elsewhere. On a point of order, Mr. Deputy Speaker, I should be very grateful if I could have the attention of the right hon. Gentleman. We listened very carefully to him, and I am endeavouring now to reply to some of the points which he made.

We say: very well, the right hon. Gentleman has had these discussions with the TUC, which agrees that a procedure should be established within the trade union movement. Why not spell this out in the way proposed in the amendment, in order that everybody can know that it has the backing of Parliament? That gives it a sanction—a sanctity, if you like—which I should have thought would be welcome, but the right hon. Gentleman says that he does not want that. At any rate, the gulf between us is very narrow.

The only other point on the question of appeal is whether the existing machinery for going before an industrial tribunal, which is, after all a good deal more independent, should be made avail- 406 able to a trade union member or somebody who is aggrieved by being excluded from a trade union. What is the objection to this well-established machinery which has helped a great many members of trade unions and those wanting to join trade unions to have doubts and differences settled? Why bring this procedure to an end? There seems to be no valid reason for doing so.

I come to the third point, which arises on the fact that under the amendment Section 5(5) of the 1974 Act—and I notice that it is a subsection which preserves common law rights—is to be left as it stands. I am not sure how strongly my hon. Friends feel about this, but I think I am right in saying that they do not feel strongly about it if it gives rise to some technical or drafting difficulty. If the right hon. Gentleman could indicate that there is no difference between us in principle and that, therefore, a simple drafting amendment or a consequential amendment or two in another place would put the matter right, why does he not immediately say so and have the generosity and good will to try to achieve all-party agreement on this very important matter, on which it is far better that he should try to carry the House instead of obstinately digging his feet in on matters on which there is no great difference between us? I implore the right hon. Gentleman to think again.

This is an important matter which affects millions of people. It must be of far greater satisfaction to them if these trade union rights are spelt out in a way which receives all-party agreement, instead of merely having the backing of the Government, who have the support of only 40 per cent. of the electorate.

§ Mr. Leon Brittan (Cleveland and Whitby)

I support these amendments. The Secretary of State has assured the House on this and other occasions in his most earnest manner that the procedure to be adopted by the TUC was a genuine attempt to provide an independent body to which appeal could be made if members of trade unions believed themselves to be unfairly excluded or expelled from trade unions. It is in the spirit of that statement that we on this side of the House speak today.

Many of us have decided reservations about whether such an appeal tribunal 407 appointed by the TUC is the most appropriate way of dealing with this matter. Many of us feel that there was no objection to having the matter dealt with by the industrial tribunals, which could comprise representatives from both sides of industry as well as an independent legally qualified chairman. However, for the purpose of this amendment we are prepared to accept that the solution favoured by the Secretary of State should be adopted, and all that we are seeking to do in this amendment is to render that solution slightly more acceptable to those who have genuine worries about the procedure and method of operation of the independent tribunal to be set up by the TUC. That is all we are doing.

The arguments which are put forward against this solution by the Secretary of State are twofold. The second one relates to the implications of Section 5(5) of the 1974 Act. I suggest that the point made in relation to that by my right hon. and learned Friend the Member for Huntingdonshire (Sir D. Renton) is a complete answer to it. This is not something on which we on this side of the House seek to insist, though I have considerable doubts whether that section has the implication and the effect suggested by the Secretary of State.

It is noticeable that in the Committee debates to which the Secretary of State referred, the Minister of State put the matter in a very tentative way. He said that Section 5(5) "may" undermine unity. He said that some who are expelled or excluded "may" find that they do not have protection in respect of their common law rights or restraint of trade. I doubt whether the consequences which are feared really flow from that section. It they do, the answer is the simple one put forward by my right hon. and learned Friend the Member for Huntingdonshire. It will not do for the Secretary of State in his most sinister manner to hold out in terrorem the consequences of that provision as if it were a dire threat to trade union rights. If that is the best argument that he can address against these amendments, they ought to be accepted without any hesitation whatsoever.

Let us turn to the first argument advanced by the Secretary of State against 408 these amendments. It was, as I understood, that in some sense the system of an independent body set up by trade unions to consider appeals would be undermined if it were made a hybrid body by some kind of statutory recognition or intervention. That is a very abstract and theoretical proposition, and it requires closer analysis in terms of the amendment. I could understand that the Secretary of State might feel that way if what was proposed was that the tribunal appointed by the TUC was constantly to be interfered with by the ordinary courts, that one could constantly go from that tribunal to the High Court or the Industrial Tribunal on interlocutory or intermediate points, that there would be constant interference and supervision. In that case I could understand the Secretary of State feeling that the TUC-appointed body was becoming so enmeshed by the ordinary legal procedure that for those members of the trade union movement who did not regard that procedure as appropriate for the resolution of a dispute it would become an unacceptable process.

What is proposed, however, does not begin to go as far as that. It relates essentially to two matters. I thought that I heard the Secretary of State talk about an appeal from the trade union-appointed body. There is no provision for such an appeal in the amendment. Two provisions are made. First, the procedure of such a tribunal shall be in accordance with rules produced by the TUC and approved by the Council on Tribunals. The Council on Tribunals is not a court but an administrative body regulating the procedure of a wide variety of tribunals. It does not come within the judicial structure. Once those rules were approved the Council on Tribunals would in no way be involved with the TUC-appointed body. Its task would be finished. There would, therefore, be no hybrid body, simply a process at the beginning of the operation of the TUC-appointed body to ensure, as I am sure would be the wish of the trade union movement, that the rules were at least as fair as those of countless other bodies supervised by the Council on Tribunals. That does not make the body a hybrid, nor does it involve the taint of interference or admixture with the courts, if such a taint were thought to exist in the event that such a situation were to happen.

409 The second matter relates not to any question of an appeal from the decision of the TUC body but to the situation in which the judgment of that body is not enforced. The Secretary of State thinks, and he may well be right, that the TUC-appointed body will have such authority and will command such respect that its conclusions will automatically be enforced by the trade unions concerned. I hope he is right. If he is, the other aspect of the amendment never even begins to come into play. In such a case a trade union enforces a decision of an independent body, and that is the end of the matter. There will be no admixture, no further intervention.

This provision relates only to the situation which the Secretary of State believes will never arise, namely, that the decision of the tribunal is not implemented by the trade union concerned. Only in that case, or in the purely hypothetical case where the TUC-appointed tribunal has not been appointed, does it become possible for the individual concerned to apply to the High Court for relief and, in effect, for enforcement of the decision not of a judicial body but of the body that has been appointed by the TUC.

The amendment therefore relates to a situation which the right hon. Gentleman says will never happen, so he surely has nothing to fear from that aspect of the amendment. To suggest that the amendments in any way taint the operation of this independent body is an unsupportable proposition which does not stand up to close scrutiny. The amendments do not taint the new body but support it and will give greater confidence to those who have reservations about it but wish it well if only it can be given certain procedural backing.

§ Mr. Hayhoe

It might be for the convenience of the House if this debate ends fairly soon, but I underline the Secretary of State's view that the fact that speeches have been brief is in no way an indication that the subject is any the less important. There is great public interest in the amendments we are to discuss next, and it might be as well to begin the debate on them fairly soon.

I wish to reply to two major points raised by the Secretary of State. I want, too, to underline what was said by my 410 right hon. and learned Friend the Member for Huntingdonshire (Sir D. Renton) and my hon. Friend the Member for Cleveland and Whitby (Mr. Brittan). The question about the hybrid nature of the amendment was answered by the Secretary of State on Second Reading. He was then justifying the position of the TUC review body by saying that if its decision was not enforced it would be possible in some cases at least for the aggrieved party to seek a remedy in the High Court. He was quite happy then to have the courts involved and he seemed to be suggesting that the recommendation by the review body would be an important factor taken into account by the courts. The difference between us, therefore, is very small in this respect.

The right hon. Gentleman made what appeared to be a more substantial point about subsection (5). Characteristically, perhaps, he was less than fair in his suggestion that the subsection subverted the very basis of trade union legal authority, and in basing that suggestion on what was said by the Minister of State in Committee, which, as my hon. Friend the Member for Cleveland and Whitby pointed out, was a very tentative suggestion that the proposal might have undesirable side effects. The Minister of State, with his characteristic fairness, in such sharp contrast to the attitude of the Secretary of State, said that he did not think it was the intention of those who proposed Section 5 to seek that side effect. Of course, the Minister of State was right. I think the point was covered by what I said in moving the amendment, that if there were drafting difficulties—and the Minister of State accepted that that might be the case—these were matters which could be adjusted. That is all there is between us.

To talk of subversion and sinister motives is characteristic of the Secretary of State. There he is getting into the matters that he knows best. He is lost when he seeks to deal with the reality of the amendments, because it is clear that, in contrasting the Liberal amendment and my amendment, he does not understand them. He does not understand the difference between the two drafts, because the only difference between them is something for which he does not wish. My amendment deals with the review body to be established by the 411 TUC, whereas the hon. Member for Rochdale (Mr. Smith) feels that the provisions should be tougher and that power should rest with the Secretary of State. So be it.

The Secretary of State for Employment brings to these matters that characteristic technique of smear and half-truth which we are getting to know better from him, and it still serves the causes which he tries to defend in the House. I therefore hope that unless the Secretary of State can respond in a more constructive and positive manner we shall carry our views to a Division.

§ Mr. Foot

With the permission of the House I speak again in reply to hon. Gentlemen. I shall be brief, for the reasons which hon. Gentlemen have also underlined. That does not mean that we attach anything but the greatest importance to the subject.

I leave aside the suggestions made about myself by the hon. Member for Brentford and Isleworth (Mr. Hayhoe). The evening is yet young, and we may be able to deal with all things later. I am glad to see that the hon. Gentleman has dropped the charge of breach of faith which he made against me. No doubt in a subsequent speech he will drop the reference to smears.

§ Mr. Hayhoe

I reiterate the charge.

§ Mr. Foot

The hon. Gentleman has not produced any evidence to support what he said. He has not contradicted his charge. However, he was kind enough—was it kindness or innocence?—to quote my repudiation of his charges. That is satisfactory from my point of view.

The right hon. and learned Member for Huntingdonshire (Sir D. Renton) made the constructive suggestion that an important part of his hon. Friend's amendment should be left out to improve it. I agree that that would have been the result. However it is harsh on me to be accused of engaging in a sinister practice in criticising an essential part of the Opposition amendment. That is a novelty. I have been a Member of the House of Commons for a long time. I do not think that accusations should be made against Ministers who apply their minds to an amendment. I should not have thought that that would be regarded 412 as a deep offence by the Opposition. I was entitled to do that and to point out the ramifications and the possible effects of subsection (5). It should not be regarded as a parliamentary offence it I criticise an essential part of an amendment. It would have been a better amendment if the passage had been left out. I should not have been able to use that argument against it as appositely as I was able to do.

I wish to traverse again the second argument. I believe that the proposals made by the hon. Gentleman and the Liberal Party, in different ways, will impair the possibility—I say that because I like to use moderate language—or the likelihood of the success of the TUC proposal. Although I am interested in whatever charges hon. Gentlemen make against me, I am also interested in protecting the individuals concerned.

I believe that my way and the proposed TUC way of doing this will protect more individuals against injustice than what is proposed by the Opposition. If it does not, if my judgment is wrong, I think we shall have to look at the matter afresh for the reasons I have given.

§ Sir David Renton

To the extent that my hon. Friend's amendment gives parliamentary statutory endorsement to what the right hon. Gentleman has agreed with the TUC, what will be the objection?

§ Mr. Foot

The objection is that it carries the matter further in many respects. There is no mystery about the virtue of the method of the TUC, which is that it keeps the law out of the matter. That is what recommends the proposal to the TUC.

Hon. Gentlemen must accustom themselves to the fact that the experience of the 1971 Act has influenced the attitude of the TUC to all these questions.

This still leaves the matter of the appeal to the High Court. The TUC did not contest that before, during or after the passing of the 1971 Act. Nor has there been interference with that principle in the measures proposed in either the 1974 Act or the present Bill. The TUC does not want to interfere with that. However, that does not alter the fact that when the TUC set up the tribunal it believed—and I agreed—that it was right to try it. It is better to have 413 it in a form which is not subject to the statutory control involved in the Opposition amendments.

Despite the shortness of this debate, there is the advantage that the House has given a welcome to the TUC proposals. I am grateful that that should be so. Criticisms were made in some of the earlier debates, although the TUC's proposal was not decided. However, I am glad that the former attitude has departed. I am glad to hear that the House of Commons will now assist in going forward with this proposition and will agree, I trust, with our suggestions, so that the tribunal to be established by the TUC will have a fair start. The House of Commons will wish it Godspeed in dealing with these problems. I believe that it will succeed. However, if by any chance it should fail we shall have to think again. I think this is the best course to take in the interests of the freedom of the individual which the Government are protecting.

§ Mr. James Prior (Lowestoft)

The last sentence of the Secretary of State's speech does not ring true for many of my hon. and right hon. Friends. We have travelled a long way to try to understand and meet the point of view of the TUC on this matter. We accept, albeit reluctantly and perhaps sadly, that the 1971 Act has damaged the belief of the TUC in the operation of the law. I do not think that that should prevent this House from putting into legislative form a body which the TUC has agreed to set up and which the Secretary of State has blessed, which is what our amendment will do.