§ Further considered on Report, on Clause 12.
§ 4.43 p.m.
§ Lord Jenkins of Putney moved Amendment No. 39:
Page 16, line 21, at end insert—
("(5) A contract between two parties in which one party is required to be a member of an employers' association and the other party is required to be a member of a trade union is not voided or invalidated by this section.").
§ The noble Lord said: My Lords, I have made more than one attempt to get the Government off the hook in this matter and this amendment is a further attempt to that end. If I am right in thinking that the whole of the clause is not intended to intervene in contracts between two parties but essentially envisages a three-party situation, then the amendment, which is for the purpose of greater certainty and clarity, should be acceptable to the Government. It simply says that where you have a straightforward position between an employer and employee, the existence of a requirement to be a member of an employers' association or trade union does not invalidate the contract.
§ The amendment should commend itself to the Government because, as I understand it, the whole of the clause is to intervene in what I described as a three-party situation: for example, a contract between a local authority and a contractor, whereby the authority says to the contractor, "You shall", or "You shall not", as the case may be, "employ only members of a certain trade union", whereby the local authority concerned makes it, in other words, a condition of that contract that the other party shall employ—or not employ, as the case may be—certain people with or without a certain qualification.
§ That would not be a reasonable step to take, but that, I am fairly sure, is what the Government intend to do. 549 One may dislike it and vote against it, or one can say, from the Government's point of view, that they are right to produce a clause on such a basis—if that is their objective. But if I am right in thinking that, virtually accidentally, in the course of so doing they have unintentionally also invalidated a straight contract between two parties and have made such a contract voidable under the clause, then I hope the Government will agree that the amendment makes the situation clearer and should be accepted.
§ Lord Mackay of Clashfern
My Lords, the provisions of Clause 12 are concerned with any term or condition of a contract for the supply of goods or services, and such a term or condition is made void if it purports to do the things mentioned in paragraphs (a) and (b). So it is a contract in which two parties are involved for the supply of goods or services, and I do not think the noble Lord, Lord Jenkins, is correct in saying that it is intended to apply only to a tripartite situation. The view of the Government is that the amendment is unnecessary for the purpose the noble Lord has in mind. The purpose of Clause 12 is to void requirements of the kind I have mentioned and it makes it unlawful to refuse to include a person on a tender list or award him a contract on the grounds that he does not recognise a trade union.
The second of these is, as far as we can see, entirely irrelevant to contracts between theatre managers and individual actors. The first may make void any requirement in an Equity contract that the theatre manager recognises Equity for the purposes of negotiations, assuming that it is a contract for the supply of goods or services. But in our view the amendment is unnecessary for the purpose the noble Lord has in mind and would introduce confusion into the provisions. I therefore hope your Lordships will not accept it.
§ Lord Wedderburn of Charlton
My Lords, I invite the Minister to think again on this subject and perhaps come back to it at Third Reading. We take no particular pleasure at this stage of the Bill—when one is not able or indeed willing to oppose its main thrust—in asking whether the Government are not impaled on the horns of a dilemma of their own making by introducing a certain amendment late in Committee. All Governments do that from time to time, but I cannot refrain from noting that I wondered where I had seen it when, in July, in the middle of Committee, it was brought to us, and then I found my Financial Times cutting of 28th May which more or less printed the clause as what the organisation Aims of Industry was urging on the Secretary of State. That cutting of 28th May sets it out for the noble and learned Lord, just as it does for me.
The Aims of Industry clause was introduced in the middle of July and the Government put forward the argument that they so disliked pressure—be it commercial under this clause or industrial under Clause 13, which is keyed in with it, like Clause 11—that they would not have people use either sort of pressure to require others to negotiate or even consult with trade unions. Then they had to draw up a liability along that boundary and it was perhaps inevitable that they should run along the boundary between contracts for the supply of goods and services, which were within the 550 area of the Bill, and contracts of service—or of employment, as they are usually called—which were not.
I come now to the problem with which the Government are faced and from which they will not escape, and which it seems to me is the root point of my noble friend's argument to both this amendment and some other amendments that are germane to the problem. This is why I ask the Government to look at it again, because it comes out in various parts of the Bill. Their problem is that, apparently without meaning to, they get into the area of causing to be invalid various types of clause and various types of pressure where the workers are in law those who have contracts for services—sometimes called self-employed or independent contractors—as opposed to the normal workers under a contract of employment. To the man in the street they are for the most part the same species, but the noble and learned Lord, and perhaps myself, as lawyers know that they are fundamentally different.
Therefore, if one drafts clauses where the unlawfulness and the impropriety attach to a situation defined by reference to a contract for services, then a large number of workers—a minority, but quite a large number—will come in, even if one does not intend it. There are of course the musicians, and their contractual arrangements, and all kinds of pressures and requirements, are dealt with in the contracts for services of musicians. There are also, of course, actors. I have not previously intervened to speak about actors because I declare an interest as the independent chairman of the London Theatre Council and the Provincial Theatre Council. I say merely that it is extremely disturbing to see the way in which the well-observed and normal operations of the theatre councils, of management on the one side of the table, and British Actors' Equity on the other, would have to be very carefully considered in relation to the clause, and would not be easy to operate. I think that that would be a fairly common view around the table, but I must not express it as anything other than my own view.
However, actors and musicians are not alone. Recently I had reason to be given evidence that in the petrochemical industry there is a very large amount of self-employment. That is true among draftsmen, and in many other areas of industry, where self-employment and contracts for services come up. English law being what it is—it might be better North of the Border—one cannot ever be quite sure. Consider, for example, the lorry driver who in 1968 was taken on and told, "You are the owner of the concrete lorry; go away and keep it up". Then he was paid sums that appeared to him to be wages, but he turned out to be an independent contractor. There are quite a few workers around who are in a rather awkward and difficult spot, and there have been many cases in the courts on this issue in recent years.
Surely the Government can find a way of avoiding what they appear to want to avoid, though the noble and learned Lord did not wholly convince me on this point. If the Government want to avoid the clause upsetting the agreed provisions in industry—where much self-employment arises and is recognised and dealt with by orderly arrangements, such as among musicians and actors—why do they not take away the clause over the Recess? They could also take away the amendments of the kind that my noble friend is 551 moving, and say that they will try to find a way whereby contracts under which the workers' contract with employers will not be caught by the clause. I have in mind contracts under which workers as defined in the 1974 Act—it has a much longer history—contract under a contract of service, or to give personal service, other than a service for a professional client. I am quoting from Section 30 of the 1974 Act, which has a number of other rather minor consequential definitions of the work "worker".
Why will the Government not say, "We will take away the clause and look at it in relation to workers, and keep out employment of workers. All right, we will keep out employment of workers, and then we will do our worst on the rest"? Would not that be a reasonable way for the noble and learned Lord to advise his friends?
§ Lord Campbell of Alloway
My Lords, is it in order, on a point of clarification, to ask the help of the noble Lord, Lord Wedderburn of Charlton, as to whether, in a sense, he is taking the same point as arises on Amendments Nos. 56A and 56B in part? If that is so, is it fundamental to his thinking that we must seek to put aside the distinction between a contract for services—the self-employed—and a contract of service as employee? If that be his fundamental thinking, where does it take us in practice? Does it take us to the point—again I am seeking help—of derogations in the public interest of some general kind, rather than relying on the technical distinction? I do not know whether I have made myself plain.
§ Lord Howie of Troon
My Lords, I do not like the amendment of my noble friend Lord Jenkins one bit, because really what it is proposing is that one should be allowed to coerce people with impunity, and I do not like coercion. I do not like coercing people into unions, and I do not like coercing people out of unions. I do not like coercion at all, and I do not think that we should have any truck with it whatsoever. However—
§ Lord Jenkins of Putney
My Lords, will my noble friend give way? I wonder whether he is speaking to Amendment No. 39, or possibly to Amendment No. 40. We are on Amendment No. 39 at the moment.
§ Lord Howie of Troon
My Lords, my noble friend has found my Achilles heel. I was thinking of Amendment No. 40, and I shall wait until it arises. In the meantime, I thank my noble friend.
§ Lord Wedderburn of Charlton
My Lords, would it be your Lordships' wish that I say a few words in reply to the noble Lord, Lord Campbell of Alloway? First, it is true that what I was saying is relevant to Amendment No. 56A, and possibly Amendment No. 56B. I was trying to be helpful, to get the noble and learned Lord to give us guidance which might make it unnecessary to discuss those other amendments, because the same issue is below the surface of the present amendment as is apparent on the surface of the other amendments. I was not in any way trying to do anything revolutionary. That is not appropriate on 552 Report; I do that only in Committee. It is not revolutionary to suggest that a provision on matters such as these, which relate to collective labour relations, should be drawn by reference to the well-known concept of "workman", as it was in the Act of 1906, or "worker", as it was in the Act of 1971 and the Act of 1974.
My suggestion to the noble and learned Lord was that the Government could achieve their purpose in having what they wanted, but could avoid quite unnecessary disruption—probable disruption at this stage; one cannot quite tell—of well-known and good industrial relations if they adopted in the clauses the guideline of the worker instead of the employee.
§ Lord Mackay of Clashfern
My Lords, with the leave of your Lordships, perhaps I should add a few words. The suggestion that the noble Lord, Lord Wedderburn, had put forward is one that was considered. The noble Lord, Lord Jenkins of Putney, between Committee and Report, kindly provided us, and myself in particular, with the documentation to which he referred at the Committee stage. So the situation has been carefully considered. The reason that the noble Lord, Lord Wedderburn, has advanced—namely, that many people would be affected by the change—is precisely why we think that those many people require protection which the clause affords, and it is also why we are unwilling to change in the manner that he suggests.
§ Lord Jenkins of Putney
My Lords, I find that answer profoundly disappointing, because the truth of the matter is, as I think the noble and learned Lord will agree, that lawyers differ in this rather complicated area. There are those who take the view that a contract of employment is of necessity a contract of service. There are others who take the view that a contract of employment can at the same time be a contract for the provision of services and that, for example, a variety artist making a series of engagements with a number of different employers, in fact to each of the employers, sells his services; therefore, he is not actually in the employ of any one of the employers. Yet the relationship between the two of them, inasmuch as the employer has the power to direct, is in fact a relationship of employer and employee.
The Inland Revenue recognises that a person in that situation is providing his services and is not for the purpose in question in a service relationship, in the relationship of contract of service to his employer. I do not think that anything that the noble and learned Lord the Lord Advocate has said has persuaded me, or has persuaded us on this side of the House, about whether he is taking the Government off the hook. We are providing opportunities for him to do so. I think the objection that he would make—I think he made it in the letter he was kind enough to send me—is that a consequence of seeking to get off this particular hook would be to land the Government in the position where they would be forced to allow a number of other things to occur which they did not want to occur; in other words, they would be in the position of having to invalidate what they were seeking to do. I do not believe that to be the case, because it seems to me, quite essentially, that this provision is for clarification. 553 What it seeks to do is precisely to enable the Government to achieve their general objectives without including this group.
If the Government persist in this, then my noble friend Lord Wedderburn has said, very moderately, that the consequences so far as the theatre councils are concerned might be serious. I venture to suggest that the consequence throughout the whole of the entertainment industry really will be quite disastrous, because every contract will be placed in doubt. Therefore, unless the noble Lord is prepared to accept this amendment, I think the consequence of this Bill will be other than that which the Government really intend, for I believe it will achieve a number of things which I do not think they have contemplated. I think the Government should accept this amendment even if they think it unnecessary, because it has the effect of making certain that which is at present uncertain; and I would have thought that this was a good legislative thing to do.
I hope the Government are going to think again on this. My noble friend has asked the Government to look at it again between now and Third Reading. We shall have another opportunity to consider this question again later, even at this stage of the Bill, and I therefore think it would perhaps be appropriate to give the noble Lord more time to consider the position by not at this stage pressing this amendment to a Division. That will allow the Government to think about it and to consider whether, later on, they might not be able to meet us on the point.
§ Amendment, by leave, withdrawn.
§ Clause 13 [Pressure to impose union membership requirements]:
§ Lord Jenkins of Putney had given notice of his intention to move Amendment No. 40:
Page 17, line 23, at end insert—
("(5) Pressure to fulfil contractual obligations by one person or organisation upon any other person or organisation is not actionable under this section.
(6) Pressure upon any person or organisation upon any other person or organisation to join or remain a member of a trade union or employers' association is not actionable under this section where the persons or organisations are parties to a contract which requires such membership as a condition of the contract.
(7) A refusal to work with or for a person or organisation who declines to enter into a contractual obligation to join or to remain a member of an employers' association or trade union is not actionable under this section.
(8) A refusal to join or to remain a member of a trade union or employers' association where such an obligation is required under a contract between two parties is a fundamental breach of contract rendering the contract void.").
§ The noble Lord said: This question really runs with the other one, I think; and though I do not wish to deny my noble friend the opportunity to argue with me on this point, I think it might be appropriate if, with your Lordships' agreement, in order to allow the Government time to think over the whole question, I were not to move this amendment.
§ [Amendment No. 40 not moved].
§ 5.3 p.m.
("Provision for requisitioning of pre-strike ballots. Pre-strike ballots
— (1) It shall be an obligation on all independent trade unions to provide in their rule books that 1,000 members or 10 per cent. of their membership (whichever is the less) may require a ballot of the whole membership on a decision reached by the executive of that union to call a strike.
(2) The rules for the conduct for such a ballot shall be approved by the certification officer, and the trade union executive or any member of the trade union concerned who alleges there has been a breach of any such rule may complain to the certification officer, and the certification officer, after giving the complainant and any representative of the union an opportunity to be heard, may, if he considers that such a breach has been committed, make such order for remedying the breach as he thinks just under the circumstances.
(3) The certification officer shall defray the expenses of any ballot required under subsection (1) above in accordance with section 1 of the 1980 Act.").
§ The noble Lord said: My Lords, this new clause is self-explanatory. Its sole object is to permit everyone who is engaged in an industrial dispute, a strike, the right to decide whether he or she is in favour of that strike. In fact, no one, whether worker, employer or the general public, likes or enjoys strikes. In the case of the worker, if the dispute is about pay and wages and goes on for only a short time, he may gain some monetary advantage. If it goes on for week after week, he will lose more in actual pay and wages than he will gain from a small increase in pay. If it is about a principle, then of course he will lose wages in paying for that principle—and he may wish to do so.
§ As for the employer, he does not enjoy the strike, either, because it means to him the loss of production, very often the loss of customers, and the loss of profit if he is a company lucky enough to be making any. The people outside both worker and employer—the general public—have nothing at all to enjoy in a strike, especially if it is a strike involving a public service, whether it be the railways, the airways or shipping, where the general public are always at the receiving end.
§ I will at this point make it clear that we on these Benches do not in any way oppose the right to strike, which is accepted, as is the right of an employer to hire and fire—within the terms of our legislation, of course. That right must remain. But what we want to assure ourselves of—and we think this amendment does it—is that it is the people who are involved in the strike who have the right to decide whether or not they should strike. We know what happens very often: an executive, after negotiation (sometimes even before negotiations start), decides that industrial action, a strike, is the only way out. We know only too well that that sort of threat is made on arbitration and on negotiation, sometimes well before the strike in fact takes place. I must say here that some very large unions have an excellent record in what I call trade union democracy, in that they ballot before a strike, they ballot for the election of their officers and they ballot for the election of their executive committees; but they are in a minority. We are concerned about bringing everyone else into line with them.
§ What this amendment seeks to do is to devise a mechanism whereby a reasonable proportion of the membership of the union may request a secret ballot, a postal ballot, before proceeding to the strike. There 555 is often notification that a strike will take place with effect from Monday a fortnight ahead, or something of that sort, if negotiations fail; so there is usually time for a secret ballot. The amendment as drafted suggests that 1,000 members of a union or 10 per cent. of the membership, whichever is the smaller of the two, should have the right to request their executive to proceed to a secret postal ballot; and the amendment requires that the provision should be included in the trade union rule book, with the safeguard of approval by the certification officer, whose functions, of course, are in the rule books, anyway. The cost of this whole secret postal ballot could be met under the terms of the 1980 Act, enacted by this present Government. Those terms have never been used, so far as I am aware, but they are there. Thereby the cost of the ballot could be met.
§ We know that in a strike situation very many loyal trade unionists oppose the strike itself, and, given the opportunity to say so secretly (by which I mean in the privacy of their own homes, with a ballot paper in front of them), they will be enabled to indicate what they really feel about the strike in which they are asked to involve themselves. We do not think—and I made this point before, on Second Reading—that a show of hands at a factory gate meeting is in any way a guarantee that the views of all the trade unionists who will be involved are known. One hesitates to use the word "intimidation", but we all know of its existence.
§ There are millions of people in this country who are loyal trade unionists who would favour pre-strike ballots of this type; and we cannot help but feel that the view on a particular strike proposal may not be different if each trade union member was given an opportunity, in the privacy of his own home, to fill in a ballot paper. What I mean by that is that the ballot may produce exactly the same result as a show of hands. So be it; the member has had the right to declare whether or not he wants to have a strike and he has had the right to declare that secretly.
§ I hope the Government will consider accepting this amendment. Its drafting may be wrong. The drafting of any amendment is never perfect from the point of view of the Government. The figure mechanism may be wrong. The figures may be too high, they may be too low. But all these points are adjustable; and when it comes to the end of the debate on this amendment I shall willingly withdraw it if the Government will accept the principle, and will put into the Bill at some later stage—at Third Reading, perhaps—a provision covering what we have in mind. I beg to move.
§ 5.10 p.m.
My Lords, the noble Lord, Lord Aylestone, and his colleagues in the Social Democratic Party seem, in this amendment, as ever, to be seeking the path of moderation; and in general that is the path that I, myself, am willing to pursue, but not at the expense of common sense. It seems to me, in looking at this amendment, that it flies in the face of common sense in a number of respects. In the first place, it appears to be based on the belief that the rank-and-file membership of trade unions are more likely to be 556 moderate in their conclusions than their leaders. That seems to me to be most unlikely. Trade union leaders do not easily call strikes. They know only too well what is involved for their unions in a strike—not least in paying out strike pay from their funds.
The Donovan Commission looked into the whole question of compulsory strike ballots, taking evidence both here in Britain and in other countries. I should like to quote from paragraph 428 of that commission's report. They say:There is little justification in the available evidence for the view that workers are less likely to vote for strike action than their leadersMoreover, quoting from the preceding paragraph, No. 427, they say:A law forbidding strike action before the holding of a secret ballot could not be enforced in the case of small-scale unofficial stoppages which make up the overwhelming majority of the total number of strikes".It was therefore the conclusion of the Donovan Commission that the approach of this amendment was likely to be quite ineffective in relation to the vast majority of strikes.
It seems to me that the whole proposition is completely impracticable. It fails to take account of the complex nature of union structures and the delicate negotiations that take place before strikes are called. It implies that unions have a uniform, homogeneous membership. In fact, this is very far from being the case. Unions such as the Transport and General, the Municipal and General, the AEUW and many others, cater for a vast variety of workers capable of being involved in disputes of very different kinds in different parts of the country. Take a hypothetical example of a dispute involving, say, lorry drivers in Lancashire. A ballot is requisitioned according to the terms of this amendment. Are dock workers in London or clerical workers in Plymouth (all of whom might be part of the membership of the same union) likely to be in a position, when the ballot takes place, to express a view about the rights or wrongs of strike action being necessary in the lorry drivers' dispute in Lancashire? I suggest that they are far from being in a position to reach a proper conclusion. But even if they exercised their right in the ballot and voted against a strike, is there any expectation that the Lancashire lorry drivers would take any notice of the result of that ballot? It seems to me that what is involved in this amendment is a sheer provocation to people to take unofficial action.
I have quoted from the Donovan Commission in respect of this particular matter. That commission pointed to other serious objections to compulsory strike ballots. If a strike were to be authorised by a ballot of the total membership, how could it be called off except by another ballot? And does that not bring into delicate negotiations a hopelessly cumbersome procedure? That is why I say that I believe this to be unrealistic and impracticable.
Let us suppose that, in a pre-strike situation, by a ballot the membership has rejected an offer by an employer and, subsequently, in the course of negotiations the employer makes a slightly improved offer. The details of that change might alter in the course of an hour or two of negotiations. How can such proposals in practice be communicated to the whole membership? I would point out that in this amend 557 ment it is the whole membership of the trade union that has to be consulted by ballot. How could the whole membership possibly reach a reasonable judgment on the matter? Such a procedure, I suggest, would completely stultify negotiations and completely hamstring responsible leaders. The more one thinks about this amendment, as I have done, in relation, first, to the structure of complex unions and, secondly, to the nature of the negotiations, the more unreasonable it seems to me that this whole proposition becomes, and I certainly think that it should be rejected by your Lordships.
§ Lord Campbell of Alloway
My Lords, as a matter of principle I oppose this amendment. The introduction of pre-strike ballots may well appear to have some democratic appeal but, on examination, it is, I would suggest, for the very brief reasons that I propose to give, superficial and wholly meretricious; because at this stage of our social evolution as an industrialised society any adoption of this concept would tend to debilitate our efforts towards a national economic recovery rather than to sustain it. Why? Because if one acknowledges the need for a strong, vital, responsible trade union movement (as I do) as part of the essential machinery of collective bargaining, then is it not necessary also to uphold the authority, to uphold the dignity of the executive of the trade union over its membership?
Further, measures such as these will be seen by many not merely as idle but, as the noble Lord, Lord Oram, has just said, as provocative and unworkable. Let us put aside for one moment the interventionist aspect of some mandatory revision of the rule books. Let us put that aside, because if it led to the better ordering of industrial relations after due consultation, it could, I would submit, be justified as such. But let us for a moment put that interventionist aspect on one side. Let us come to grips with the essential question, which is whether such measures would or could lead to a better ordering of industrial relations in practice as distinct from some theoretical approach.
Take the following situation. The executive calls a strike, or some other form of industrial action. Your Lordships will observe that the drafting relates only to strike and not to any other form of industrial action. But never mind about that. Let us assume that the executive calls a strike, or some other form of industrial action, and that falls within the ambit of the clause. It is called for today or tomorrow. Then we have a period of delay while the dissident 10 per cent. or magic 1,000 muster and call for their ballot. Then we have another period of delay while the ballot is taken. Let us assume the ballot turns this dissident minority into a bare majority. In the meantime, the strike or other industrial action, continues. What is so important is that the rank and file membership of that union has become divided against itself and in circumstances where the authority of the executive has not only been challenged but impugned, weakened and denigrated. The strike—as mentioned by Lord Oram—probably continues unofficially.
How do we call it off? How do we bring this to an end? Do these measures which are proposed by this amendment make any contribution to the better order of industrial relations? These two questions are not 558 questions just put in the form of advocacy out of the air, they are real questions which surely the sponsors of this amendment must answer and answer satisfactorily if this amendment were to be accepted. If the answer to either of those questions is "Don't know" then I submit that your Lordships should reject this amendment.
§ 5.22 p.m.
§ Lord Howie of Troon
My Lords, I am amazed that anyone from the Government side of the House should oppose an amendment to this Bill on the grounds that it is provocative. There are people here today who regard the whole Bill as provocative-including me. do not mind; I think many parts of the provocation of the Bill are quite sensible and justifiable; but to damn something in a provocative Bill because it would be provocation itself is incredible. The tiny addition of provocation which this extremely sensible amendment adds is nothing compared to the whole.
I should like to say a few words about the comments of my noble friend Lord Oram who will realize that I agree with him more often than I disagree. He drew attention to the Donovan Commission. That was an important contribution to thinking and investigation into trade union affairs in this country. It was quite a while ago now. Something we should never forget is that, while much of the argument and evidence considered by the Donovan Commission was extremely important, not all the commission's conclusions were equally important.
If we think that we will reflect that the Donovan Commission had one weakness: in many ways it was a hand-picked body, hand-picked to produce a result. It did not actually do it. Nevertheless, it was handpicked. It means that its conclusions should be looked at very, very carefully; whereas the arguments and evidence should be looked at with a different eye because the arguments are strong and the conclusions are often weak. That is the case in the circumstances which my noble friend has outlined today.
What would be so terrible if the members of a trade union were asked their views on whether they ought to go on strike even if these views conflicted with the leadership, however wise that leadership might be? It is a democratic principle to which most of us adhere. It would be divisive, as the noble Lord, Lord Campbell of Alloway, has remarked. But then all these democratic matters are divisive and we are used to them. In most of our activities we can get used to them.
Would it be so awful if a ballot had to be taken to end a strike? As my noble friend Lord Oram said, it is right that there would be certain questions: one would have to ask everybody what they thought. But very often you have to do that anyway. Very often when you come to the end of a strike you have to have a vote. The executive of the union or its conference, or whichever it is, comes to some conclusion; but very often they still have to go back to their membership in some way and ask them. They do so in the unruliness of a football field, or something. The vote is counted and no doubt it is almost always correct. But it is a vote in the same way that noble Lords are asking for a vote here. It is just a different kind of a vote. The vote for which they are asking is a more sensible one.
559 However, there is one weakness in the amendment which comes before us. My noble friend Lord Oram put his finger on it. That is when it talks about the whole membership. That is a weakness. The group which is concerned here should be called something like the "bargaining unit" or whatever the vogue phrase is. It is the group which is really concerned in the dispute which ought to be involved in the vote.
I should like this debate today to end with the Government accepting the principle of the amendment which has been put down and to bring forward at Third Reading a form of words which would remove that particular problem. If it turns out that the Government do not give that undertaking, and if it turns out that the Social Democrats press this to a division, I shall support them. I do not think that their amendment is perfect, and I have said why. But I think it is a damned sight better than the situation that we have now and it should be passed, and if it passed, the Government can sort the matter out at Third Reading.
§ Lord Marsh
My Lords, it is interesting that the noble Lord, Lord Oram, in referring to the amendment, relied heavily on the Donovan Report. This is significant because the Donovan Report must be something like 15 years out of date. This is the significance of this debate. A great deal has happened in the past 15 years. We have seen disputes called over and over again which on all the evidence were unrepresentative. On a number of occasions employers have appealed over the heads of the union leadership to the rank and file and the rank and file have taken a view totally at odds with that of the union leadership. That was not a position which Donovan was looking at 15, 16 or 17 years ago. This is something new and recent.
I am at some odds, with respect, with the noble Lord, Lord Campbell. It seems to me that the horror he expresses at the thought of decisions collectively being taken by ballot really seems to be based on a somewhat thin argument. The proposition that a ballot detracts from the authority of those in post as the leaders of any organisation cannot be sustained. I do not think that I am unique in believing that I personally would have a great deal more sympathy and respect for many union leaders' views if I thought that they represented the opinions of their membership. On the other hand, far from detracting from their authority, which would be very dangerous—that is, to seek to break the authority of union leadership—if union leaders represent the views of their members, the ballots, by definition, will come down on their side. It must strengthen their authority and not weaken it. I cannot see the argument against this.
A number of noble Lords have raised the problems which would come from such a revolutionary, radical, innovative step as having ballots for disputes. Many trade unions have had this provision for generations; they are old unions and frequently very powerful ones. Whatever doubts one may have in theory, in practice the problems do not, and have not, arisen in unions which have always balloted on disputes. As we have seen with the mineworkers' union recently, and with the National Union of Railwaymen quite recently, where there is a ballot frequently it comes out with a different 560 view from that of the leadership. I do not wish to pursue this, because other noble Lords wish to speak; but as regards the principle, there seems to me very little argument against it.
I would raise one question, which perhaps can be dealt with when the Minister replies. The one worry I have is; who actually formulates the question to be balloted upon? I know that I would regard as moderate trade union leaders who have a happy habit of regularly inviting their members to vote in support of an all-out strike, secure in the knowledge that they will not. Equally, of course, it is possible, by determining the question, very much to influence the outcome of the ballot. That is one thing which has always worried me; but, in this country above all others, the actual principle that, if a large number of people are to take action which affects themselves and other people, they should at least be asked to put their cross on a piece of paper, seems to me to be, as a principle, neither offensive nor revolutionary.
§ Lord Boyd-Carpenter
My Lords, the principle, as the noble Lord, Lord Marsh, has just said, of the pre-strike ballot is one that does command a great deal of support in all parts of this House and in all sections of the country. It is a fact that a major strike in a major industry is likely to affect, for better or worse, the wellbeing of the whole industry and of all those who work in it. I therefore start with a bias very much in favour, if practicable, of letting the membership of a union have a say before the grave step of taking strike action is called. I hope the noble Lord, Lord Aylestone, for whom I have always had enormous admiration, will not mind my saying that I think it is a pity that this very important general issue comes before this House on so inadequately framed an amendment.
The amendment is defective in a way which I think is crucial, because it does not make clear what happens if, this having been passed into law and a pre-strike ballot having become part of the law of the land, a union leadership nonetheless calls a strike. I do not want to mention names or personalities that might be of a somewhat inflammatory character, but any of your Lordships can envisage that sort of situation occurring in certain unions. What happens then? This is crucial.
We have been warned, very rightly, from the other side of the House, during earlier stages of the Bill, about the danger of legislating in a way which cannot be enforced. I think we all agree, whatever view we take of the merits of these proposals, that nothing but harm is done by putting on the statute book something which people disregard. But with this amendment by the noble Lord, Lord Aylestone, there is no effective sanction if the union simply goes ahead and calls a strike. It is true that there are some rather vague words in the second subsection of the amendment about the certification officer making such order as he thinks fit. That is so vague as not to consitute any clear indication of the will of Parliament as to what should happen.
By way of contrast, if your Lordships will look at Amendment No. 54 on the Marshalled List, the drafters of that amendment have clearly laid it down that strike action in defiance of that would deprive the union of its trade dispute immunity. If some such 561 provision were included here or, in other words, if a union which called a strike in defiance of these ballot proposals, would be stripped of its trade dispute immunity, that might well be an effective sanction—and of course the larger and richer the union, the more vulnerable would it be to such a sanction. However, for some reason, the framers of this amendment have not included any effective sanction, and are merely asking us to put into the Bill a very important provision—a controversial provision, as we have already heard—without any effective back-up if it is violated. For that reason I could not, despite my general predispositions, support this amendment.
I think there is another point, which the noble Lord, Lord Aylestone, did not mention, so far as I can recall. There is force in the issue of what happens if you want to stop the strike. Do you need to have another ballot? Have you to wait and carry on a strike which everybody wants to settle while you take another ballot to call it off? These are very serious defects, quite apart from the one which has already been referred to, that the whole membership of a union should be balloted even if, as I understand it, only one small section wants to come out on strike. What would happen with, for example, the Transport and General Workers' Union with their vast membership and vast spread of activities? If they are going to ballot their whole 1½ million members—the number has come down a little in recent years—because a few drivers or a few dock workers in one particular part of the country threaten to come out on strike, that is plainly impracticable and it is plainly unenforceable.
Therefore, I think that the House is left in the rather unhappy position that, whatever our views may be on the broad merits of what I think is the most important issue which has arisen on this Bill, we are faced with an actual proposal that is really so defective and so inadequate that it would be very difficult for those of us who take that view to support it.
§ Lord Kilmarnock
My Lords, I should like first to clear up a misconception which I think has been introduced into the debate by the noble Lord, Lord Oram, when he referred to compulsory strike ballots. If your Lordships will read the amendment here, you will see that there is no provision and no requirement on the Secretary of State to order compulsory strike ballots.
Another objection which was raised by several noble Lords concerned the question of how a strike can be called off. If it is not supported by the membership in the first place, it simply does not happen and so no calling off is required. And if it goes ahead, in effect, nothing has been changed and it will follow its normal course and reach its natural conclusion, whatever that may be, as I think the noble Lord, Lord Howie implied. Nothing will have been lost, and something may have been gained.
The other substantial objection which has been put forward concerns the phrase, "the whole membership". There may be something in that but, as the noble Lord, Lord Howie, also pointed out, if we accept the principle of this there is an element of tidying up which can be done once we have got the principle on to the statute book.
In speaking to this amendment, I should like to bring before the House one or two slightly more 562 detailed considerations. In the first place, there already exists in Section 1 of the 1980 Act, a perfectly good provision for payments in respect of secret ballots. That is to say, a union can claim and obtain payment of the cost of balloting for any of the recognised purposes. The first of these is referred to in Section 3(a); namely,obtaining a decision or ascertaining the views of members of a trade union as to the calling or ending of a strike or other industrial action.That is already there on the statute book. My noble friend Lord Aylestone has pointed out that this provision is hardly ever used. It is correct to say that not a single application was received from a union affiliated to the TUC during the first year of the application of the Act. In fact, the certification officer did make a payment of just under £13,000 to eight small, non-independent unions in respect of ballots for internal purposes; but no major union affiliated to the TUC applied under the 1980 Act.
I turn now to the question of interference in the union rule books. A number of noble Lords in all parts of the House are worried about this and it springs, of course, from the claim of a union to be a voluntary association. Whatever the legal position is, it is clear that a union is not, and never has been, a voluntary organisation in the same sense as a sporting or social club. The actions of unions can, and often do, have a far greater impact on the public at large than any other type of voluntary organisation.
To some extent, we recognise already that rule books are not entirely private property. The certification officer—the successor of the Registrar of Friendly Societies—already has a number of reponsibilities in relation to unions and their rule books. He alone can confer the independent status, which is the indispensable pre-condition for setting up a closed shop; he must keep copies of the rule book available for inspection by the public, under the Employment Protection Act 1975; he may receive complaints concerning breaches of rules and he must supervise the transfer of rules in cases of amalgamation.
Under the Trade Union Act 1913, the certification officer, as he is now called, must approve the political fund rules, which have to conform to certain requirements, including a secret ballot of the membership as to whether there shall be such a fund. He does not, it is true, at present have any power to refuse to register a rule book, because it lacks rules requiring other types of ballot, but it would certainly be possible to confer that power on him, and the machinery is all there.
Before I leave rule books, I want to remind the House that the noble Lord, Lord McCarthy, himself, writing some 20 years ago, was not averse to interference with rule books. I quoted this earlier in Committee, but it was at 3.10 in the morning, so perhaps I may repeat it. At page 280 of his celebrated work on the closed shop, he wrote:It should also be made compulsory to submit union rule books to an authorisation process aimed at enforcing standards of functional necessity and natural justice. To operate these reforms, it might be advisable to create a public authority which could, if necessary, take over the functions of the Registrar of Friendly Societies in regard to trade unions. The authority would have the duty of administering what, in effect, would be another trade union act.563 Possibly the noble Lord did not have in mind quite what we propose here, and possibly we shall be accused by a distinguished balletomane of ballotomania. But the fact remains that the noble Lord was not against, and was, in fact, positively in favour of, imposing some sort of external discipline on rule books, and he was also, at that time, in favour of ballots for election to certain union executives.
I turn to the mechanism. We are not rushing into compulsory strike ballots, as the noble Lord, Lord Oram, implied, or giving the Secretary of State power to order a strike ballot. We are simply providing a mechanism that can be triggered by 10 per cent. of the membership. I know that we have already had some discussion about triggers, in relation to the approval of the continuance of closed shops by the membership. There were plausible arguments both ways, as to whether a trigger mechanism or an automatic review ballot was to be preferred for that purpose. But, in this case, there is no doubt that the trigger is the best way of allowing any significant section of opinion within a union to test the views of their brethren before a strike is approved. As my noble friend Lord Aylestone said, we are not against unions. We are not striving to flagellate them. We simply seek to introduce an instrument whereby members may exercise some control over their leadership when they are in disagreement with it. This would not only protect members' rights, but would go a long way to raising the standing of unions in this country.
§ 5.44 p.m.
§ Lord McCarthy
My Lords, the noble Lord, Lord Kilmarnock, says that he is not against trade unions—and I accept that from him—and I am not against ballots. We on this side of the House who are saying that we are against this amendment, are not against ballots. I am not even against unions having more ballots, or having more rules which regulate ballots. But that is not what we are being asked to do. We are being asked to say that 10 per cent. or 1,000—and if a union has 10,000 members it comes out at 1,000—can invoke a procedure before there can be a strike. That procedure imposes upon a union the necessity of a ballot of all the members, so that, for example, as has been said by one of my noble friends on this side, or by the noble Lord, Lord Campbell of Alloway, in the case of the Transport and General Workers' Union, which now has a membership of just under 2 million, 1,000 of those members from anywhere throughout the union could stop not the whole of the T & G, because the whole of the T & G never goes on strike, as less than 10 per cent. of the T & G's membership is in any one bargaining unit, but could stop any powerful, occupationally identifiable group in the T & G, unless there had been a ballot of the whole of the union's membership.
As has been said by noble Lords on both sides of the House, that is silly and we know it is silly. Furthermore, if we look still more at this amendment, we find, as has been said, that there is nothing in the amendment which regulates the way in which the sanctions are to be imposed, if they do not occupy themselves in this way. The amendment also assumes that it is the executive which calls the strike. In 564 many unions, that is not the case. It is not the executive which calls the strike. In fact, it may be the membership which calls the strike—not all the membership, but that section of it which is involved in the strike. The reason why some unions tend to have rather more ballots that you notice than others—for example, the National Union of Mineworkers—is that most of their members are in one big bargaining unit. Then, in some way, they are a very simple union, and it is very simple for them to have a ballot of their members, because all of their members are involved.
But in unions such as the T & G, the G & M, the UPW and all kinds of unions which have a wide variety of membership all over the place, with some members working in many different industries or occupations, it is often the case that a ballot is inappropriate, not because the union does not want one, but because you cannot really find out where the membership is for the purposes of operating a ballot. Therefore, unions operate all kinds of mechanisms, some of them formal, some of them informal and some of them through representatives. For what it is worth—and I promise the noble Earl opposite that it is not Gennard—the Department of Employment has financed research on ballots, which is taking place in Oxford University. The research shows that ballots are on the increase; more ballots are being held in more unions all the time, which is a good thing.
The dangerous or disturbing thing is that more and more ballots are being held without executives or leaders making recommendations. The tendency today is ballot by drift. What union leaders tend are not certain of what the membership are saying. That to do is to throw it to the membership, because they is a rather dangerous development. But it is not a reason for voting for this amendment, which is full of holes and totally impractical, and we shall have to wait and see what the Government do in their own Green Paper or White Paper in the autumn.
§ Lord Renton
My Lords, for once, I find myself m a considerable amount of agreement with what the noble Lord, Lord McCarthy, has said. In considering this matter, one cannot ignore the point made by the noble Lord, Lord Kilmarnock, that in Section 1 of the Employment Act 1980 we took power for the Secretary of State to make regulations to enable secret ballots to be held on an employer's premises, and to be paid for by means of the procedure of the certification officer. Those ballots could relate—I quote from subsection (3)(a) of Section 1—to:obtaining a decision or ascertaining the views of members of a trade union as to the calling or ending of a strike or other industrial action".Therefore, it seems to me that the principle of ballots by the membership is one which is accepted already; at any rate, on the Government side. I was relieved to hear the noble Lord, Lord McCarthy, point out—which is the case that this principle is applied by a number of trade unions.
I rise to ask the Government—it may be that I am asking too much, because I have not given notice of these two questions—first, what use is it intended to make of this power given by Section 1 of the 1980 Act, 565 if any use at all? I think that we are now entitled to know, because the principle is an important one. Secondly, I am wondering whether in some way, at some time, the Government could tell both Houses of Parliament what researches they have done with regard to the use of ballots in those unions where the rules provide for ballots as this amendment in a way tries to do, and what have been the results of that. This is an important matter. There have been cases, even this year, in which it was abundantly plain that the union executive called for strike action when they did not have the support of the membership. In one notorious recent case, fortunately the strike caved in without the membership having even been consulted. But I venture to suggest that if the union had been consulted in that case the executive would not have found itself in the embarrassing position in which it eventually had to give way under pressure from the TUC.
§ Baroness Burton of Coventry
My Lords, I do not wish to make a learned intervention, but I should like to say something about the broader aspect of this matter and about the public interest. I certainly am not anti-union but I am very pro-general public. I think that the general public has had a very raw deal over the matter of strikes, whether or not the strikes have been justified. In listening to what has been said today, I have been very pleased by the number of Members who have spoken about the principle of this amendment. If the general public were to be asked, and however the question were to be phrased—whether or not they thought members of unions should be consulted before a strike was called—I believe that they would say, yes. Anybody who does not accept that is completely out of touch with the general public who have suffered from those strikes.
My noble friend Lord Aylestone said that although the unions and workers have a right to strike they also have a right to decide. I cannot be the only person who looks at television on the occasions when we are not in this House. How many times have your Lordships seen on television workers, or working people as they like to be called (I think that we are all working people, but let us speak about the workers whom we have seen on television) who, when asked what they felt about the strike, said that they were not consulted and that they had never heard about it. On those occasions I have said to myself, "Why on earth don't they get up and say so? But we all know about the intimidation which ensues if some people do get up and say so.
I listened to what the noble Lord, Lord Boyd-Carpenter, had to say. I would never cross swords with him on a matter of legislation, or on wording, or on sections. Probably this amendment is not too well worded. Most people who put up amendments without Government help know that amendments are not necessarily worded as well as the Government would word them. However, I do not want to boggle on the wording of the amendment. Instead I want to take up the noble Lord, Lord Boyd-Carpenter, for asking what would happen if the leaders still called a strike when the vote had gone against them. I can tell your Lordships that if three-quarters of the union membership voted against a strike and the leader 566 called it, he would be out very quickly and there would be no strike.
§ Lord Boyd-Carpenter
That was not the question I asked. My question was: what would happen if, despite the provisions of the law, assuming this to be enacted, the union leadership called a strike without taking a ballot at all?
§ Baroness Burton of Coventry
I apologise. I thought the noble noble Lord asked what would happen if the ballot went against the leaders. I withdraw my remarks. I think we are agreed that the leaders would not call a strike if the ballot had gone against them. I listened also to what the noble Lord, Lord Oram, had to say. I thought it was so extraordinary of him to say that it was a matter of common sense not to ask members of a union what they felt about something. I am not quibbling about whether the method suggested here is the right one. But surely it cannot be a matter of non-common sense to suggest that people should be asked whether not or they wish to strike—which is certainly what I understood the noble Lord, Lord Oram, to say. Later in his remarks he went on to say that if a decision were reached—I do not know whether he said the probability or the possibility was that the people concerned would not abide by that decision. I do not think there would be any use in having a vote if people did not abide by it.
My Lords, when I referred to common sense I had in mind the impracticability of this particular amendment, and I think I gave a number of reasons why it is impracticable.
§ Baroness Burton of Coventry
My Lords, if we just leave it at the impracticability I understand what the noble Lord means; but I think he went on to say that if a whole membership were asked to vote there would be the difficulty of the smaller group, a point which was taken up by the noble Lord, Lord Howie of Troon. I was very pleased to hear what he had to say. That the whole membership is a problem I quite accept. What I hope will come out of today's discussions is that this principle should be put forward. The general public has had enough of this. I very much hope that when the Government come to reply they will say that they can at least accept the principle of our amendment, even if they cannot accept it as it stands at present; namely, the principle that members of a union should be asked before a strike is called.
§ Viscount Massereene and Ferrard
My Lords, this principle has been raised before and it is a very attractive one. However, I do not think we have heard from the various noble Lords who have spoken sufficient to justify this amendment's being accepted. I am not a parliamentary draftsman, but even I can see that this amendment would not look very good in the Bill. I agree with the noble Lord, Lord Oram, that one cannot have a ballot for every little strike. Hundreds of little strikes take place where it would not be at all practicable 567 to hold a ballot. At one time I had an interest in tramp steamers. When the mercantile marine is spread throughout the world I realise that it would be very difficult to ballot all members; it could take six weeks or two months. When, on the other hand, there is a public utility strike which affects the whole of the public—a strike, for instance, which affects water or power supplies—where the public are atrociously inconvenienced and blackmailed, it is a different picture. That happened in this country during the ghastly winter of four or five years ago when even the dead were not buried. There must therefore be legislation soon to prevent that industrial anarchy from ever happening again. In the case of great crises like that—a state of emergency—I think the unions involved should be made to hold a ballot. I am quite sure that then there would be a vote of union members to stop the strikes. I hope that one day there will be legislation along those lines.
§ Lord Wilson of Langside
My Lords, it occurred to me a moment ago that with the noble Lord, Lord McCarthy, and the noble Lord, Lord Boyd-Carpenter, in alliance, holy or unholy according to one's view, there could be little hope for the amendment moved so effectively by the noble Lord, Lord Aylestone, and the noble Lord, Lord Kilmarnock. I say that about the alliance, because I have always felt that if ever I were on the wrong side of the bar in a court of law and had a free choice of advocate I would have either the noble Lord, Lord Boyd-Carpenter, or the noble Lord, Lord McCarthy, to defend me and then I could ensure that justice would not be done.
This amendment has been attacked, first, as contrary to common sense. That kind of an attack always has a sting in it, particularly when it comes from somebody like the noble Lord, Lord Oram, for whose views, and the moderation with which he normally expresses them, we all have the utmost respect. But this time, surely, he has gone badly wrong. First, he prayed in aid in support of this view the Donovan Report. The noble Lord, Lord Marsh, said all that needs to be said about that. Donovan is out of date. Donovan affected all of us who had feelings of concern about these matters. We took our attitude on ballots for many years, I remember, from what Donovan had said. He came out against it. But times have changed since Donovan, as Lord Marsh so effectively said, particularly in the past several years. I hope that your Lordships will think seriously about that circumstance if you are asked to vote on the amendment.
The noble Lord, Lord Oram, having prayed in aid Donovan, said that the provision could not be enforced, and asked what could be done about the vast majority of unofficial strikes. The amendment has nothing to do with unofficial strikes. We cannot deal with unofficial strikes in this way. It is not pretended or claimed that the amendment would solve or contribute to the solution of that problem. Apart from that, how can it be regarded as anything but extravagent in the extreme to suggest, in this day and age, that it is contrary to common sense to require independent trade unions to provide in their rule books that 1,000 members, or 10 per cent. of their membership, may require a ballot of the whole membership on a decision 568 reached by the executive of the union? I am not a member of a trade union in the ordinary sense. One does not regard lawyers, somewhat cynically, in that light. However, I can see that much of that would be arguable, and many people with more experience in these matters than I would argue usefully about it How can it be sensibly said that it is contrary to common sense, after all that we have been through?
My Lords, much has been said about theory and practice and about the terms of the amendment. The amendment has its defects and it would be foolish to pretend otherwise, but the Government must make up their minds on the principle of this matter and let us know what they really feel and think.
§ Lord Wedderburn of Charlton
My Lords, will the noble Lord, Lord Wilson, tell your Lordships whether he accepts that the analysis of the Donovan Report was shown in all major respects to be correct over a period of 10 years in a publication last year entitled The Changing Structure of Industrial Relations in Great Britain, edited by Professor Brown, which was produced after prolonged research by the industrial relations research unit at Warwick University?
§ Lord Wilson of Langside
My Lords, I have been sitting here most of today, and some of the previous day on Report, criticising those of their Lordships who spoke more than once on the Report stage of the Bill. I shall not do that myself. I shall happily debate the Donovan Report with the noble Lord, Lord Wedder-burn, in public or private at any time. But I am not allowed, except with the leave of the House, to speak more than once and I do not intend to ask leave of the House.
My Lords, this is the second occasion on which we have debated the subject of strike ballots during the Bill's passage through your Lordships' House. It has been fascinating because the opinions, as a scientist might say, fractionated out in a curious fashion.
§ Lord Aylestone
My Lords, I have no intention of making a speech. However, the noble Earl, Earl Ferrers, said that we have discussed this subject for the second time during the progress of the Bill. In fact, on the other occasion we discussed ballots for the executive and for officers, not for the general public or strikes.
My Lords, I accept Lord Aylestone's correction. The principle of discussing ballots as a whole is probably what I should have referred to.
Rather like the noble Baroness, Lady Burton, I shall not make a learned intervention, I assure her. Most people have an initial natural sympathy for the amendment of the noble Lord, Lord Aylestone. I agree with the noble Lord that nobody benefits from strikes, least of all the general public who, as the noble Baroness, Lady Burton, said, are often the victims and have no redress whatever. I agree with the noble Baroness that many people are becoming acutely concerned when it appears that through the intention or the result of strike action members of the public have their legitimate way of life totally obstructed. I can understand 569 those who feel that there must be a ballot to stop such strikes when the leadership are out of tune with the membership. My noble friend, Lord Boyd-Carpenter, is absolutely right in saying that a major strike in a major industry causes a lot of concern to many people. We must seek to avoid strikes.
It is perfectly true that the Department of Employment carries out a great deal of research, as the noble Lord, Lord McCarthy, said. The Department has conducted a great deal of research on ballots, and I was interested to hear the noble Lord say that it was not done by Professor Gennard. I hope that the noble Lord will also agree that such research as has been done has not been hugger-mugger in the slightest. Be that as it may, when we discussed a similar amendment on a previous occasion my noble friend Lord Gowrie summed up the Government's position in two words —"Yes, but". The noble Earl expressed then, and I express today, a very real sympathy with those people who wish to see the more widespread use of secret ballots by trade unions before strikes are called. He explained that there were serious difficulties about legislating in this area which made it impossible to accept the amendment then concerned and the amendment before us today. Although it is different, there are, nevertheless, similar aspects on which I feel concern and which I am bound to express to your Lordships.
Despite our natural sympathy for Lord Aylestone's amendment, many of the objections remain. The noble Lord, Lord Oram, said that the objections came under the heading of common sense. I would not use that word for fear of implying that those who took a contrary view lacked that capacity, and I do not believe that that was the noble Lord's intention. However, he made one or two remarks with which I agree. When one looks deeply into the effect that the amendment could have, some of the remarks made by the noble Lord, Lord Oram, very much hit the nail on the head. When the Green Paper, Trade Union Immunities was published it was curious that the majority of employers who responded to it were not in favour of making strike ballots compulsory. I know that an opinion poll published in the Financial Times last week indicated support for such legislation. It is very easy, when one is asked a simple "Yes" or "No" question, to give a simple "Yes" or "No" answer. There may be other factors which influence our response of which we are unaware. In any case, we cannot lightly cast aside the considered and detailed responses that we received to the Green Paper.
The noble Lord, Lord Marsh, said that the answer to the ballots depends upon who puts the question. He asked, who puts the question? The answer to that is that if the union conducts the ballot the union puts the question. I agree that often the reply to the question depends upon the nature of the question.
Perhaps I could give your Lordships some examples of the cogent arguments—and they were cogent—which were put to us. First of all, employers wanted to retain the initiative to hold a ballot of their employees where they felt that this would be conducive to resolving the dispute. They saw a danger that a strike which might have been over in just a few days could be intensified and prolonged through the endorsement of a ballot. Another point made was that a positive 570 ballot result could be used as a weapon by a union, which had no intention of calling a strike, to weaken the employer's position in negotiating. It is not irrelevant to look at the experience of the United States of America, where they have found that statutory ballots almost always go in favour of strike action. The noble Lord, Lord Marsh, said that ballots often come out with a different view from that which the leadership indicated. That is not the experience of what has happened in the United States of America. It would appear that they regard it as a vote of confidence in the union and even trade unionists who may not be very keen on striking may be unwilling to expose their union to legal action by voting against a strike.
Employers have also pointed out some of the practical difficulties. They stress that strikes are very often small and localised in scale, and that it would be unrealistic to impose a complex balloting procedure in every case. The amendment before us, despite the fact that some noble Lords opposite said the wording may not be correct (and I accept that), does not take account of that sort of strike. In the example which the noble Lord, Lord Oram, gave, it requires the entire union membership to be balloted, whenever the union executive has decided to call a strike—whereas in some large firms it may not be at all appropriate to ballot the whole of the employer's workforce. The noble Lord, Lord Oram, said that if one had a ballot to start a strike, how did one stop it unless one had another ballot? That is bound to take time. There are also practical problems about administering trigger ballots of the type suggested in this amendment. Employers pointed out that it would be virtually impossible for union members to take advantage of this trigger unless the union made the facilities available.
Perhaps the most compelling—and in some ways most curious—argument against mandatory strike ballots is that they would be likely to encourage a proliferation of unofficial action. Regrettably there are a lot of hotheads in the trade union movement and they would be even less likely than at present to seek constitutional approval for their action if this opened up the possibility of delay through a statutory secret ballot. There are also those who want to strike irrespective of the wishes of the majority of members concerned. Rather than risk having the strike overruled, they might simply go ahead on an unofficial basis.
Then there is the problem—as my noble friend Lord Boyd-Carpenter said—of finding sanctions which are effective but which do not ultimately lead to the creation of martyrs. We want to encourage, and shall continue to encourage, trade unions to ballot their members before calling strikes. In particular, we hope that the Trades Union Congress will drop what is an unreasonable boycott of our funding scheme. But we believe that these should be voluntarily conducted by the trade unions and not imposed statutorily. The Trades Union Congress has boycotted the funding scheme. That is a scheme designed for the purpose of furthering union democracy. I was glad that the noble Lord, Lord McCarthy, said he was in favour of unions having ballots and that he was in favour of unions having more ballots. I hope that he will use his influence to persuade his trade union colleagues to 571 take advantage of the facilities which the Government have produced.
My noble friend Lord Renton asked what use has been made of this feasibility. In 1981 there were only two applications for funds for strike ballots and only one of those was succesful in its application. That is a desperately small figure for something for which the Government have provided funds in order to encourage democracy and union democracy. I hope that the trade unions will take advantage of this; if they did, that would prevent the possibility of statutory suggestions coming to the fore. It is essentially a matter for trade unions and I hope they will do it.
The first question my noble friend Lord Renton asked was whether they could apply for a refund of the postal and stationery expenditure incurred from the certification officer. They can apply for these refunds. The certification officer will refund the union provided that the ballot has been conducted in accordance with the requirements of the scheme.
For the reasons I have given, I hope your Lordships will understand that we have totally the sympathy behind the amendment insofar as it seeks to encourage union democracy and so far as it seeks to encourage the lessening of strikes, which are totally damaging. But we do not believe it is right to put the amendment as suggested into this Bill and make it a statutory obligation. For that reason I hope that the noble Lord, Lord Aylestone, will see fit not to press his amendment.
§ Lord Aylestone
My Lords, before the noble Earl sits down, he has been kind enough to say that Her Majesty's Government are sympathetic to the amendment; would he go so far as to say that they accept it in principle?
No, my Lords. What I said was that I am sympathetic to the motives which constructed the amendment and which lay behind the amendment, but for the reasons which I gave I did not think it was correct to put these statutory obligations into the Bill.
§ Lord McCarthy
My Lords, before the noble Earl finally sits down, I must apologise for leaving the Chamber but I was so interested in what the noble Earl was saying that I got a copy of the Green Paper. I understood the noble Earl to say that the consultation in relation to the Green Paper was to the effect that most employers did not like compulsory ballots. I cannot find this in the Green Paper. I also understood the noble Earl to quote a few instances, but I cannot find those quotations in the Green Paper. They may be there, so my point and question is this: is that the case and can we have further quotations of this kind? Can we have a supplement to the Green Paper?
My Lords, I believe that the noble Lord, Lord McCarthy, must have had his mind temporarily, and only momentarily, concentrated upon Professor Gennard. What in fact I said was that the response to the Green Paper elicited that information.
§ Lord Aylestone
My Lords, we have had a good debate on this amendment and I am grateful to everyone who has spoken. This is not an occasion when one replies to every speaker and nor do I intend to do so; there are many more amendments to come, and I will be very brief. When we discussed an earlier amendment in the name of the noble Earl, Lord De La Warr, and a second amendment in my name—both of which were withdrawn—we were given an assurance by Her Majesty's Government that they were in favour of the election of officers and executive committees of trade unions in principle; and, while not promising legislation soon, the Government said that they were looking at it with that in mind. That was the reply we had on that occasion. On this occasion, on pre-strike ballots, Her Majesty's Government have now made it absolutely clear that they are sympathetic but that they do not accept quite the same view that they did on the earlier amendment. That is satisfactory from my point of view because it indicates where the present Government stand. For that reason, I do not believe there is a need to say anything more, and I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 14 [Actions in tort against trade unions and employers' associations]:
§ 6.20 p.m.
Lord Wedderburn of Charlton moved Amendment No. 42:
Page 17, line 38, after ("question") insert ("by reason only of that ground or of such an agreement or combination").
§ The noble Lord said: My Lords, this amendment is the first of a number of amendments standing in the name of my noble friends and myself which relate to Clause 14. Amendment No. 42 deals with the central point and it may be convenient to your Lordships, therefore, if I say a word about Clause 14, which is common to the group of amendments, Nos. 42 to 48, although I would wish to speak to some of the others later. On Amendment No. 42, we now have a situation in the Bill where Clause 14 opens the Taff Vale gate of trade union liability in tort which was locked for so many years, and it is of course too late to go back on that, albeit that we on these Benches oppose that fundamental change very strongly.
§ It is our feeling—and we hope that we shall carry your Lordships and the Government with us on some of these amendments—that there is rather a mess in Clause 14 which should at least be cleared up, and that if the unions are to be subjected to these liabilities and special rules in Clause 14 then they should at least be rather more clear. The problem is largely one not of the liability itself, because that has gone in Committee, but of the issue of vicarious liability, the issue of for whose acts, and when, a trade union will be liable. The Government, as we know from the debates in Committee, took due account of the problems that arose under the 1971 statute where they found the common law, which raised critical issues in regard to such problems as whether shops stewards acted with authority as the agents of the union, unsatisfactory for 573 its purpose. They therefore put in the Bill a set of principles which were, and are, very different from the common law in subsections (2) onwards in Clause 14.
§ This different statutory code of agency applies to trade union liability in tort but it does not apply to liability for all kinds of tort. Subsection (2) of Clause 14—and here is the point of the first amendment—distinguishes what we came to call in Committee the industrial torts, those set out in paragraphs (a) and (b), those affected by Section 13 of the 1974 Act, which we might call the interference-with-contract type of liability, and, in paragraph (b), the conspiracy liability which goes along with the combination to interfere with contracts. These industrial torts are distinguished out and are made subject to the special code of agency to which other amendments will turn later.
§ In Committee we asked the Government a very obvious question: suppose in a set of proceedings against a trade union allegations were made which related to industrial torts of interference-with-contract or conspiracy, material which is within paragraphs (a) and (b) of Clause 14(2) and additionally, in the same statement of claim, other torts which are common law actions not within the area that we now call industrial or economic torts. We thought we had found a very simple and quite common illustration, that was pickets who may, as sometimes happens, interfere with contracts and who also may, as sometimes happens, commit the tort of nuisance. The noble and learned Lord who answered for the Government on that occasion rather took me aback by saying that he thought this was just possible; but there are of course many actions and even reported cases where this has happened.
The recent decision of Mersey Docks and Harbour Company against Verrinder in 1982, Industrial Relations Law Reports 152, shows a very simple case of pickets being held liable possibly for interference with contract but basically to be liable in tort for the tort of nuisance, they having had, in the words of the judge:
the intention to force the company to take some action against shipowners who employed cowboys and scallywags".
I pause to say that it is interesting to find here in the interstices of a simple little case the very common trade union wish to stop the operations of undercutters, cowboys and scallywags. The judge went on:
That is tantamount, in my view, to an attempt on the part of the defendants to regulate and control the container traffic to and from the company's terminal. If that is right the conduct of the pickets, in my view, is capable of constituting a private nuisance".
That may well be a correct assessment. Certainly it appears to be a correct assessment, if an unfortunate one, of present law; but it means that it is a typical type of case where those acting on trade union business, if they fail to find a trade dispute defence—and that was a matter also for argument in that case—may be liable for the industrial torts and liable on the same proceedings in respect of some other liability.
The noble and learned Lord, Lord Mackay, put before your Lordships a very simple response to the question: what happens then? He said, and I quote his response on 13th July—in a long passage of which I will read a little, at which we have looked very carefully—that in a case of that kind:
subsection (2) gives the rule for those proceedings, so that one does not have the kind of particular difficulty to which the noble Lord referred at the very end of his speech"—
that was me.
It talks about proceedings and so long as material of the type of (a) or (b) is in those proceedings, that will be the rule"—[Official Report, 1317/82; col. 208.]
He confirmed this later by what I afterwards came to think of as a rule for mixed proceedings such that if there were mixed proceedings the common law principles of vicarious liability went out of the window and the statutory rules applied. I take it that I have that right. All 1 can say is that it seems to me to be very wrong.
Why should a Government that say, as this Government say, that they want a special code of agency in relation to the industrial torts also devise their Bill in such a way that it captures the trade union for another common law liability on the principles of agency which they say should be applicable to industrial torts alone? —because the noble and learned Lord also said, and he will tell me if he thinks it unfair:
the basic reason for singling out the industrial torts for special treatment in Clause 13"—
which of course is now Clause 14—
is that they are the torts associated with the calling of industrial action, and it is in relation to the calling of industrial action that the main problems of union liability are likely to arise".—[Col. 208.]
Now if the Government want to associate matters that are involved with the calling of industrial action with their special code of liability for unions, to which we shall come later, let them do so; but let them not, as it were, put out in the section a suggestion that only industrial torts are involved, because it would be only the industrial torts plus any other kind of liability which a plaintiff may put forward in the same proceedings, and there seems to be no reason why the common law principle should be thrust aside for the extraneous torts.
Secondly, it is even doubtful, with great respect to the noble and learned Lord and his advisors—or it must surely be rather doubtful at any rate, whether the clause really means that. I see the point made by the noble and learned Lord in Committee when he insisted that the word "proceedings" is the essential one in subsection (2). I see the force of that. But the clause also says:
for the purpose of determining in those proceedings whether the union is liable in respect of the act in question, that act shall be taken to have been done by the union if, but only if, it was authorised or endorsed by a responsible person.
The assessment of the juridical character of the act does not necessarily have to be the same in respect of different parts of the action, and so the Government should surely give us a clearer clause, if this is what they want to do, of their own devising at Third Reading.
§ But I sugggest that their objective really is not just and it is not right, because, if we take the very simple case of a set of proceedings where a statement of claim is presented to a trade union and its legal advisers for torts which are not the industrial torts within the definition of this clause—and I appreciate there may be some difficulty in defining them but we take what we have—it then believes it has a case, say, of trespass, nuisance or the example given by the noble and learned Lord, possibly of false imprisonment. The trade union's advisers therefore get under way and prepare 575 the vicarious liability advice on the basis of the common law principles, because it does not fall within the Bill.
§ Halfway through the case, or even shortly before it comes on, an amendment is made introducing an industrial tort of head claim. I hope the noble and learned Lord will not say, "Of course, all defendants will be protected by the court against unreasonable amendment of the pleadings". That is true, but that defence is really not enough. It may be perfectly proper to allow the plaintiff to amend the pleadings at some stage, even during the case; it has been known to happen in the Court of Appeal and even in your Lordships' Judicial Committee. It may be perfectly proper on the present rules of the Supreme Court to abide by that amendment, for the court to exercise its discretion. At that point for the defendants the entire principles of liability are changed in terms of those for whose acts they are responsible.
§ That cannot possibly be right. Either the Government must from the beginning say that all liability which is connected either with trade disputes or industrial action, or some such definition, is included, so that the defendant knows that that is caught by the statutory code of agency, and not other torts which are not to do with industrial action, or they must give up their position on mixed proceedings. It seems to me they have no other way forward in justice or in equity. If they want the unions always to be liable in respect of industrial action on the basis of the statutory code of agency, then I say the Government should say so, because that effectively seems to be what the Government are saying. If, on the other hand, they want the statutory code of agency to apply to the specific industrial torts, which seems to be arguable on the clause as it is, then let them say that. But let them not come along and say that, on the one hand, they want the statutory code of agency to apply to the industrial torts, and then say, "Oh, but if we have an action where it is partly that and partly some other liability to which the Act would not apply, then of course the Act overtakes that liability". At least, if they do want that, they must surely put in a subsection to make that clear. I suspect the Government would not wish to make that clear in quite that form, because, among many examples that could be given, to have the basic principles of vicarious liability changed in the middle of the case in respect of a trade union action on one side or the other, is a quite absurd idea. That would be the consequence of the mixed proceedings principle.
§ Therefore, I say to the noble and learned Lord that this amendment, by inserting after "question" in subsection (2)—that the union would be "liable in respect of the act in question by reason only of that ground", which is that industrial tort ground, "or of such an agreement or combination", which is that industrial tort conspiracy, would bring the clause into line with my suggestion that the industrial tort, industrial action limit should be observed. This is an attempt to make the Bill more just and more reasonable and more clear. At the moment it is the subject at least of uncertainty. Therefore, I would ask the noble and learned Lord whether he would carefully consider this apparently small point, but one which could involve a very great deal in litigation under this Bill. I beg to move.576
§ Lord Mackay of Clashfern
My Lords, I hope the noble Lord, Lord Wedderburn, will assume that what he says about this matter, and what he has said about these matters, I would carefully consider without the necessity of expressly saying so. The situation so far as mixed proceedings are concerned I sought to explain on the last occasion, and such consideration as I have been able to give it since suggests to my mind that the answer which I gave them is correct. Indeed, I think the form of the noble Lord's amendment suggests that he thinks that, too.
If we can then go on to whether that is a good or a bad thing, which is the main question the amendment raises, the situation is that the industrial torts, as the noble Lord calls them, are subject to the Clause 14 rules of liability. Our view is that where the industrial torts arise associated with others, arising normally out of the calling of industrial action, it is appropriate that the special statutory rules should apply. The statutory rules are devised to cope with union liability in cases arising from industrial action. It seems right that consequences which may flow from that industrial action, whether they are, strictly speaking, industrial torts, or are associated with the industrial torts in relation to the code of action, should be covered by these rules. I hope that on consideration the noble Lord will feel that that is a reasonable position to take up, and will not press this amendment.
§ Lord Wedderburn of Charlton
My Lords, I do not think it reasonable; I do not think it just to have a position where a trade union is judged on totally different principles in one case where 24 counts in the statement of claim allege torts of trespass and nuisance, where the common law applies, and in another case where 23 allege trespass and nuisance and one tiny little interference with contract is thrown in, which is very unimportant but nevertheless there because the plaintiff wishes to allege it; then all the principles that govern the other 23 paragraphs of vicarious liability, in regard to whose acts the union is liable for change. If the noble and learned Lord wants to put forward what he said—what I remember him saying; I would have to look at Hansard—that the union should be liable for the consequences of industrial action in respect of all types of tort, and that industrial action would involve an industrial tort and therefore the others were just tacked on, of course it sounds very fine.
But suppose it is the other way round. An interference with contract may have nothing to do with industrial action; a conspiracy to break a contract may have nothing to do with industrial action. If the union officials conspire to break a contract with the printers and commercially commit a tort, they may here fall within the industrial code. That illustrates the weakness of the Government's position. The weakness of their position is this. When the noble and learned Lord says, "I want the unions to be under this statutory code "—this terrible statutory code, as we see it—"for the purpose of industrial action liabilities", that makes sense. If he put that in the Bill it would make sense. But the Bill says they are liable for industrial torts under the statutory code, and they are liable for all torts under the statutory code so long as 577 the industrial tort is tacked on, and then they are liable under common law for torts where no industrial tort is tacked on. Those are the three positions.
That is not what the noble and learned Lord stated as the Government's objective. It does not cover only industrial action within the industrial torts, and it covers situations which are nothing to do with industrial action, where you happen to have one minor allegation of what we have called the industrial tort. I have no option, obviously, at this stage but to withdraw this amendment, but in the Government s own interest one would have thought that they would try to get their objectives into the form that they wish in the Bill. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 6.38 p.m.
Lord Wedderburn of Charlton moved Amendment No. 43:
Page 17, line 45, at end insert ("at a meeting held and conducted in accordance with the rules").
§ The noble Lord said: My Lords, we wish to move the amendments that now stand in my name and in the names of my noble friends in the following way, if your Lordships would wish that we do so. I would move Amendment No. 43, speaking at the same time to Amendment No. 46, and, with your Lordships' leave, speak to Amendment No. 44, with which in logic must be taken Amendments Nos. 45 and 47. If I may do it that way, although this may make for somewhat longer interventions, nevertheless, it will, I hope, in the end assist your Lordships in taking these amendments more briefly.
§ They are all amendments to the statutory code of agency to which previous amendment adverted, and they are matters on which my noble friends and I feel extremely strongly because here we come to the crunch on these matters. The statutory code of agency, which it is our view is a quite unjust departure from the common law principles of agency liability and should be removed as soon as possible from this clause, nevertheless has now steered its way through the Committee, and on Report it comes to your Lordships' House with a central feature which is singled out. There are three "responsible persons"—because that is what the Bill calls them—who automatically make the union liable. They, perhaps, are the most important departure from the rules of common law, both in making the union liable and also in being able to act for the union on a repudiation or, as your Lordships will remember from the Committee stage, as regards the ghastly procedure of the repudiation of a repudiation which the Bill envisages as part of splitting up the union.
These three responsible persons I have found, in discussing the Bill with people, are sometimes seen in a way which is, with respect, erroneous. One of the participants in your Lordships' Committee at col. 231 referred to this situation as being one where:
The Bill … refers to whoever holds the authority, be it the principal executive committee, the president or the general secretary. I repeat that there are very few cases where it would be the president and only a certain number of cases where it will be the general secretary. In most cases it would be the principal executive committee".
Discussion of that matter, of which there was rather
a lot in Committee, is quite beside the point because it is irrelevant. The authority of the president and the authority of the general secretary and the authority of the principal executive committee, as the Bill stands, is wholly irrelevant.
The noble and learned Lord the Lord Advocate was kind enough to confirm in Committee that they were to be the people for whom, I think he said at one point, the union was to be automatically responsible. I refer your Lordships to col. 215 of Hansard of 13th July. He gave us the reason for that. He said:
The executive committee and the very top officials are regarded by most people as the 'voice of the union'".
This may be called, as it is in company law, the problem or the doctrine of organic liability or of the alter ego liability; that is to say, sometimes bodies are made liable for people not on the basis that they are agents acting within authority, but because the courts and the law see these people not as agents but as the organisation, as the company, as its alter ego, as a number of company law cases have said or, as Professor Gower has called it, the organic theory of liability, which is applied over a very narrow and sometimes strange area of company law.
§ The point about this clause is that it goes much, much further in imposing the acts of authorisation and endorsement of these three responsible persons—the president, the general secretary and principal executive committee—upon the union, no matter what, in terms of the rules or anything else. That goes a very long way beyond the company law doctrine. It is interesting how for many, many years, the doctrines especially of the Conservative Party and, indeed, some of the judiciary, have tried to get the trade unions into a posture of being incorporated and of being like companies, which manifestly they are not.
§ But when it comes to applying the alter ego doctrine, they do not recall the very recent remarks of the noble and learned Lord, Lord Diplock, who, in a leading case on this doctrine in 1972—the Tesco Supermarkets case—insisted, for companies, that if you look for the alter ego or the organic person, like the managing director who was going to make it liable under certain criminal statutes—and they were criminal statutes willy-nilly apart from any authority—then you must look first at the articles of association, and the equivalent of the articles of association are, of course, the rules of the union. This is where the Government are in a terrible plight. They cannot allow reference to the rules here. We saw this in Committee again and again, when my noble friend moved a series of amendments. They cannot allow reference to the rules, and union rules are either a consensual contract or they are nothing an analysis which is perhaps relevant to some of your Lordships' who, in other debates today, wish to have rules come in ab extra into the trade union rules. Consensual contractual rules are, of course, the fount of the authority of all these people.
§ One of the difficulties—and this goes to Amendments Nos. 43 and 46—is in relation to the national executive committee. I preface my remarks with the following comments because they are important in this respect. Parliament's overriding duty is to give to the courts intelligible legislation. Whatever other views are expressed in your Lordships' Chamber, that at least 579 I am sure would be common ground. When a court looks at this section how will it know whether the principal executive committee in subsection (3)(a) has acted as such? That is all it has to ask, because if it has done so and has authorised something, endorsed something or repudiated something, then of course the union is bound by it in every other juristic respect.
§ However, it may have a difficulty. Someone may say that there was not a proper quorum. The rules may say that there must be 10 and there were only three, or there may have been no notice of the meeting. One can think of more extravagant situations; for instance, there may be two factions—fortunately, it does not happen in the British trade union movement; at least I have never known a case of this type to happen—which met separately and afterwards claimed that they, separately and each, were the principal executive committee in proper session. It might even be based on a mistake. How does the court decide whether the section is satisfied? It must not look at the rules—that is the last thing that the clause will allow. So what does it do?
§ Amendments Nos. 43 and 46 are saying to the Government, "You must, surely, allow that the meeting of the national executive must be held and conducted in accordance with the rules. You may not like that phraseology, but surely something like that must be in". The other point goes to the other two people who are the organic figures for liability, whose act is, as it were, of a quality above that of an agent to make for "automatic liability"—in the noble and learned Lord's words—on the union.
§ I want to make sure, as this is perhaps the last time that this point can be raised in your Lordships' House, that the effect of our amendments is clear. If Amendments Nos. 43 to 47 were carried, we like at least to think that the appropriate change would cause the statutory code to be in a rather different form, one that we still would not like—as I will comment as I go through—but one that would have the following three features. First, the general secretary would remain as an organic alter ego of the union and anything the general secretary did would automatically bind the union in regard to authorisation or repudiation. We do not like that, but on a Report stage it would be silly to try to deprive the Government—anyway we would not even try to argue with the Government—of their basic tenet. But we do say that if a union is going to have an alter ego, by law—a doctrine which we regard as repugnant, but never mind—then it had better be the general secretary and then we will all know where we are. It would be silly to say that any union did not have someone equivalent to the general secretary. He usually is a principal executive officer, and he has to work with the national executive, and so if you want someone you had better have him. That would be the first point. The Government would, as it were, keep the court quite clear for their game on the first point of general secretary.
§ Secondly, as the clause provides, the national executive committee would be in the same position, except that the quality of its meetings would be judged according to the rules; in the sense of the first amendment, whether the meeting was held and conducted in accordance with the rules, which would obviously 580 be mainly procedural, but not entirely so, because obviously its composition ought to be according to the rules. I wonder whether the Government would in any way be disposed to contradict that.
§ The main change—and this is the third—concerns the president. According to our amendments, if the president is empowered by the rules to authorise, endorse or repudiate an action, then it would bind the union. In other words, we are taking the president back into a common law position. We suggest to the Government that that is probably a sensible third step to take. If the president is an important executive official of the union—and we can all think of unions where the president is an important and executive official and, of course, the rules will provide for the authority that he is to have—then no problem will arise.
§ If, however, as happens in some unions, the president is not in the nature of a primary executive official, then it is silly, we suggest, to put him in the same category as the general secretary. Indeed, it is worse than silly, because he and the general secretary may be saying different things and so you will have two organic figures saying opposed things, and the question is simply who repudiated whom last.
§ Repudiations of repudiations—if officials get on to bad terms—would seem quite absurd. I do not say that that is likely, but I say that for a clause to allow even the possibility is absurd. In most unions the president will be dealt with by the rules and surely it is better to leave it at that. In Committee, at column 238 the noble Earl, Lord Gowrie, suggested that if a president were too frolicsome or irresponsible the union would be able to remove him. But, of course, that misses the point, because by then the union would be bound by what he had done.
§ There is a final point which is extremely worrying about the clause as a whole which would only be mitigated by our amendments. It is one that has been put to the Government, to which the Government gave an answer which I hope they will expand. It is this. If a general secretary—and if I may I will take a general secretary because he is the one who will be left as the alter ego even under these amendments; but it applies even more strongly as the clause stands to the president, so we may take either—or if the president authorises an action which turns out after long legal argument to be an unlawful interference with contract—and that may take a long time but it may turn out that he got it wrong and therefore he has a tort—what are the consequences under the clause as it stands?
§ The first consequence—and, again, with respect this was not always kept in view by all of us in our discussions in Committee—is that the president is personally liable. The mere fact that you are the agent of another does not deprive you of liability for committing a tort. So the president is liable in damages. But as he is the president under the clause the union is liable, vicariously. It is liable. They both have to pay compensation. But what happens then? Suppose that someone in the union says, "The president was acting out of all order under the rules"—and union members feel rather strongly about their rules; it is a tradition in the trade union movement that they feel rather strongly about the rules. But then I have noticed that members of clubs tend to have the same feelings. It is a well attended meeting if there is a change of rules in any 581 organisation. So it is said: "We will sue the president and we will sue the union". Then the national executive composition changes and it says, "We will sue the president"; and someone says: "We will sue the union for allowing the president to do it".
I thought in Committee that this was surely some extravagant idea of mine that there could be double jeopardy here for the officer concerned. But when I read my Hansard in the days when events unhappily took me away from your Lordships' House last week—when I heard the noble and learned Lord calling, "Will ye no come back again?"—I found a very appropriate refrain in his own words at column 216 on 13th July. He said:
Our aim is simply to set out when someone damaged by unlawful action should be able to claim redress from the union concerned".
Then he went on:
It does not prevent unions from having their own different and separate rules about authority to call industrial action. Nor does it stop a union enforcing those rules against its members or officials who break them, or indeed a member or official enforcing the rules against the union in the High Court".
When I saw that I realised that my nightmare of double jeopardy was not a nightmare at all; it was reality. Here you have it all ways round: the union enforcing the rules against members and officials who have broken them, by a legal action if need be; a member or an official enforcing the rules against the union. So this same action which will, quite properly, give rise to tort liability on the shoulders of the president—and we think improperly in terms of the union—will then give rise to all sorts of cross-actions in terms of internal relationships.
§ Our amendments do not get rid of that unhappy state of affairs, but they confine the very possibility of it to the position of the general secretary. It is in a sense that practical point which would be my main plea to the Government, taking their own statement of what the effect of this clause will be—namely, that it makes the union automatically liable for certain persons, but that the union rules are still valid and enforceable. I take the point that they do not wish to interfere with the union's own internal affairs on this matter. Nevertheless, the consequence of those two propositions is that the officials who are the alter ego organic people in the union can well give rise easily and quickly to double jeopardy or, indeed, to a number of cross-actions, which is absurd. Therefore, the number of people who are in that position should be reduced. The effect of our amendments would be that the general secretary alone would remain within the Government's desired capacity. The president would be out of it and, in a sense, the national executive committee would be in the middle, where at least the proper comportment and conduct of its meetings would be judged according to the rules.
§ This has been a more lengthy contribution than I would have wished to make, but it has dealt with Amendments Nos. 43 and 46, and Nos. 44, 45 and 47. I would be very unhappy if the Government said that they thought none of that had any merit at all in respect of the practical workings of their own legal and industrial relations proposals. I beg to move.582
§ 6.56 p.m.
§ Lord Howie of Troon
My Lords, I hope that the Government will pay heed to the remarks of my noble friend in moving Amendments Nos. 44, 45 and 47, because there is no doubt at all that my noble friend is right and there is no doubt at all that the Government would be sensible if they adhered to his view and accepted these amendments.
I shall take no great time to deal with this because we discussed it earlier in Committee and noble Lords who were present then will remember that I confessed that I happened to be the honorary president of a trade union, and as such no more than an ornament to that union. I have no powers and I do not wish to have any powers. I am quite happy that the powers in that union should reside in its general secretary, in its executive committee and in its members.
In so far as they regard me as ornamental, I am delighted and happy to enjoy that position. But it happens that from time to time as an ornament I have to impart wisdom. Noble Lords who hear me from time to time will know that my wisdom is a variable feast—I enjoy it, but they may not. Under the terms of the Bill as it stands, in my ornamental capacity I can do harm to the union. I can do this unwittingly; I can do it by mistake; I can do it out of sheer stupidity; or I can do it in a sudden upsurge of malignity, if such a thing ever happened to me. But I can harm the union under the terms of the Bill, although I have no powers. That is surely wrong.
If a president of a union has powers, it is right that he should in some way be liable. If he has no powers, it is absurd that the Bill should be so worded that he can accidentally be liable; the more so if the contribution of my noble friend Lord Wedderburn is correct and not only can the honorary president unwittingly put the union into trouble but he himself can be sued by the members. I should hate to put the union into trouble, but I should hate a great deal more to be sued by them, especially if they won, which would seem extremely likely. The Bill is wrong; the Bill is mistaken. My noble friend is right and the Government ought to accept Amendments Nos. 44, 45 and 47, and I hope they will do so.
§ Lord Mackay of Clashfern
My Lords, these amendments bring us again to the question of when a trade union should be held liable for the unlawful acts of its officials and officers. It is a question which, as many noble Lords remember, caused considerable difficulty between 1971 and 1974. The purpose of subsections (3) to (8) of Clause 14 is to reduce the chances of that difficulty arising again, by providing clear and realistic guidance on the question of trade union liability.
We debated these rules of liability at some length during the Committee stage. But, at the risk of repeating myself, it is I think important briefly to remind your Lordships' House how the rules are constructed. The basic rules on liability are contained in subsection (3). This lists those people and committees who make the union liable if they authorise or endorse unlawful industrial action. These people and committees fall into two groups. First, in paragraphs (a) to (c) there are those whose actions automatically and irrevocably commit the union; that is to say, in so far as they are exercising the official capacity there described. These 583 are the principal executive committee; any person or committee empowered to call industrial action by the rules of the union; and the president or the general secretary.
Secondly, in paragraphs (d) and (e) there are those whose actions commit the union unless the union has taken action to prevent this under the provisions of subsection (4). These are, in paragraph (d), employed officials of the unions who hold middle and junior rank in the union; and, in paragraph (e), the committees to which such officials regularly report.
Subsection (4) contains the provisions which allow unions to avoid liability for the actions of junior and middle-ranking officials, and their committees. Paragraph (a) says the union is not liable for the actions of any such people or committees if the union rules specifically prevent them from calling industrial action. Paragraph (b) says a union is not to be held liable for the actions of these officials and committees if their authorisation or endorsements of the unlawful action are repudiated at a more senior level. Subsection (5) and (6) provide that any repudiation must be genuine if the union is to escape liability. Subsection (5) provides that the repudiation must be in writing and issued as quickly as is reasonably practicable. Subsection (6) provides that the repudiation does not stand if it is treated by the senior officials or the principal executive committee simply as a "paper" exercise to avoid liability and is ignored once issued. Before I go on, I want to point out that, so far as I know, there is no provision in this clause that says the union rules have to be ignored, and therefore that part of the noble Lord's exposition, renewed by the time that he has been away from us, does not appear to me to be well founded. It is not the only part, but that part particularly seems clearly not to be well founded.
The rules that I have set out, in the Government's view, accord with industrial reality. They are clear rules, and the Government believe that they will help all those involved, including the courts, to decide when a union is to be held liable for unlawful industrial action. We have been constantly told by noble Lords that they are unrealistic and do not accord with reality. Perhaps I could give three reasons why we do not accept that view. First, the union is only to be held liable for the actions of those employed officials and committees which are fully within the official structure of the trade union: the union is not presumed liable for unlawful action by lay officials, like shop stewards, or by its members, unless someone within the official union hierarchy has authorised or endorsed their action or unless the union's own rules give these lay officials specific powers to authorise industrial action; secondly, the clause leaves the final say about union liability with the national executive of the union and its most senior officials by giving them the authority to repudiate the action of lower ranking committees and officials; and thirdly the clause leaves scope for the union to specify in its own rules who should have the authority to call industrial action. Under subsection (3) the union is always to be presumed liable for action authorised by its executive committee, or its president, or general secretary.
Noble Lords have said that they find this rather 584 difficult, but I suspect that the majority of people in this country would find it extraordinary if the union was not held liable for unlawful acts of its executive committee or its most senior officials. In the real world, the executive committee and the general secretary and president are the voice of the union. When the noble Lord, Lord Howie of Troon, speaks out for his union as president to the world, then they take it that the union is speaking, and as the voice of the union, they must expect their words to be taken seriously. If they authorise or endorse unlawful action, then it is surely right that the union should be held liable.
Let me turn to the specific amendments. I understood the noble Lord to speak to 43 and 46 together, and then to the other group, 44, 45 and 47. May I turn to 43 and 46. The proposition in Amendments 43 and 46 is that the action of the principle executive committee of the union will only be regarded as committing the union if they have been taken "at a meeting held and conducted in accordance with the rules". This means that if the principal executive committee is improperly constituted or its meetings improperly conducted, then the union itself will not be liable.
These cases are not very likely to arise in practice because most union executives do not act outside their rules. But if they do, it will be for the courts to decide in such cases whether the body or committee which is claiming to act as the principal executive committee is in fact doing so. It must be a question of looking at the whole circumstances, including the rules, to decide whether or not the body in question is in fact the body which fulfils the statutory definition. If there has been a serious breach of the rules—for example, a failure to reach the quorum—one would expect the courts to find that the act had not been authorised by the "principal executive committee" and that the union was not liable. If, on the other hand, the whole executive was present and there had been only some minor procedural irregularity, the courts might regard that authorisation or endorsement as valid on behalf of the principal executive committee.
In practice I doubt whether the noble Lords' amendment would make much difference to how the courts approached these questions. But there is just the possibility that it would enable unions to escape liability in cases where there had been only some very minor unimportant breach of the rules. That would clearly be unacceptable and could open up a loophole in the rules of liability which could be exploited. But, my Lords, I must say that it is in our view extremely improbable that such questions would arise in any serious way. In most cases there will be no doubt that the executive properly constituted under the rules has held a properly conducted meeting. If at that meeting it has authorised or endorsed unlawful industrial action, then the union will be held liable.
Let me turn finally to the Amendments Nos. 44, 45 and 47 to these provisions which are concerned with the role of the union president. This is particularly Lord Howie of Troon's area. The purpose of these amendments is to challenge the principle in the clause, which I have described, that the union shall always be held liable for unlawful action authorised or endorsed by the President of the union. It has been suggested 585 that this is quite unrealistic because some union presidencies are honorary or "figurehead" posts. We had this debate at Committee stage and I must confess that we on these Benches still do not understand quite what all the fuss is about on this aspect. If the union president is truly a "figurehead", then it is most unlikely that he will ever be in a position to authorise or endorse unlawful industrial action. So the question of whether he has committed the union will never arise. If, however, he decides to become more actively involved in a case of industrial action and used the office of president to encourage or support unlawful behaviour, then is it surely right that the union, having given him that position, should be liable. In that case, he will no longer be the "figurehead" or honorary president, or even an ornament. He may be an ornament from the union's point of view, but he will be a working ornament and therefore surely it is right that the working ornament should carry with him responsibility on the union's behalf.
§ Lord Davies of Leek
My Lords, would the noble and learned Lord give way? I am old enough to remember when the right honourable Winston Churchill was made an honorary member of the bricklayers' union. There is no doubt, because of his talent, that he ultimately would have been president. He stayed in it all his life. Would they have brought him before the Bench for responsibility when they refused to rebuild a new Houses of Parliament, for instance? What do you do in cases like that? I do not think it would hurt to accept these amendments. I do not know why we are making a fuss about it. The argument that has been made on this side is obvious and common sense.
§ Lord Mackay of Clashfern
My Lords, what is common sense is sometimes a difficult question. I am not sure that the reference to Sir Winston Churchill particularly carries forward the argument. I am sure if he had got to the presidency of the bricklayers' union, he would have conducted the affairs of the union with great propriety.
§ Lord Mackay of Clashfern
My Lords, he would certainly have been an ornament and if he had worked, as the noble Baroness says, he would have been a working ornament, but he would have worked so well that the question of liability would not have arisen. Perhaps I could bring this to an end by saying that in our view the rules which have been set out are plain, accord with industrial reality, and I do not feel able to accept the amendment.
§ Lord Renton
My Lords, having listened to both the noble Lord, Lord Wedderburn, and to my noble and learned friend, I think that my noble and learned friend has put foward an overwhelming case. The Bill contains a fair and, in my opinion, successful attempt to describe vicarious liability as applied to the circumstances of a trade union.
Amendment No. 43 would be a serious limitation upon the liability of the union for its officials. Indeed, so much so that one would have to describe it as a wrecking amendment, which is perhaps what it is intended to be. As to the other point about the union rules which, under 586 the other amendments, affect mainly the position of the president, surely an active president who takes upon himself to authorise action which turns out to be tortious should not be protected by the rules. As for the rules, the Government have borne in mind that a person who is authorised by the rules shall be brought within the scope of subsection (3)(b). It seems to me, as my noble and learned friend the Lord Advocate pointed out, that the Government have this right, des-spite the somewhat technical argument advanced by the noble Lord, Lord Wedderburn.
§ Lord Lloyd of Kilgerran
My Lords, I agree with the persuasive argument put forward by the noble and learned Lord the Minister particularly with regard to Amendments Nos. 43 and 46. He took the noble Lord, Lord Wedderburn, to task over the fact that the Government were not ignoring—to use his words—the union rules. But as for Amendments Nos. 44 and possibly 45 and 47, but certainly 44, I wondered whether the noble and learned Lord had directed his attention to the phrase in Amendment No. 44:where he is so empowered by the rules to authorise or, as the case may be, to endorse acts of the kind in question.If the argument of the Minister—and, indeed, that of the noble Lord, Lord Renton—is to be pursued further, it seems that there is a tendency here by the Government to ignore union rules by not including that kind of phrase, so I wonder whether Amendment No. 44 is not the kind of proposal which the noble and learned Lord, with his usual courtesy, would care to think about again before making a decision on it.
§ Lord Mackay of Clashfern
My Lords, I must tell the noble Lord, Lord Lloyd, that I was dealing in my earlier remarks with a remark which the noble Lord, Lord Wedderburn, made that we had in some way provided that the union rules were to be ignored, and it was that which I disputed. So far as I know, there is no provision in the clause which so provides. As I said earlier, obviously we consider all that is said, but I have not seen any occasion to make me wish to modify my position in the light of what I have so far heard.
§ Lord Wedderburn of Charlton
My Lords, this is the time, the debate having become one between lawyers, when it is better to end it. The refrain, "Don't ask me what my law means; leave it to the courts to decide", is the refrain of the bad lawgiver, from Hammurabi and before. That is what we have had today. This is a perfectly reasonable series of amendments but the Government are determined to leave the clause not only unjust, which it is, but also unclear, and we shall therefore press the amendment.
§ 7.13 p.m.
§ On Question, Whether the amendment (No. 43) shall be agreed to?
§ Their Lordships divided: Contents, 50; Not-Contents, 92.587
|DIVISION NO. 2|
|Allen of Fallowfield, L.||Bishopston, L.|
|Ardwick, L.||Blease, L.|
|Balogh, L.||Blyton, L.|
|Beswick, L.||Boston of Faversham, L.|
|Collison, L.||McCarthy, L.|
|David, B.||Milner of Leeds, L.|
|Davies of Leek, L.||Mishcon, L.|
|Elwyn-Jones, L.||Oram, L.|
|Elystan-Morgan, L.||Peart, L.|
|Ewart-Biggs, B.||Phillips, B.|
|Gaitskell, B.||Pitt of Hampstead, L.|
|Glenamara, L.||Ponsonby of Shulbrede, L.—[Teller.]|
|Hatch of Lusby, L.||Rea, L.|
|Hirshfield, L.||Shackleton, L.|
|Houghton of Sowerby, L.||Stewart of Alvechurch, B.|
|Howie of Troon, L.||Stewart of Fulham, L.|
|Jacques, L.||Stone, L.|
|Jeger, B.||Strabolgi, L.|
|Jenkins of Putney, L.||Taylor of Mansfield, L.|
|John-Mackie, L.||Underhill, L.|
|Kagan, L.||Wallace of Coslany, L.|
|Llewelyn-Davies of Hastoe, B.—[Teller.]||Wedderburn of Charlton, L.|
|Longford, E.||White, B.|
|Lovell-Davis, L.||Wynne-Jones, L.|
|Airedale, L.||Kilmarnock, L.|
|Airey of Abingdon, B.||Kimberley, E.|
|Allerton, L.||Lane-Fox, B.|
|Atholl, D.||Lindsey and Abingdon, E.|
|Auckland, L.||Lloyd of Kilgerran, L.|
|Avon, E.||Long, V.|
|Aylestone, L.||Lyell, L.|
|Banks, L.||McFadzean, L.|
|Belhaven and Stenton, L.||Mackay of Clashfern, L.|
|Bellwin, L.||Macleod of Borve, B.|
|Beloff, L.||Marley, L.|
|Belstead, L.||Marshall of Leeds, L.|
|Bessborough, E.||Massereene and Ferrard, V.|
|Boardman, L.||Milverton, L.|
|Boyd-Carpenter, L.||Mottistone, L.|
|Campbell of Alloway, L.||Murton of Lindisfarne, L.|
|Cathcart, E.||Newall, L.|
|Chelwood, L.||Nugent of Guildford, L.|
|Cockfield, L.||O'Neill of the Maine, L.|
|Colville of Culross, V.||Orkney, E.|
|Cork and Orrery, E.||Orr-Ewing, L.|
|Craigavon, V.||Penrhyn, L.|
|Crathorne, L.||Plummer of St. Marylebone, L.|
|De La Warr, E.||Radnor, E.|
|Denham, L.—[Teller.]||Rankeillour, L.|
|Diamond, L.||Reigate, L.|
|Drumalbyn, L.||Renton, L.|
|Ellenborough, L.||Rochester, L.|
|Elphinstone, L.||Romney, E.|
|Elton, L.||Sandford, L.|
|Fairfax of Cameron, L.||Sandys, L.—[Teller.]|
|Faithfull, B.||Seear, B.|
|Ferrers, E.||Skelmersdale, L.|
|Fortescue, E.||Stodart of Leaston, L.|
|Fraser of Kilmorack, L.||Tordoff, L.|
|Gardner of Parkes, B.||Trumpington, B.|
|Glanusk, L.||Vaux of Harrowden, L.|
|Glenarthur, L.||Vickers, B.|
|Grimston of Westbury, L.||Vivian, L.|
|Hampton, L.||Wade, L.|
|Harris of Greenwich, L.||Whaddon, L.|
|Harris of High Cross, L.||Wigoder, L.|
|Henley, L.||Wilson of Langside, L.|
|Hornsby-Smith, B.||Wynford, L.|
|Inglewood, L.||Young, B.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 7.22 p.m.
§ Lord Denham
My Lords, I beg to move that further consideration on Report be now adjourned until five minutes past eight.
§ Moved accordingly, and, on Question, Motion agreed to.
§ [The Sitting was suspended from 7.22 until 8.5 p.m.]
§ [Amendments Nos. 44 to 47 not moved.]
Lord Wedderburn of Charlton moved Amendment No. 48:
Page 19, line 5, after ("provisions") insert ("expressly").
§ The noble Lord said: My Lords, the next amendment, Amendment No. 48, which falls outside the scope of the discussion that we had, relates to, as it were, the other half of the structure which the Government aim to establish within their statutory code of agency to apply to the industrial torts in the case of trade union liability in tort. In the other paragraphs of Clause 14(3) persons are referred to as responsible persons, and their ability to commit the union in their authorisations, endorsements or repudiations is related to the rules; that is, the officials, other than the president or general secretary (it may be at any level), officials who are employed officials other than the general secretary and the president, and committees of the union to whom such employed officials presumably regularly report.
§ There is also the remark made by the noble and learned Lord in the debate which your Lordships had on the previous group of amendments, that, even in respect of those responsible persons who commit the union automatically, the clause, as the noble and learned Lord said, does not say that the rules are to be ignored. So even there, although in a somewhat uncertain manner, the rules may be important; but that will be left for the courts to work out.
At any rate, in regard to these other responsible persons, other than the three organic figures of the general secretary, the president and the national executive, the rules are important in determining their authority. That means that the position is very similar at first sight to the position under the common law: but only at first sight, because when we come to look at the definition of the rules in subsection (7) we find that the definition states—and I quote:
'rules' means the written rules of the union"—
and one might expect it to stop there, but it goes on—
and any other written provisions forming part of the contract between a member and the other members";
and it then adds a phrase about the special register bodies which is peculiar to them and does not change the sense.
So we have what the union members would expect—namely, the written rules of the union—and then we have,
any other written provisions forming part of the contract between a member and the other members".
Our amendment, No. 48, would not try to get rid of the latter part of the formula, although we did adumbrate that in Committee, but it would insert a very important word—namely, the word "expressly"—so that it would read,
any other written provisions expressly forming part of the contract".
§ My Lords, we move this amendment for two reasons. The first is because we are not sure what these other written provisions are, and throughout the entire course of the Bill we have never had an explanation from the 589 Government as to what they think they are. It was suggested in another place on one occasion that they include the shop stewards' credientals, but it does not seem to be very clear whether the Government mean that. If that is what is meant, then presumably all that the union has to do with such documents is to invent another rubber stamp. Your Lordships will remember the "TINALEA" clause on a rubber stamp in 1972—"This is not a legally enforceable collective agreement". In this case it would be the "NPCM" stamp, saying, "This is not part of the contract of membership". Presumably the union could do that. But it is a curious thing for the Government to include if that is the only consequence. If it is not meant to relate to such documents—which would go rather outside the present ambit of the contract of membership which is usually understood even in the light of custom and practice (and even in the light of custom and practice a shop steward's credentials in most unions are not thought of as part of the contract of membership of the union)—if it is not meant to go in for that somewhat pointless exercise, it might be meant to deal with documents which are, as it were, collateral to the rule book; although it is difficult for my noble friends and I to imagine what these could be. But if it is mean to relate to such documents, then we say that the word "expressly" would help in a practical way because if another written provision expressly is related to the rule book in such a way that it is clearly meant to be part of the contract of membership, then that is all very well.
§ But the noble and learned Lord will know as well as I, if not better, that there is nothing worse than having a dispute which turns itself into a question of whether a particular document is, by inference, part of a contract or where there is no clear reference between it and the contractual document; that is, the document that is accepted as contractual. If, therefore, we begin with the rule book and say that any other collateral documents which are expressly related to it are plainly part of the contract, then—although we are not sure what the Government's objective is—presumably that would be enough to satisfy it.
§ If, on the other hand, it is more than that, then we say that this is very unfair, and we say that for this reason: that the Government have put their position in relation to authority, as we understand it—and I do not have a quotation to provide to the noble and learned Lord but I do not think it will be unfair if I put it to him in this form—so that the union is to be liable in two rather different ways, one way for the automatic liability of the president, general sercetary and national executive (the organic liability as I put it) and the other way vicariously where the rules of the Bill are pretty much the rules of common law; that is, in regard to these other officials whom I have mentioned.
§ If, however, authority is measured by the rule book plus custom and practice (because that is the common law) but then by some other documents that the common law would not necessarily take the same view of, we have a statutory definition of rules and the common law's definition of the rules of the union is not the definition of this Bill because the context of forming part of the contract here might not be exactly the same as that which a common law court would undertake. 590 That is to say, if I may give an example, the place of custom and practice appears, by inference, not to be the same here as it is in the common law test, as in the Heaton case of 1973.
§ These are fine points but they matter very much to the trade union which is now being subjected to tort liability. Therefore, I say to the noble and learned Lord: would it not be enough for the Government's purpose, if they are not to be unreasonable on this, to insert a provision relating to the rules of the union, of the rule book, which every member would expect, plus, for this purpose, other written provisions expressly forming part of the contract between a member and other members. Then, I think, the structure in the clause of this end of the liability could be said to be reasonably parallel to that of the common law. I beg to move.
§ Lord Mackay of Clashfern
My Lords, this amendment seeks to change the provision in subsection (7) of Clause 14 which is designed to clarify exactly what is to be regarded as the union's rules for the purpose of deciding union liability for the purpose of applying the provisions of Clause 4(a). At present subsection (7) makes it clear that the courts need only look at written provisions and need not concern themselves with questions of custom and practice which cause difficulty under the 1971 Act. The passage also provides that the rules include any other written provisions forming part of the contract between a member and other members. It is this passage which is causing concern and perhaps I should try to explain its purpose as I understand it.
It is there simply to put beyond doubt that the courts are to take account of written rules which are known by another name; for example, the union constitution. It will ensure that the courts will take account of any other written rule made in addition to the main rules but which are still binding on the members, such as by-laws or branch rules made under powers given in the main rule book. But it certainly does not cover every piece of paper produced by a union; for example, circulars or notices giving advice would not be covered by the definition.
The amendment seeks to qualify this passage by inserting the word "expressly" between "provisions" and "forming". Thus it would mean that branch rules and other written provisions intended to be covered by this section would be taken into account only if they contained a specific statement to the effect that they were part of the contract between a member and other members. And even if the other body of rules contained an express power to make further written provisions, this particular amendment would not be met because this amendment requires that these other written provisions themselves should expressly form part of the contract.
We consider that this is much too restrictive. It will mean, for example, that rules of a branch or a section are not to be regarded as written rules of the union simply because they do not say "expressly" that they form part of the union's rules. I hope that the noble Lord will agree that that would be pretty absurd and that he will feel able not to press this particular amendment.
§ Lord Wedderburn of Charlton
My Lords, I think this is not an amendment that it would be right to press but, on the other hand, my noble friends and I are somewhat puzzled by the noble and learned Lord's response; and it is right that I should say why. First, we are interested that he did not mention the shop steward's handbook and that type of document. We are very interested in the concept of branch rules, branch by-laws, branch powers, chapel rules, this kind of rule made under a power which stems from the union rule book—for that is where its constitution is—and that that is what is intended to be brought in. One might have thought that it would be sensible to bring that in expressly, of course, as written provisions of rules made under or by reason of the main rule book—because that would be much clearer, if that is all that is intended.
The noble and learned Lord says that I am in a difficulty because my word "expressly" would not catch all of them. I suppose that that is right in a way; but he is in an equal difficulty because it is perfectly open for the union branch and chapel to make rules not contractually binding with authority from the union when, of course, they would not have fallen within his definition. No doubt the unions will turn their minds to problems of this kind in due course We shall leave the amendment on the table where it lies.
§ On Question, amendment negatived.
§ Clause 15 [Limit on damages awarded against trade unions in actions in tort]:
§ 8.19 p.m.
Lord Wedderburn of Charlton moved Amendment No. 49:
Page 19, line 23, after ("duty") insert ("otherwise than on a ground specified in section 13(1) of the 1974 Act or in respect of an agreement or combination within section 14(2)(b) above").
§ The noble Lord said: My Lords, Amendment No. 49 takes us to Clause 15 and is again—and I think that this is perhaps an inevitable feature in this part of the Bill—a matter which is at once perhaps legally a little complex and of great practical significance. Indeed, what could be more significant at this stage of the discussion of the Bill, having subjected trade unions to liability in tort for the first time except for three slightly curious years since 1906, than to consider for how much they can be made liable in court under these heads of liability and the special rules of agency which have now been established?
§ The limits on the liability are set in Clause 15 by reference to the numbers in the union and those limits, up to a quarter of a million pounds, we discussed in Committee. We also made reference in Committee to the situation of the unlimited liability which arises under Clause 15 (2); and it is to the, if you like, exceptional case (or so it is presented) of unlimited liability in tort to which this amendment refers. That is, the Government make the financial limits apply to all liabilities except for those set out in subsection (2), and in paragraph (a) of subsection (2) there are those torts that cause personal injury, and there was some discussion of that in Committee. We are not concerned with that in this amendment.592
However, the second aspect worried my noble friends and some other noble Lords and noble Baronesses in Committee. This is paragraph (b) in subsection (2) which reads:
…for breach of duty in connection with the ownership, occupation, possession, control or use of property (whether real or personal or, in Scotland, heritable or moveable)",
there is no limit on liability. Because all real and personal (I take it in Scotland heritable or moveable) property includes all property from rooftops to ballpoint pens; from printing processes to cars that carry members or officials on union business—certainly in industrial affairs—a problem obviously arises. This is where we left the matter in Committee.
§ In many industrial disputes where the Government are saying they want the liability of the union to be limited under the rest of Clause 15, property will be used, which is the property of the union. Paragraph (b) is without limit in the nature of the duty that is expressed. It applies to all civil liability in tort. One of those breaches of duty may relate to the control, possession or in particular the use of property.
§ I shall not read the passages, but in columns 258 to 260 of Hansard for 13th July the noble and learned Lord engaged in discussions with myself, my noble friend Lord Davies of Leek and the noble Baroness, Lady Seear, on the problems that arose. The noble Baroness put it to him that one might envisage a lot of actions in connection with a trade dispute in which it could be made out that questions affecting property had arisen and she asked whether it was right that there should be no limit for damages in that case. The noble Lord, in the course of his reply, said—I do not wish to read it all but I do not want to misrepresent him in any way—at col. 258 of Hansard:
I think it likely that the legislative history of this provision would be relevant in its construction. Therefore, it is of some importance that we use the same phraseology as was used in the previous Section 14(2). I acknowledge that the argument is more narrow within the trade dispute area, but it seems to us to be a reasonable argument, even in that area, to provide no limit where the tort is the same tort, by definition, as the one which presently is not subject to a limit outside a trade dispute".
§ That refers to the fact that this same formula was used in the legislation which is now being repealed to provide for liability in a union (without limit of damages it is true) in the law of tort in respect of torts that arose within the same formula of the words in Clause 15(2). Of course, that formula was used for a very different purpose. Albeit that the legislative history might be looked at, the plain matter is that in the previous legislation the purpose of the phraseology was rather different from the phraseology here and the effect of it would be rather different. It does not alter the simple point which my noble friends and I and the noble Baroness, Lady Seear, put to the Minister—it still remains the case—that is is beyond the peradventure of doubt that some breach of duty would be connected with the use of union property in some types of industrial action liability.
It is for that very simple reason that we have put down this amendment. We have dropped the point on personal injuries. The noble and learned Lord I thought—with very great respect—out-argued us on that point in Committee. On personal injury you really cannot do it in the same way. On the use of
property, we say this. Unless you exclude the industrial tort grants which in this case we have drafted as those grounds within Section 13(1) of the 1974 Act and combinations within Section 14(2)(b)—it is as broad as it is long as as the Government's formula, they can have their own if they do not like ours—or alternatively put in:
use of property causing breach of duty or in connection with breach of duty in industrial action",
that causes much greater difficulties of definition. One way or the other, not to put this in is unfair.
§ To sum it up in a phrase, the rest of Section 15 appears to offer the trade union movement a limit on damages. If Clause 15(2)(b) stays as it is, that offer will be a false offer in quite a large number of cases, a number of cases chosen almost by chance in the facts that arise in a court, if the matter goes into court, and we have to assume that it does for our argument, because in those cases use of property would be involved and the limit and liability would disappear overnight. I hope that the noble and learned Lord—suitably refreshed as he is—will be able to look favourably on this amendment. I beg to move.
§ Lord Mackay of Clashfern
My Lords, the noble Lord has explained very plainly the problem as he sees it in this set of provisions. I do not need to go into the full background. As the noble Lord explained, while the exemptions in the 1974 Act apply only where there is no lawful trade dispute, the exemptions in this clause apply whether or not there is a trade dispute. This is because we are taking this opportunity to correct what we regard as an anomaly whereby cases of this sort are treated differently depending on whether there is or is not a trade dispute.
The noble Lord, Lord Wedderburn, argued in Committee stage, and has done so again today, that in correcting this anomaly we have widened the exemptions in subsection (2) to such an extent that it could catch much "normal" industrial action. I have listened carefully to this argument on both occasions, but I have to say that so far I am still unconvinced that there is a problem. The noble Lord is particularly concerned with paragraph (b) of subsection (2), which is about breaches of duty in connection with the ownership, occupation, possession, control or use of property. As I have said, a provision of this type has existed since 1906 and its purpose has always been to cover cases such as nuisance by unions as landowners or occupiers; or negligence cases involving union vehicles or property.
The noble Lord, Lord Wedderburn, is specifically concerned that paragraph (b) will cover cases involving the "economic torts" if union property is involved at any stage. It is these cases to which the amendment seeks to apply the limits on damages.
The example has been taken of the use of letter-headed union paper as coming within subsection (2)(b). It seems to me this is a bit farfetched. But, even more, if it were true that such cases came within this subsection they would also come within Section 14(2) of the 1974 Act. This would mean that unions are liable at present in their own name for any inducements to break contracts where there is their lettered paper involved and there is no lawful trade dispute. If Lord Wedderburn's argument is correct, then any union which issued circulars 594 exhorting members to participate in the TUC's so called "day of action" in 1980—which was not a lawful trade dispute—had no immunity. That seems to me to be a fairly remarkable reading of the law. I am not sure whether had the argument arisen in that particular context and the noble Lord was in a position of defending one of the unions involved that he would have the same argument as he had tonight.
The Government, therefore, feel that this amendment is unnecessary, But it is also in some respects positively undesirable. The amendment seeks to apply limits on the damages which may be awarded in cases of inducement to break contracts where union property is involved. Since the unions—like other people—will continue to have immunity for inducements to break contracts where there is a lawful trade dispute, the amendment will primarily affect cases where there is no lawful trade dispute. But in such cases unions have never had immunity and there has never been any limit to damages which those who suffer can claim. Thus the amendment would in some cases put limits on people's ability to recover their loss in full for the first time in legal history. This is counter to the Government's aim in bringing the trade unions within the normal rule of law and surely indicates fairly strongly why we cannot accept this amendment.
§ Lord Wedderburn of Charlton
My Lords, I hesitated to give all the possible examples that could arise in this connection, but they were canvassed in Committee, it is true. The noble and learned Lord will know as well as I do that Section 14(2) of the 1974 Act as it now is (it was Section 4(2) of the 1906 Act in a different form) has never been tested in the courts except in a number of Irish cases. He may well be right that were I briefed in such a case I might not make the same argument that I am making tonight because I would not be writing my own brief. But I am writing my own brief tonight and what I am paid to do as an advocate in other circumstances might be different.
I am not at all convinced. I accept that there are odd historical anomalies which can go either way but I think the justice of the case is not to go his way and the fact is that it was never litigated on under the 1906 Act or the 1974 Act except in two or three Irish cases which I hesitated even to bring into the building, let alone into your Lordships' House. I do not have them with me, but they did have some interesting discussions on this point and the noble and learned Lord will know that the books have discussed for many years whether union liability might arise in tort in the sort of circumstances he described. So it is not such a clear position as he suggests, and the logic of the Government's own Bill, one would have thought, would be to provide a limit in respect of industrial torts. After all, elsewhere they have it their way by a definition of industrial tort. When it comes to the statutory code of conduct and the statutory code of agency, they say, "If there is an industrial tort—not a trade dispute or anything like that—we have got you under the statutory code of agency." Then we say "Right: then test the limit on damages." They say "But we could not possibly do that because it would not be according to the rule of law." That is not really a very consistent attitude on the Government's part.
595 It is rather important that these amendments should remain on the record. I am genuinely sorry that they have not received greater support but I think when your Lordships read the matter in Hansard you will see this is not a matter in which the Government are standing either consistently or credibly.
§ On Question, amendment negatived.
§ The Deputy Speaker (Earl Cathcart)
In calling the next amendment, No. 50, I should point out that in the context of paragraph (4) the word "compunded" in the third line on the Marshalled List should have been "comprised".
§ 8.30 p.m.
Lord Wedderburn of Charlton moved Amendment No. 50:
Page 21, line 10, at end insert—
("(4) Where proceedings in tort brought against a trade union fall within section 14(2) above, the provisions of this section shall apply to property which is comprised in a fund to which subsection (5) applies as if it were a provident benefit fund.
(5) This subsection applies to any fund in respect of which expenditure is (and was at the time when the act in respect of which proceedings are brought was done) subject to rules of the union which prevent property comprised in the fund from being used for financing strikes or other industrial action.").
§ The noble Lord said: With Clause 16 we deal with the liability of trade unions in damages and to injunctions in tort. The problem now is in respect of funds of the union against which the award of damages can be executed or enforced. At first sight this clause looks duly reasonable. Its most important feature is that the political fund of the union, if it falls within the definition in subsection (3) as set out, is not available for the award of damages, costs or expenses and the provident benefits fund is in a similar position under subsections (2) and (3).
The amendment we have put forward relates more to the provident benefits fund than to the political fund, and it arises directly out of our discussions in Committee, where we proposed that the definition of "provident benefits funds" and "provident benefits" should be changed from those that appear in the Bill. Provident benefits funds in subsection (3) is stated to mean "a separate fund maintained in accordance with the rules of the union for the purpose only of providing provident benefits". So everything depends on the definition of "provident benefits". Provident benefits are explained as:
includes any payment expressly authorised by the rules of the union which is made to a member during sickness or incapacity from personal injury or while out of work, to an aged member by way of superannuation, to a member who has met with an accident or who has lost his tools by fire or theft.
I need not read the rest. That was the same definition that was in the Trade Union Provident Funds Act of 1893 and which has passed into modern taxation law as the description of a provident benefit. It is quite true the Government have set out the same set of words as has appeared from 1893 onwards, except that they have used the words "not that' provident means benefit'" as in the 1893 Act but the more modern tax Act formula of "'provident benefits'" includes any payment", and so on.
§ Our amendments in Committee in effect said to the 596 Government that this definition is old-fashioned because there are a lot of other matters which are important to union members in respect of which payments are made in different unions, and it is time to bring them up-to-date. I gave an example of someone who lost his tools by flood instead of fire or theft. My noble friend Lord Davies of Leek gave a better example when he talked of the loss of tools by the movement of earth or subsidence in the mining industry—very important in that industry.
§ In reply to that, the noble Earl, Lord Ferrers, made much of the fact that the definition, as he put it, was not an exhaustive list but began with the word, "includes". In other words, he suggested that "provident benefits", was just a description and that by using the word "includes" it meant that it was not an exhaustive list and it gave examples to which the court could add.
There are two points to make, which lead to the amendment. The noble Earl said at col. 272 on 14th July 1982, in relation to this formula beginning with the word, "including"—
I do not believe it has given rise to any problems in these eighty years or so and the Inland Revenue does not apply that passage as if it were an exhaustive list. I would have thought that the courts would adopt the same approach in any cases which may arise out of this legislation—that is the reason why the words are used as they are. I would have thought not being exhaustive or exclusive the words used are reasonable.
That cannot be so because the courts do not apply statutes in the way that the Revenue are able to apply them. Indeed the Revenue have even given a number of administrative concessions on the formula on provident benefits which the courts would not necessarily uphold. It is just not true that the formula has given rise to no difficulties for trade unions. Indeed, it was a major litigation and a large amount of "office law" involved with the National Union of Railwaymen in 1966 which went to the Divisional Court as The Queen v. Special Commissioners of Income Tax ex parte Time National Union of Railwaymen, where Lord Chief Justice Parker thought it was a very difficult question whether the definition was "exclusive"or"exhaustive". He left it open, as did the rest of the court, and it is not decided to this day. So if this goes on to the statute book as it is, it is a deliberate enactment of an obscurity, because the Lord Chief Justice has said it is obscure. Secondly, the Lord Chief Justice in the Divisional Court on the whole thought, although obiter in the case, that legal costs in claiming compensation for part of the members' injuries in that case probably would not fall within provident benefit payments. I do not know whether the Minister agrees with that but he is using the same formula, so presumably he has considered it.
§ We have not tried to knock all that out of the Bill this time or to change that. if the Government are wedded to the obscurities of 1893, we think it might be reasonable to add our amendment to the clause as it stands. That is a formula which suggests that where you have an industrial tort proceeding—because we thought in drawing up these amendments that the Government were especially concerned to enact special rules for the industrial torts as in Section 14(3); so we have said that where there are proceedings under Section 14(2) for industrial tort and where any property is comprised in a fund under our description then it should count as a provident benefit fund. Our sub- 597 section would apply that to funds in respect of which the expenditure could not be used for financing strikes or other industrial action.
§ I do not see how, from the Government's logic, they can have any objection to this, because it comprises two elements: it leaves the definition of "provident benefits", on which they seem not to be open to persuasion; but it adds that where there is a fund which is not technically a provident benefits fund under the old formula, but which fund is not available for use for financing industrial action, so that it is sealed off from industrial action, and where the liability alleged and found is an industrial tort, which is pre-eminently the central point of the Government's structure for industrial action, that fund shall not be available for the award of damages. I very much hope that the noble and learned Lord will, on these minor but very practical and important amendments, be able to take a favourable view of this one. My Lords, I beg to move.
§ Lord Mackay of Clashfern
My Lords, this amendment as the noble Lord explained, seeks to introduce a wider category of "protected property" from which no awards of damages, costs or expenses could be made in any proceedings involving the "industrial torts"—that is, those concerned with breach of contracts. This new category of "protected property" would cover any fund which the union rules prevented from being used to finance industrial action.
This amendment seeks to revive the method of defining "protected property", which was used in Sections 153 and 154 of the 1971 Act—the provisions in that Act which fulfilled the same basic purpose as this clause. Rather than specifying the union property which is to be given protection—at present in Clause 16; the political fund and the provident benefits fund—the amendment would give protection to any fund which the union's rules prevented from being used to finance industrial action.
The approach used in the 1971 Act was, of course, considered when this clause was drafted. But we decided against that method because, with the benefit of hindsight, and experience, we felt that it was not quite right. In particular, it would allow unions to set aside large proportions of their assets which could not be used to pay damages to those who suffered as a result of unlawful industrial action. While we have accepted the argument that some specific funds should be protected, it seems unreasonable to restrict the ability of those damaged to recover their loss to the extent proposed in this amendment. After all, the loss which is caused by industrial action is not necessarily directly related to the cost to the union of sustaining the action. When considering the 1971 approach, it is also worth remembering that it led many unions to get their own rules into a terrible tangle, and that it took primary legislation in the form of Section 20 of the 1974 Act to unravel the tangle.
Finally, this specific amendment would add an unnecessary degree of complication to the clause by introducing two concepts of "protected property" to cover different types of proceedings. I think the noble Lord recognised that. I am bound to say, with the greatest respect, that it is somewhat ironic that, having criticised some of the earlier clauses because we had 598 found it necessary to apply some of their provisions selectively to the industrial torts, the noble Lord himself should now put forward an amendment to our straightforward approach to introduce such a differentiation.
On the other matter that he raised, which is not directly related to the amendment, about whether or not the definition is inclusive, it certainly raises a question of some interest. The context in which the definition now appears will be slightly different from that in which it appeared in the NUR case, and it is, I think, flanked by two definitions which have the word "means" in them, whereas this definition in between has the word "includes". I must say I should have thought that was an indication that some closely related benefits, of a kind similar to those actually specified, might well be included. It gives some indication to the court of the difficulty of a fully exhaustive definition, whereas it gives a pretty clear indication of the types of item which should be exempt. I hope that, in the light of those considerations, the the noble Lord will feel able to withdraw this amendment.
§ Lord Wedderburn of Charlton
My Lords, the Government's logic is like the will o' the wisp. One adopts their marker for defining things, such as the industrial torts, and then we are criticised for adopting their marker. One says "Let's do it this way, which was done in 1971 and which would suit that marker" and they say, "No, we have learned a lot since then. That did not get enough money. Unions were allowed to defend their funds." This clause just shows that this Bill is worse than the Act of 1971.
I shall read with great interest the report of what the noble and learned Lord has just said, because people are looking for some reasonable way for unions not to defend their funds with unreasonableness. After all, this amendment says: Allow the union to defend its fund against liability from industrial action, when it cannot use the fund to support the industrial action, and that is rejected. It is a most extraordinary state of affairs. We shall not withdraw the amendment but will leave it on the table with your Lordships.
§ On Question, amendment negatived.
§ Clause 17 [Meaning of "trade dispute"]:
§ 8.46 p.m.
Lord Wedderburn of Charlton moved Amendment No. 51:
Page 21, line 17, at end insert ("or an associated employer of their employer").
§ The noble Lord said: My Lords, we now come to Clause 17. I almost said that it is the keystone of this part of the Bill, but, in a sense, it is half the keystone. Having made the unions liable in tort, the Government are then saying to them, "Of course, you will have the same trade dispute protections as the rest". But in Clause 17, as it now is, we find in one of the uglier corners of the Bill a redefinition of "trade dispute" in a way which, when taken together with the legislation of 1980—and that is a very important combination to keep in mind in relation to this clause—cuts industrial liberties not only of trade unions, but of every worker in Britain, in a way which is quite remarkable.599
§ This is a fundamental clause. I make no complaint of the fact that it was dealt with in Committee between 12.54 p.m. and 2.25 a.m., but that is a fact and it is one to be kept in mind on coming back to it on Report. My noble friends and I did not feel, as the noble Earl, Lord Gowrie, said at that time, that we had had a good run on the clause. There are three aspects of it on which there should be another run, and they are in the next three amendments, Nos. 51 to 53.
§ Amendment No. 51 relates to the parties who are the required parties to a trade dispute. I shall not bore your Lordships with a reading of the present law, which has been the formula for more than half a century, but the Government insist that the only people who can be the parties to a dispute which shall qualify as a trade dispute are workers and their employer. We have an amendment to add at the end, which does not challenge the formula in the way that might be the case were we to go back to the 1974 or 1906 formulas, or to anything like them, but which is one which, even at this stage, we think is a just amendment to make, within the logic of everything that the Government have argued so far.
§ An employer is not normally a human being, as we all know; it is normally a company, It is a person in law, but a person whose life, shape and character are formed by the controllers of the company, the finances and the resources. The controllers decide who employs the workers. It may be one company, or it may be four companies doing precisely the same thing as one company, with divisions. It may be that company A and company B are subsidiaries of company C, and that company D is an independent company. A myriad form of groups is possible, and everybody knows that company groups are the reality of life, not the isolated company. For all that trade union power, and the other beloved images of the media and of others, have managed to accomplish in our society, they have precious little influence over the decision; who shall, in law, be the employer of a particular worker? Such decisions are subject, in the minds of myself and of my noble friends, to very little accountability in our society. But so be it. It is a fact that the company structure for those workers who are in employment is not something which they control or influence through their unions or, for the most part, in any other way. When full employment has given way to 3 million unemployed, the wish to have a job would not make the most principled or legalistic worker question which particular company it was that he was being hired by.
§ So I say that to speak of "the employer" may be a mystification, and that it is important to recognise, as does our labour and employment law, that that is not a category with which one can be satisfied. I say "our labour and employment law" because this is an all-party matter. The history, going back to 1963, is that "associated employer" has been defined in essentially the same terms, with minor modifications, since 1963 in a variety of Acts of both Administrations and that it has been brought into the employment law of our country for precisely that reason. I should justify that statement by saying that the Contract of Employment Act 1963, of a Conservative Government, the Redundancy Payments Act 1965, of a Labour Government but very much a bipartisan measure in many ways, the 600 Contract of Employment Act 1972, of a Conservative Government, the Labour Government Acts of 1974 and 1975 and the consolidating measure of 1978, although the odd word was changed, essentially defined "associated employers" as they are now defined in the same way: that is, that two employers are to be treated as associated if one is a company of which the other, directly or indirectly, has control, or if both are companies of which a third person, directly or indirectly, has control.
§ Your Lordships will notice that the definition relates to companies. Many lawyers are dissatisfied with that and think that it should include local authorities. At the moment it does not, and it never has under both administrations. I am only taking the law as it is. In this amendment we are saying that that definition of "associated employer" should be brought in where an employee is unfairly dismissed. That is to say, he may be ordered to be re-engaged by an associated employer. It does not happen much, but the law is stated to be such. Similarly, there is a provision relating to women workers' maternity rights which relate to the associated employer. In collective labour relations, the Government's own repeated definition of recognition of a union relates it, as did previous Governments, to recognition of a union by an employer or two or more associated employers, for the purpose of collective bargaining.
§ If it is realistic to treat, as all Administrations have, two associated employers together for the purposes of trade union recognition in law and in collective bargaining, then it must be realistic to treat the same group of companies together when a dispute arises with the workforce. It cannot be right to cut the definition of "trade dispute" to a point where the ability to control the existence of the dispute rests exclusively in many cases in the hands of the employer, if he wishes to reorganise his corporate or conglomerate group. Perhaps one can take it the other way round. In taking this example I wish immediately to say that I am not expressing any view about the merits or the demerits of the particular dispute, but perhaps I may dare to take one dispute which is in everybody's mind; namely, the dispute of the Seamen's Union at the moment which arises in respect of one group in Harwich and in respect of other groups in Dover and the like. If there is one company employing all of them, then the Government seem happy that that should be a trade dispute. To some extent it is a secondary or sympathetic dispute in respect of the original group in Harwich, although I am not sure that the union would put it that way. But does it make any sense that in law, irrespective of the merits of the dispute, it should cease to be a trade dispute to which the Dover workers can be parties when all the facts are the same but Sealink has organised itself as two separate companies—no doubt in an orgy of privatisation—Sealink (Harwich) and Sealink (Dover)? That makes no justice, and it makes no sense, either. So in appealing to the Government I am really appealing to what the Government see as common sense because our feelings of justice on these matters are not the same.
§ In considering this matter, no doubt everybody will be affected by their feelings about the types of dispute which would be involved, but I say that at this stage it is quite wrong in a measure of this kind merely to try 601 to take the definition which will get the most workers, which will get the most unions, which will get the most money out of the most unions. The debates we have had in Committee and now on Report over the last few amendments are certainly giving that impression. May I suggest to noble Lords that they should look carefully at these debates to see whether or not they bear the stamp, so far at least, of the possibility that this legislation is always modulated—not in accordance with a will-o'-the-wisp logic, follow that and you are in the marsh immediately—at each turn and phrase by that which will cause the greatest liability on the greatest number of unions and the greatest number of workers acting collectively, whereas the ability of capital to organise the employers' group is not regarded at all.
§ This is a place where the realities of life and the justice of the case demand, in my submission, that the trade dispute which is being refashioned and which the Government say must be essentially a dispute between the workers and their employer should be dealt with. But that should surely be a phrase defined by economic and social common sense. Surely you do not say "the workers and their employer" by reference only to the shallow legalism of the exact corporate capacity of the particular employment group, no matter whose subsidiary it be or who should be in charge of the corporate group. That cannot be right.
§ Therefore, at this stage I say that this amendment—to add "or an associated employer of their employer" to the definition of a trade dispute, which will still demand considerable proof by those who wish to rely upon the defence—is within the logic of the Government's Bill and within the justice of the argument which has not so far been confronted. I beg to move.
§ Lord Campbell of Alloway
My Lords, this amendment widens, as it is intended to do, the nature of the primary dispute which has a very important bearing on the area of the secondary action under Section 17 of the 1980 Act. That is the intention of the amendment. It is all very well to talk about will-o'-the-wisp logic, but the logic of the noble Lord, Lord Wedderburn of Charlton, has been wholly consistent in seeking to widen, and widen, and widen this, as I have said before, since 1969. With respect to him, it just will not do to talk about shallow legal analysis. This cannot be right. Saying that something cannot be right does not mean that it cannot be right. As we see it, it is wholly within the logic and the purpose of this Bill, and it is wholly right that the Bill should remain as it is—unamended.
§ Lord Glenarthur
My Lords, Clause 17 makes four important changes to the definition of what constitutes a lawful trade dispute. The first and, in my view, perhaps the most important of these is to restrict lawful trade disputes to disputes between workers and their own employer. As the noble Lord, Lord Wedderburn of Charlton, knows, the main purpose of this is to protect employers and employees from pressure from trade unions and workers outside the company to force them to do something which they do not want to do. At present, the definition is so wide that a trade union can be in dispute with an employer even though it represents none of that employer's workers.
602 I am grateful for what my noble friend Lord Campbell of Alloway said about the almost indefinite widening of the provisions of the Bill which the noble Lord, Lord Wedderburn of Charlton, seeks to do. We believe that his view is unacceptable. Therefore, we are establishing the principle in this Bill, that in order for there to be a lawful dispute there must first be workers in dispute with their own employer. Once that is established, a trade union will still be free to organise industrial action by those workers in furtherance of the dispute.
The amendment tabled by the noble Lord, Lord Wedderburn, seeks to extend the basis for a lawful trade dispute to circumstances where workers are in disupte with an associated employer. In the Government's view that is quite unacceptable. We do not accept that because workers are employed in a company which is part of a group of companies they should be allowed to be in dispute with any of the companies in that group. As many of your Lordships will know, companies can be very diverse and may be associated by ownership without having any real connection.
The noble Lord went on to describe in further detail, as he did in Committee, how he thought his amendment would affect the position of conglomerates or company groups. It seemed to me that he claimed that as a result of the Bill employers would organise their businesses into a series of smaller companies in order to limit the extent of lawful trade disputes with their workers. We do not consider that a serious possibility. It is not an easy business to reorganise a large and complex company. We do not believe that employers would be prepared to undertake the expense and disruption of such reorganisation on what amounts to an off-chance of restricting industrial action at some time in the future. One need only consider the inefficiencies that would result to realise that that is not a practical proposition. Indeed, in the present economic climate employers are much more concerned to make their firms leaner, fitter and better able to take advantage of any upturn in world trade than with making changes in their corporate structure that might hinder their ability to take advantage of those opportunities.
The noble Lord also sought to amplify the term "associated employer" and to compare the amendment with the small firms provision in the 1980 Act. We do not believe that the situations are comparable. The small firms unfair dismissal provisions are designed to prevent small employers who run a number of linked businesses from arranging those businesses to take advantage of the provisions in relation to each of them. However, it is common practice for firms to grow by mergers and take-overs while the constituent companies may retain much of their autonomy. Indeed, to all practical effect they remain different companies.
Your Lordships will be aware that many of our major companies are household names and have developed in that way. The effect of the amendment would be to allow workers who are employed in such conglomerates, but who may be working in vastly different industries, to take industrial action against the other employers. We can see no reason at all to justify that position. In conclusion, we feel that the amendment is neither desirable nor necessary. If accepted it could seriously undermine the effectiveness of the clause. Therefore, I hope that the noble Lord will see fit to withdraw it.
§ 9.4 p.m.
§ Lord Wedderburn of Charlton
My Lords, this amendment will certainly not be withdrawn. We have had a most astonishing response from the Government. The noble Lord, Lord Campbell, suggested that the widening of the concept of trade disputes would some-how affect the ability of trade unions and those engaged in industrial action to escape through Section 17 of the 1980 Act. There might be a case for that if the escape gateways through Section 17 of the 1980 Act as are now being proved in the courts, including the case of Marina Shipping v. Laughton in the Court of Appeal this year, to mean absolutely nothing. There is scarcely a way through Section 17, so I doubt whether this amendment would alter that very much. I shall have to deal with that separately.
Dealing with the trade dispute point, the noble Lord, Lord Glenarthur, said that employers might not reorganise their businesses in order to avoid uncomfortable results in trade disputes. That may well be the case in a large number of cases. That, however, makes it worse, because the whole matter is left to chance whether workers have a trade dispute with a company within a group. As for this tiny change in the clause leading to an indefinite widening or being part of a move of that sort, the noble Lord must be under a misapprehension. I did not move the amendment in Committee. Other amendments were moved that touched on the point, but we did not move this amendment because we wanted to see how the others came out.
I did not mention the small firms provision in the 1980 Act. I mentioned the definition for unfair dismissal and its remedies and recognition, which are much more germane, especially the latter. I apologise to the noble Lord. I did mention the maternity provisions and that may be what he referred to in the small firms provisions. If that is so, I apologise.
There is a simple point here. The Government say that they want trade disputes to exist only between workers and their employers. This is a Report stage and we must accept that. It is crazy and it is nothing like real life and it is not even justice, but we must accept it. We on this side of the House say that in accepting that formula it can be done in two ways. It all turns on what one means by the term "the employer".
There was a famous occasion in another place when a Back-Bencher interrupted a well-known Minister who was talking about trade union law and said that trade unions are corporations. The Back-Bencher intervened to say that trade unions are not corporations. The Minister replied, "I know that; I am talking English, not law". That is the choice for your Lordships' House tonight. The Government are talking law and we on this side of the House are talking English. We are talking about the people who are the employers, who actually control the resources whether through one company or 20 companies. That is a narrow enough definition. I can think of a much wider definition standing on my feet. It is a narrow definition that is already used in employment legislation because every Government, Conservative and Labour, have as a matter of common sense wanted to talk English, not law.
We shall press the amendments because we believe 604 the Government are only talking law because it suits them to deprive the unions of the widest area of defence under the trade union formula that has ever been put on the statute book.
§ Lord Ardwick
My Lords, the simple question is, who is the employer? My old colleagues on the Daily Express considered the Daily Express as their employer, but their employer is personified by Lord Matthews who is the chairman of Trafalgar House.
§ Lord Mottistone
My Lords, it is not right for anyone to speak after the mover of the Motion has closed his statement.
§ 9.7 p.m.
§ On Question, Whether the said amendment (No. 51) shall be agreed to?
§ Their Lordships divided: Contents, 49; Not-Contents, 64.605
|DIVISION NO. 3|
|Airedale, L.||Llewelyn-Davies of Hastoe, B.—[Teller.]|
|Allen of Fallowfield, L.|
|Ardwick, L.||Longford, E.|
|Aylestone, L.||McCarthy, L.|
|Balogh, L.||Milner, of Leeds, L.|
|Beswick, L.||Oram, L.|
|Bishopston, L.||Peart, L.|
|Blease, L.||Phillips, B.|
|Boston of Faversham, L.||Pitt of Hampstead, L.|
|Collison, L.||Ponsonby of Shulbrede, L.—[Teller.]|
|Davies of Leek, L.||Rea, L.|
|Diamond, L.||Rochester, L.|
|Elwyn-Jones, L.||Seear, B.|
|Ewart-Biggs, B.||Sefton of Garston, L.|
|Glenamara, L.||Stewart of Alvechurch, B.|
|Harris of Greenwich, L.||Stewart of Fulham, L.|
|Hatch of Lusby, L.||Stone, L.|
|Houghton of Sowerby, L.||Taylor of Gryfe, L.|
|Howie of Troon, L.||Tordoff, L.|
|Jeger, B.||Underhill, L.|
|Jenkins of Putney, L.||Wedderburn of Charlton, L.|
|John-Mackie, L.||White, B.|
|Kagan, L.||Wigoder, L.|
|Kilmarnock, L.||Wilson of Langside, L.|
|Abinger, L.||Elton, L.|
|Airey of Abingdon, B.||Faithfull, B.|
|Auckland, L.||Ferrers, E.|
|Avon, E.||Fortescue, E.|
|Belhaven and Stenton, L.||Gardner of Parkes, B.|
|Bellwin, L.||Glanusk, L.|
|Beloff, L.||Glenarthur, L.|
|Belstead, L.||Grimston of Westbury, L.|
|Boardman, L.||Harris of High Cross, L.|
|Boyd-Carpenter, L.||Henley, L.|
|Campbell of Alloway, L.||Hornsby-Smith, B.|
|Cathcart, E.||Inglewood, L.|
|Chelwood, L.||Killearn, L.|
|Cockfield, L.||Lane-Fox, B.|
|Colville of Culross, V.||Lindsey and Abingdon, E.|
|Cork and Orrery, E.||Long, V.|
|Craigavon, V.||Lyell, L.|
|Crathorne, L.||McFadzean, L.|
|Davidson, V.||Mackay of Clashfern, L.|
|De La Warr, E.||Marley, L.|
|Denham, L. —[Teller.]||Marsh, L.|
|Dilhorne, V.||Marshall of Leeds, L.|
|Massereene and Ferrard, V.||Sandys, L.—[Teller.]|
|Milverton, L.||Skelmersdale, L.|
|Mottistone, L.||Stodart of Leaston, L.|
|Mountevans, L.||Trumpington, B.|
|Mountgarret, V.||Vaux of Harrowden, L.|
|Murton of Lindisbarne, L.||Vickers, B.|
|Newall, L.||Vivian, L.|
|Orr-Ewing, L.||Ward of Witley, V.|
|Rankeillour, L.||Wynford, L.|
|Renton, L.||Young, B.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 9.16 p.m.
§ Lord McCarthy moved Amendment No. 52:
Page 21, line 21, at end insert—
("(2A) At the end of subsection (1) there shall be added—
(h) any of the foregoing matters which relate to persons employed on a ship situated within the United King-dom.".").
§ The noble Lord said: My Lords, I must apologise to the noble Lord, Lord Campbell of Alloway, because I am afraid that whether we put it one way or the other it is "Widen, widen, widen" or it is "Narrow, narrow, narrow again; because the object of this amendment is to prise upon a small chink in the definition of a trade dispute which the Government have almost narrowed to disappearing point. This Bill contains in Clause 17 what we regard as very substantial reductions in the scope of a trade dispute as at the moment; and of course not only does it do that but because of Clause 14 it does it in a context in which the consequences for trade unions of narrowing a trade dispute in this way are very serious. Therefore we make no apology for trying at this stage to prise open a small chink in the new definition of a trade dispute.
§ This returns to an issue which we started to discuss in Committee on Amendment No. 133 but which we did not discuss frontally. We would have raised it had we not withdrawn Amendments Nos. 135A, 136, 137 and 138 in Committee. It deals with the question of flags of convenience. The object of this amendment is to do something about the flag of convenience dispute. This has been got at—swept away, in effect—by the narrowing of the definition of a trade dispute, most notably in the construction of the dispute now, so that it concerns a worker and his employer—the very narrowing that we were discussing on the previous amendment. This time we are proposing a rather modest way of dealing with the question of the flag of convenience dispute. We are not seeking to widen out the definition as it has been narrowed for the generality of disputes, but simply for flag of convenience disputes.
§ The way we wish to do this is to add to the number of circumstances spelled out in Section 29(1) of the 1974 Trade Union and Labour Relations Act, so that in addition to all the various specified circumstances which are said to be a trade dispute for the purposes of that section we can make the simple addition that this should include a dispute concerning a ship in a port in this country. That, in effect, is what we are seeking to do by our amendment. The argument for this is a conditional one. It is in effect an attempt to argue that, although the Government in general wish to legislate to make sympathetic disputes unlawful or outside the confines of a trade dispute, they should make an 606 exception, a single narrow exception, in the case of what are termed flag of convenience disputes; that is to say, disputes which relate to sympathetic action by workers in this country who are striking on behalf of improvements in terms of conditions of workers, perhaps from this country or other countries, who are in British ports on flags of convenience.
§ The argument is that this has traditionally been allowed, that it has traditionally been covered by definitions of a "trade dispute"; that it is allowed in most other countries and that the workers concerned would be in a peculiarly difficult position if they were to take action on their own behalf; they are in fact on articles, most of them are not allowed ashore, and the possibility of their taking any action themselves on their own behalf is indeed very limited. The great attraction of flags of convenience to shipowners is that in effect one does not have to observe the kind of terms and conditions of employment that one has to observe if one's ship is carrying the flag of one of the major maritime nations. We all know what the terms and conditions of employment are notorious on flags of convenience ships. We all know that very often the only way in which the workers on those ships can do anything to improve their conditions is by secondary action organised by the International Transport Workers' Federation. This was previously lawful. It is struck out by this Bill. We are trying to find a modest way of making it lawful again. I beg to move.
§ Lord Mottistone
My Lords, before we get going on the main point of the amendment, it strikes me that the wording of it is a little difficult because a ship ituatised "within the United Kingdom" must be aground. If the amendment had said, "employed by a shipping company situated within the United Kingdom" or, "employed on a ship situated within United Kingdom waters", then it would make sense; but, as it is, it does not. I hope, whatever happens, the noble Lords opposite will not press this amendment, because I should have to vote against it because it is quite wrong to have this particular thing the noble Lord, Lord McCarthy, is asking for for a ship that is permanently aground.
§ Lord McCarthy
My Lords, may I say that of course if that is the case we would be prepared, to get the noble Lord's vote, to have this looked at again by the Government. But I always thought that the United Kingdom included water round the United Kingdom up to three miles.
§ Lord Campbell of Alloway
My Lords, coming to the substance very briefly, ships are laid up all over the world, and what is the use of having the most wonderful model terms and conditions of employment if there is no employment to be had? Furthermore, in this context surely the noble Lord, Lord McCarthy, is in error. I question him with great respect. Surely flags of convenience disputes are not lawful in most other countries and exceptionally are lawful here. Of course, if I am wrong I will withdraw, but I have always understood that to be the position, and in the various cases I have conducted at the Bar against the ITWF I have found that to be so. Why, if my premise is right, that generally these disputes are not lawful elsewhere, should 607 they be lawful here? If my premise is wrong that point is not much good.
§ Viscount Massereene and Ferrard
My Lords, I am no friend of flags of convenience, and anything that can be done to make them abide by the terms of service, wages, crew conditions, I am all for. But perhaps this is rather outside the amendment.
§ Lord Glenarthur
My Lords, the noble Lord, Lord McCarthy, has made plain the purpose of this amendment, and of course one of the results of it is the protection of the International Transport Workers' Federation's campaign against flags of convenience ships. There seems to be some impression among noble Lords opposite—certainly it seems to be the view of the International Transport Workers' Federation itself—that our amendments on definition of "trade dispute" are aimed specifically at the ITWF.
This is not so. It is true that the case which demonstrated the breadth of the trade dispute definition involved ITF blacking of the ship "Nawala". But our measures to tighten that definition have been developed in response to a general feeling in industry that there should only be a trade dispute if there is a dispute between an employer and his own employees. And their application will have an equally general effect on all employees and all industries.
It has been argued that the ITF should in some way be granted exemption from the provisions in the Bill because of the special position of seamen on ships from the third world. But we cannot accept that the ITF should be treated as a special case. There is in fact nothing in the Bill to prevent the ITF from helping third world seamen who turn to them for help in a dispute with their employer. There is nothing to stop the ITF from representing those seamen and negotiating on their behalf when they are in dispute with the ship owner. And there is nothing to prevent the ITF from organising secondary action, within the limits laid down in the 1980 Act, in furtherance of that dispute. So the Bill does not prevent the strong from aiding the weak when the weak want help, which—I get the impression—is what the noble Lord seeks to claim.
The Bill does, however, prevent unions from imposing themselves on workers who do not want to be represented by them. We have heard, a good deal about the "Nawala" case in earlier debates in the passage of the Bill. One important point which that case highlighted about the definition of trade dispute is that, as the law stands, a union can lawfully declare itself to be in dispute with an employer and organise industrial action against him even though none of his own workers is in dispute and they may all be trying to work normally. Indeed, in the "Nawala" case, the crew had declared itself to be content with its terms and conditions, and had even signed statements to that effect. Even so the ITF pressed on with its industrial action. In our view this is not acceptable and we believe the position will be rectified by the changes that we propose in the Bill.
But our main objection to this amendment is the one which my noble friend Lord Gowrie explained to your Lordships at Committee stage. Its effect would be to leave this country as one of the few remaining 608 places in the world where the ITF can lawfully pursue its blacking campaign. As an island nation dependent on trade we are particularly vulnerable to a campaign which is directed at international shipping visiting our ports. As was said in Committee, if Britain is virtually the only place in the world where the ITF can conduct its campaign, it is British jobs which will be put at risk because shipping will not dare to risk using our ports.
So I must repeat that there is nothing in the Bill to stop the ITF helping seamen who seek their help. But we cannot make special provision in this Bill simply because the ITF want to continue to use British ports as a battleground for their campaign against flags of convenience. Those who work in British ports have a right to ask, "Why pick on us?" Flags of convenience are an international issue. The place to argue against them, if that is what the ITF wish to do, is in the international bodies which exist to regulate international shipping. I must therefore ask your Lordships to reject the amendment.
§ Lord McCarthy
My Lords, I think it is quite amazing that the noble Lord can come and say this. Let me first deal with the remarks made by the noble Lord, Lord Campbell of Alloway. It is the case that there are countries where it is very difficult to maintain this kind of dispute. Nevertheless, in Sweden, Denmark, Norway and to some extent in Italy, and in other countries, too, the situation is that it is possible for the International Transport Workers Federation to operate, whereas in this country we have not only the proposed Bill but the effect of Section 17 of the 1980 Act; so the Government are doing this twice.
Perhaps I may say just a word or two to the noble Lord the Minister. I do not say that by putting this in Clause 17 of the Bill the Government aim specifically and exclusively at the ITF—they are not that good in their aim. They generally aim widely: they spatter the target. The important thing is that they certainly hit it because, of course, it is not true to say, as the noble Lord suggests, that the ITF is free to conduct its campaign on behalf of these people in other ways. For all practical purposes it can only conduct these campaigns against flags of convenience by, in effect, blacking ships. That is the only way in which it can do it.
The noble Lord does not have to believe me on this. The former Master of the Rolls, the noble and learned Lord, Lord Denning, in the "Nawala" case said:The only weapon … at the disposal of the International Transport Workers' Federation which they can use so as to ensure fair play for seamen and the like is the weapon of 'blacking'".That is what the Master of the Rolls said. He went On:If it were taken away"—and this is what the Government propose to do—in this case it would mean that it would be taken away virtually in all cases in which they operate for the benefit of seafaring men.That is what the Government intend to do—not only that but certainly that—and we see no reason to withdraw this amendment.
§ On Question, amendment negatived.609
§ 9.32 p.m.
Lord Wedderburn of Charlton moved Amendment No. 53:
Page 22, line 7, at end insert—
("but for the avoidance of doubt it is hereby declared that this definition of "worker" does not apply to paragraph (a) of subsection (1) above").
§ The noble Lord said: My Lords, this is an amendment to Clause 17 which relates not to the parties which have to be present before a dispute becomes a trade dispute under this Bill, not to the question to which my noble friend has just adverted, but to another problem relating to the content of the dispute. That is to say, the Government have now insisted that a dispute must be between workers and their employer. Most of their argument in relation to the re-definition of "trade dispute" has gone into this question of the parties to the trade dispute—not exclusively, but a great deal.
When the Government put the Bill to the Committee in another place they had re-defined the word "worker" in subsection (6) of the equivalent of this Clause 17. But the Government accepted an amendment from benches behind them in another place—and it is, of course very rare for the Government to accept amendments to this Bill, but this came from their own side. They accepted an amendment to alter the re-definition of the word "worker". Instead of the formula which they then had, with which I shall not detain your Lordships but the nature of which will become clear in a moment, they accepted the new definition in Clause 17(b)(a) as it now is at the foot of page 21 of the Bill:
"worker", in relation to a dispute with an employer, means—
(a) an employer employed by that employer".
§ Lord Boyd-Carpenter
My Lords, it is "a worker employed …" The noble Lord said an employer, as a slip of the tongue.
§ Lord Wedderburn of Charlton
My Lords, I am grateful to the noble Lord. I should have said:a worker employed by that employer".There we have it. The reason they accepted the new formulation—and I do not go on to read the paragraph over the page about unemployed workers, it is paragraph (a) that matters here—may be correctly put in this way: that from behind them came a voice that said, "You have re-defined 'worker' in a way that will make it clear that the parties to a trade dispute must be an employer and his workers, but you have not made it clear that the content of the trade dispute may not relate mainly to"—because that is now, of course, the key phrase in the new formula—"employment matters concerning some other workers". That is why the Government accepted it, and the Under-Secretary of State said in Committee in another place at column 1319:It is true that concern was expressed to us that although Clause 15, as it then was, limited a lawful trade dispute to a dispute between workers and their own employer, the Bill at present does not require that disputes are about workers' terms and conditions of employment. It leaves scope for workers to be in dispute about terms and conditions of other workers employed by other employers.In order to stop that—because of course it is thought to be by the nature of things quite an evil matter 610 that workers should dispute about matters that may relate to a other workers as well or even mainly to other workers—the Government put in a new definition. However, it is as a matter of reality again not true that people will organise industrial life to suit these nice legal categories.
I shall not take your Lordships again through the question of conglomerate groups, but it is obvious from what has been said already on this clause that a dispute may arise between a group of workers in company A that may even relate mainly to workers in company B in an adjoining company in the same group, who may be in a weaker position to carry the torch in a particular dispute. Every manager knows that he cannot marry the boundaries of his industrial relations within a corporate group, where there are different employers but one enterprise, by the lawyers' boundaries of the corporate beings that inhabit the enterprise legally. That reality was reflected by what the Government did, because although they accepted this new definition "worker employed by that employer", they did not alter the list of the contents of what would be a lawful trade dispute under their Bill. They have not to this day.
May I do what is called a Keeling in another place and read the opening part of Section 29 as it would be if this Bill were enacted in its present form. That is the best way to explain to your Lordships the current state of play. It has never been debated. The new Section 29 of the 1974 Act would read as follows:In this Act 'trade dispute' means a dispute between workers and their employer which relates wholly or mainly to"—and I stress "which relates wholly or mainly to"—
The matter need not be pursued to the end of the list of paragraph (g).
- "(a) terms and conditions of employment, or the physical conditions in which any workers are required to work;
- (b) engagement or non-engagement, or termination or suspension of employment or the duties of employment, of one or more workers;
- (c) allocation of work or the duties of employment as between workers or groups of workers;
- (d) matters of discipline;
- (e) the membership or non-membership of a trade union…"
It is immediately obvious that in all the paragraphs of subsection (1), when it comes to the content of a dispute, the word "workers" is used, which will plainly be covered by the definition, namely, "workers employed by that employer", except for paragraph (a) where the Government have left the words "any workers"; and it sticks out like a sore thumb for any—I almost said advocate, but it hardly needs an advocate; a first year student would immediately see that "any workers" is open to the question: is that different in paragraph (a) from paragraphs (b), (c), (d), and so on? It plainly is likely to be different. It is materially different from the rest, and why? It is, I suspect, because the Government really knew that the pursuit of the interests of other workers as well as their own, which may be pursuit of an interest in disputes where the other workers' interests are mainly, at that time, concerned, is a platitude of industrial life.
I give your Lordships two illustrations, one judicial and one factual. The judicial one concerns Mr. Justice Templeman, now, I am happy to say, the noble and learned Lord, Lord Templeman, who said in the case of Camelia Tanker Limited v. International Transport 611 Federation, reported in 1976 Industrial Cases Reports at page 289:It is now a commonplace, and may be thought to be a necessary weapon in the armoury of workers, that workers from different factories with different employers and belonging to different unions co-operate with one another.His Lordship on the evidence, took notice of the fact that things had changed since the last century and that that was now a commonplace of industrial life. Of course, he was right. I cannot forebear, following the last amendment to say that it is not irrelevant that that was a case about flags of convenience crews. The last debate was quite astonishing. Those who walk around looking for new evidence to denigrate the British trade union movement, rarely lose a moment in denigrating it also for the sheer human decency that underlies trade union action which attempts on the part of tugmen, lock men, and others in the docks, to help those who are imprisoned on coffin ships that go around the world expropriating and exploiting workers who cannot defend themselves, coming as from the countries they do.
I was very sorry to hear the Minister say the equivalent of what the Under-Secretary in another place wrote to my right honourable friend:The place to fight for improvements in seamen's pay and conditions is in the country in which the ships are registered and in the international fora which exists to regulate international shipping".The countries in which the ships are registered, indeed! In the great havens of trade union freedom, I suppose, such as Liberia or perhaps the Argentine. That is where the Government wish the trade union movement to send the people who are on the ships to defend their interests.
§ Lord Campbell of Alloway
My Lords, I rise only to mention a point in view of a shade of déja vu in which the noble Lord is indulging over this. We discussed "Camelia M", a case in which I was engaged, in Committee; we heard about the hulks and all such matters also in Committee; and on that occasion I tried to reply to some of those matters. Surely your Lordships do not want to be entertained any further on matters that have already been discussed?
§ Lord Wedderburn of Charlton
I am sorry if it wearies the noble Lord to hear about these matters, my Lords, but the last debate suggested that the point had not got home as to the reality of the workers on these ships. It is, perhaps, the cleanest and most decent example of workers throughout the world trying to help one another in a situation at the commencement of which everybody has to say, "I am against flags of convenience ships", and some of their best friends are, no doubt, the captains; but it just will not do to leave this matter on the table after the debate we have just had.
The noble Lord, Lord Campbell, is right to say this matter has been raised previously, but this amendment has not been put to your Lordships before. It takes the form it does—by reason of the legal point and the industrial point which come to coincide in the words of the amendment—because, first, there is an ambiguity in the Bill. In Section 29 of the 1974 Act, as amended, there will be a reference to "any workers" as opposed to a reference to "workers" throughout the rest of 612 the section, and therefore there is a doubt. We say that doubt should be avoided; that is the legal case, and therefore, I suppose, we are really saying on that ground to the Government that they had better look at it and avoid the doubts.
We go on to say that the doubt should be determined and resolved by the words we use; namely, by not applying the definition to the word, "worker", that is applied throughout the rest of the clause. In saying that, we are only saying what the Government appeared to think adequate until quite a long way through the Committee stage in another place. I have not read the whole of the Under-Secretary's response there—it was not a particularly warm reception to the need for the amendment—and very little has been said about it since.
The moral reality of the interconnection of interests of workers which stems from a simple proposition demands, we suggest, that the doubt be resolved in our direction. It is a moral right which inheres in the individual employment relationship—that the individual employment relationship is one of subordination—and the moral right that derives is collective organisation and collective action. That right is not limited to the lines which are drawn by companies on an employment map, any more than the lines which are drawn around a ship. Of course, everyone will debate where they think that moral right should or should not stop. But to draw it by reference simply to an individual employment relationship itself, as is now done in subsection (6)(a), cannot possibly be right.
I say to the noble Lord, Lord Campbell, that I am not simply saying it cannot be right as an abstract proposition. I am saying it cannot be right on the arguments I have advanced in moving the amendment. We therefore say that to clarify the doubt in relation to the terms and conditions of workers goes to the point my noble friends have been very concerned about throughout the Bill; namely, that there is in the Bill not merely an attack on the closed shop because we have gone far beyond that. There is not merely an attack on recognition of and consultation with unions—we have gone even beyond that. There is inherent in the Bill an attack on minimum terms and conditions, the maintenance of the standard rate for the trade, the attempt not to have undercutting, the exclusion of cowboy firms. They are points which good employers and good management would want to see observed as much as would unions, and that is frequently done by way of action between workers across the boundaries of employer and employee relationships.
Therefore, there is good reason for saying, in relation to terms and conditions of employment and physical conditions, that they are the very things where some element of inter-worker action is justified, and has been justified, on the Bill until a very late stage. Even now the Government have left a doubt. Having left a doubt, they have for six months—six months!—tried to do what they want to do. That was from 28th January, and now we are in August. Before they go away and look at the matter again, could not they say that, having for so long left the doubt in the direction that I have suggested, they should accept the amendment? That would resolve the doubt in favour of the ability of workers, even in this tiny area of minimum 613 terms and conditions of employment, to take action in support of one another, as in the case of the seamen in Britain. I beg to move.
§ Lord Mackay of Clashfern
My Lords, the noble Lord, Lord Wedderburn, has referred to the fact that the provision which is the subject of his amendment was the subject also of an amendment in the other place. He pointed out, as though to explain it, that the amendment came from the Government Benches. Perhaps he forgets his success in obtaining acceptance of one of his amendments on the last consideration of the Bill. The noble Lord makes two points. The first is a legal point, and I shall try to deal with it briefly. He says that in Section 29(1)(a) there occurs the phrase "any workers", and this raises a doubt whether any worker is qualified by the definition of "worker" now in the clause. I cannot see that there is any difficulty about that. The phrase "any workers" includes the word "workers", and it is defined by reference to the employee of the employer in dispute. So the definition applies to the word "workers" where it appears in the phrase "any workers", just as it would apply in any other phrase containing the word "workers". Accordingly, I do not accept the alleged doubt.
The other argument is to the effect that even if there is not a doubt, let us, for the avoidance of doubt, declare that the matter should be in the opposite sense. So far as that argument is concerned, it seems to us that the correct situation is that the trade dispute provisions should be limited in this way. We cannot see why workers should be in lawful dispute with their own employer not about the conditions under which they work, but about conditions under which workers employed by other employers work, even where the other employees have no connection whatever with the firm in dispute. Accordingly, it seems to us that on both points the provision of the Bill should stand, and so the amendment is not acceptable.
§ On Question, amendment negatived.
§ 9.49 p.m.
Lord Mottistone moved Amendment No. 54:
Page 22, line t I, at end insert—
("(8) Industrial action which results in or is likely to result in the endangering of life or limb, or the deprivation of urgent and requisite medical treatment certified as such by a registered medical practitioner, shall not constitute a trade dispute within the meaning of section 29 of the 1974 Act.").
§ The noble Lord said: My Lords, this amendment came about because my noble friend Lord Campbell of Alloway and I were discussing the implications of the troubles that some hospitals in the country are experiencing at the moment. Going back to the roots of things, it seemed to us fundamental that in a civilised country in modern times the lives and general health of its citizens should never be put in jeopardy for any reason outside the control of the individual citizens concerned. Indeed, it can be argued that the very purpose of setting up the National Health Service, with which we all agree, was to avoid just such a situation arising. Indeed, I would have thought that noble Lords opposite would be in sympathy with what I am saying for that very reason, seeing as how they are to be greatly credited with the setting up of the National Health Service.614
§ The current actions by the trade unions concerned with the National Health Service seemed to us, when we were having these discussions, to be putting the lives and general health of some citizens very much in jeopardy, notwithstanding various undertakings given, such as the acceptance of emergency cases. Since we put this amendment down there has been all sorts of news, but there was a particularly interesting article of page 3 of yesterday's Sunday Times, which some of your Lordships may have read. I will not take the time of your Lordships to do more than pick out some points, but what it says is that St. Thomas's Hospital, just across the river, seems to be a focus for discontent, and that there are other, similar hospitals, which they mention.
It says (and here I quote):
Medical staff at St. Thomas's said last week that hospital porters acting as pickets were making decisions about what drugs were needed in emergencies.
'No one would ask them for an opinion on a cat but they are deciding what supplies we should get,' said one doctor. 'Hours every day are spent arguing over this but, even when an agreement is reached, it does not mean that we get the supplies. It is all erratic. Pickets on the gate change and they may or may not let the agreed supplies through.'".
It goes on to say that the effect of all this is:
Patients badly needing treatment or operations who have been turned back include: Victims of bladder cancer who need to attend every three months to have recurrences burnt off … Old people who have had a leg amputated and must have vigorous physiotherapy to retain mobility in the stump. Blind people with cataract in both eyes who have had their operations postponed. … Children suffering from haemophilia who have joints which are stiff and deformed by internal bleeding… Heart patients who are in pain and crippled following heart attacks and have had their operations postponed because of blood shortage.… Victims of serious accidents, who cannot be treated at St. Thomas's because of shortage of routine equipment such as drip sets".
Finally, to conclude these extracts from the quotation:
Tony Young, a consultant surgeon at the hospital, says that one woman whose hernia operation had been postponed wrote and asked them to have mercy and operate because she was in so much pain.
Mr. Young went on to say:
The TUC's own code of conduct for handling a dispute of this kind has been violated in every way at St. Thomas's. Patients are being caused permanent harm by an action whose effects will become even more damaging if it continues in the present form".
§ As a result of what is happening, and, as I said, before having the detail which I have read out to your Lordships, we concluded that it was necessary for there to be some further restraints on industrial action by employees in the National Health Service and related types of employment short of a complete ban on the right to strike. Accordingly, my noble friend (I cannot say it in this House, but I will: my noble and learned friend) devised this amendment, the details of which he will explain to your Lordships when he comes to speak. I know I cannot say it, but I have done because I am very grateful to him for being so learned. I hope the Government and the House will at least accept the principle of the amendment, even if the wording requires some modification. But I also myself believe that an amendment on these lines needs complementing by a parallel management change in the National Health Service. Experience in industry has increasingly shown the need for smaller management units with maximum independent executive authority. 615 Management units of a size such that the managers are more closely related to the community served will be necessary in the case of the National Health Service units.
§ I do not suppose that that appeals to the noble Lord, Lord Wedderburn, who was arguing strongly against this sort of approach in his talk on Amendment No. 51; because what we are thinking about now is the workers and their close relationship with the community they serve and with their management, and not giving priority to the way management acts to the particular benefit of the trade union movement. If one was to put a figure on what the size of these management units should be, I would say for a start that St. Thomas's itself, let alone the associated hospitals, is too big. It is vast. It was designed at a time when people did not realise that managing was so difficult. You cannot do anything about the building; it is too big; but you can manage differently within it. I have said this and discussed it and perhaps I should say to your Lordships that I know a bit about St. Thomas's because my younger daughter was trained as a nurse there, and while she was training I paid great attention to it.
§ I should have thought that in a kind of urban/country district the sort of size of management unit would be the one serving about 150,000 people. That is the sort of size that I am thinking about. If they were organised in that way, they could be given by Government block grants, with authority to allocate them as they wish to capital expenditure, to services, to wages and salaries. If a particular management unit wanted to spend more on wages and salaries than another it should be allowed to do so, but this would be at the expense of the other types of expenditure, such as capital expenditure, if that is the way it is judged it should be. This would probably have to be supplemented further by a joint agreement at the centre of the minimum earnings level, on the lines of a joint industrial council; so that you would get a minimum below which you could not go but otherwise there would be the total flexibility. I suggest that such flexibility would seem to be a necessary parallel action to enable managers fairly to manage their employees, particularly employees subject to the sort of restraints proposed in the amendment. I beg to move.
§ Baroness Hornsby-Smith
My Lords, I should like to support my noble friends Lord Mottistone and Lord Campbell of Alloway in their amendment. It is perhaps apposite if I draw attention to a Question which would have been oral had we sat tomorrow morning and which I put on the Order Paper last week for that purpose; but because we are not going to sit tomorrow I had to turn it into a Written Question. With your Lordships' permission, I think it is apposite that I should remind the House of the Question and give the reply that the Government have made. It is very applicable to this amendment. The Question was:Whether a non-qualified member of the National Health Service staff would be liable in a claim for damages at the suit of a patient diagnosed by a consultant as requiring surgery which was frustrated by the intervention of such a non-qualified person, resulting in the deterioration of the patient's health".The reply I received was:This is a matter for the courts to decide in the light of the circumstances of the individual case. They would no doubt wish 616 to consider whether there was a duty of care owed to the patient by the prospective defendant and whether the prospective defendant could reasonably have foreseen the deterioration in the patient's condition that could result from such action".This House is well blessed with legal brains—of which I am not one—and I should like to ask my noble friend this: who would be in the dock, the surgeon who wished to carry out the operation and was denied the opportunity to do so, or the union official who has said: "You will not operate on these three or four patients on your list today"? I think that is crucial to this amendment.
I was privileged to be a junior Minister in the Ministry of Health for six years. I well remember the discussions which took place between my then Minister, the late right honourable Iain Macleod, and the Royal Colleges, the Nursing Council, the BMA and all the associated medical groups and unions interested in the then prospective Medical Act. At that time the Act provided penalties against those persons who, not medically qualified, presumed to act as doctors. In that Act there are penalties. It was never anticipated or foreseen in those discussions when the Bill was drafted that employees not medically qualified would take upon themselves the awful responsibility of deciding whether or not an operation could be carried out or medical treatment could be given, let alone to tell a surgeon or consultant physician which patient he may treat or upon whom he may operate.
Over the past fortnight I have read many press reports, and I have listened avidly through the media to statements by COHSE representatives, NUPE representatives, nursing representatives and others. I have been fascinated by their adamant position regarding the lines of demarcation of their job. In one instance, we had evidence that no nurse—even a husky male one—was allowed to assemble a bed. That was the job of the porters, and they were on strike. Yet these same people are so adamant in enforcing the lines of demarcation and, in the main, are not qualified medically. But they are prepared to cross that most crucial line of demarcation with terrifying arrogance—the line of demarcation between a totally experienced and qualified medical practitioner and a non-qualified worker in the hospital.
My Lords, I am loath to do this but I think it is apposite if I take my own experience as an example. Some four years ago, after being treated for laryngitis for months, I lost my temper and I said that nobody had laryngitis for that long and I demanded a second opinion. It took the very experienced and distinguished surgeon (now retired) 30 seconds flat to tell me that I had a very large growth in my throat and it required a prompt operation. He even warned me that possibly I might not be able to speak normally again. That might have been a great satisfaction to some of your Lordships, but it would have been a ghastly trauma for me. As it happened, he operated on a Friday but even he, with 40 years' medical skill and knowledge behind him and with all his experience could not tell me until the following Tuesday morning, by which time the growth had been through the path. lab., whether it was benign or carcinogenic.
We have over recent years paid far greater attention to warning women about the prevalence of growths in the breast, and there has been very good publicity inspired by the Ministry of Health and aided by the 617 media. Many women have discovered for themselves some alien growth or "knob" and gone to their doctor early. I know at least a dozen women who, suspecting this for themselves, have gone to their doctor and have had prompt surgery. Half of them turned out to be benign and half of them proved to be carcinogenic and required subsequent radiotherapy. But all of them, because of the prompt operations they had, were saved from the trauma and disfigurement of total mastectomy.
My Lords, I beg of you: these are not decisions to be made by unqualified people. The right to strike of people employed in the health service I do not deny, nor would I challenge it for one moment; but their right to cross that vital line of demarcation which will decide matters of medical need and may refuse to alleviate continuous pain or allow frightened or unhappy children to be denied the treatment that medically-qualified people have diagnosed for them is, I believe, totally unacceptable to a civilised nation. That is why I support this amendment.
§ Lord Rochester
My Lords, I am afraid that my noble friends (for I think I speak for them as well) and I cannot support this amendment in its present form. It is of course deplorable, as the noble Baroness, Lady Hornsby-Smith, has understandably reminded us, that industrial action should be taken in these circumstances, as it is now being taken by people who are employed in occupations that are vital to the immediate support of life. But we do not think it is feasible to operate legal sanctions and, despite what the noble Lord, Lord Mottistone, has said, and subject to what the noble Lord, Lord Campbell of Alloway, has to say, I think that inherent in this amendment are legal sanctions. We do not think it is feasible to operate such sanctions against the ultimate right of individuals or groups such as those concerned in these disputes to withdraw their labour.
If time allowed, I would, in response to the latter part of the speech of the noble Lord, Lord Mottistone, go on to suggest a way in which it might be possible to resolve disputes of this kind, a way which meant that recourse to industrial action was not necessary. However, I do not propose to detain your Lordships at this time unless challenged so to do. Perhaps it will suffice for the moment to say what I have felt obliged to say.
§ 10.10 p.m.
§ Lord Boyd-Carpenter
My Lords, the amendment of my noble friend Lord Mottistone raises a point of great seriousness. The background to it, as your Lordships may be aware, is this. Since 1906, in one form or another, there has been an immunity from legal action for people taking part in a trade dispute. Sometimes it has been wider, sometimes it has been narrower, but there has always been, and under this Bill there continues to be, an immunity in respect of participation in a trade dispute. The point that this amendment raises is whether such immunity should be continued in the case of action which may be endangering health or life.
Where I think I differ from the noble Lord, Lord Rochester, is when he talks about legal sanctions—I think that was the phrase he used. I look at it from 618 the other end. The trade dispute immunity is a special privilege for those taking part in a trade dispute, which for those who benefit from it means that they can do things affecting other people without being taken to the courts by those other people, although everybody else, those not involved in the trade dispute, would be subjected to legal action if they did that same thing. It is not a question, as the noble Lord, Lord Rochester, suggests, of this amendment's introducing legal sanctions. What is involved—and I think that this is a distinction of some importance—is the withdrawal of legal privilege. It is for your Lordships to say whether action of the kind which we have heard described so movingly by my noble friend Lady Hornsby-Smith is action which we should feel be specially protected and privileged, as compared with the normal legal position of the ordinary citizen outside the trade dispute immunity.
I would add only one reason why I feel so strongly about this. As some of your Lordships who heard a Question of mine about three weeks ago may recall, on the initiative of a very senior Member of this House I went over to St. Thomas's Hospital about three weeks ago and had a meeting with some of the people responsible for running that wonderful hospital. The despair and the agony of men who have been forced, day by day, as a result of the industrial action which is being taken, to choose which of a limited number of people should have an operation or treatment, with the corollary that others whom they thought should have it were not able to have it, was deeply moving in itself.
Their problem was nto just the withdrawal of labour, because they have been sustained there in that hospital, as in other, by many loyal staff who have continued to work. Their problem was caused by the pickets at the gates denying, among other things, the entry of necessary medical supplies, of sterile dressings, of blood and of sterilised instruments. As a consequence of this, the number of operations which they normally undertake—something in excess of 100 in a day—was down to 30, and one-third of the beds in that great hospital were empty, when normally they are 90 per cent. occupied, because of the physical pressure being applied by the pickets in denying the entry of supplies and, to some extent, the entry of patients.
I find it a little difficult to speak with moderation about the action of junior non-medically qualified staff who presume to judge whether or not a case is an urgent and emergency one, not least because one of the great surgeons there said to me, "Someone comes to the hospital with a pain in his tummy. Until we have examined him we do not know whether that is just an ordinary stomach-ache, he having eaten something that he should not, or stomach cancer. We do not know." For people standing at the gate to seek to say to someone who is wanting to come in for that examination and who is in the agony of mind which such a person is in, quite apart from the agony of body, is an inhuman form of presumption.
We must not widen this debate, but there may be many other remedies. It may be that the whole structure of the Health Service, as my noble friend Lord Mottistone suggested, requires revision, but with respect that does not arise on this amendment or on this Bill. What arises on this Bill is whether your Lordships feel that people who are prepared, in pursuit 619 of their own interests, in pursuit of their own levels of pay and conditions about which they may well feel, in all seriousness, deeply aggrieved, to inflict such suffering on some of their fellow countrymen should be entitled to special legal privilege and immunity.
§ Lord McCarthy
My Lords, I should like to agree with almost everything which has been said by the noble Lord, Lord Rochester, but I want to spell out what I take to be the alternative to this amendment. We are certainly not being asked whether we believe that industrial action in the National Health Service, which deprives people of their life or health, is a good thing. We are not being asked whether we have any comments or views tonight on those who are in dispute at the moment in the National Health Service. I have no intention of saying anything about the merits of that case. I do not believe that it is our job to comment upon on-going disputes and, as I have already said, we are not asked to say whether we believe in the kind of industrial action which does the kind of thing which the amendment aims at. Of course, we should deplore industrial action which had that effect. What we are being asked to say is whether we think that this amendment would help. That is the way that the noble Lord, Lord Rochester, faces the problem: would this amendment help?
My position is that I do not think that it would. I agree with the decision of the Royal Commission on the National Health Service, that workers have a special responsibility to their patients and that they should consider very carefully whether it is possible for them to develop a system of industrial relations, as a result of their special responsibility to patients, whereby the strike weapon could be exchanged for some other way of resolving disputes. That is a very sensible approach. I agree further with the Royal Commission, who went on to say that simply to solve this issue by a system which ruled out legal action or by a system which substituted for strike action a system of compulsory arbitration would not go to the root of the problem.
I come here to a point which was made by the noble Lord, Lord Mottistone. With respect, it is not a question of the structure of the National Health Service. The problem would be the same if you carved up the National Health Service into different bits and lumps. If you really believed that small was beautiful, then you would bring back cottage hospitals. If, however, you broke up St. Thomas's Hospital into 50 separate pieces the problem would be the same. That action would not go to the root of the problem. The root of the problem is how to find satisfactory arrangements for deciding pay and conditions of work.
We believe that certain groups in this country should not take industrial action. For example, we believe it for the police, we believe it for the armed services, and presumably we believe it—this is the justification for the system which we have established—for the fire service. If we believe that certain groups of workers, because of their responsibility to their patients, or to the national economy, or whatever, have no justification for using industrial action, then we have to take away the need for them to use industrial action. I say again that I am not commenting on 620 this dispute. One has to go to the root of the problem. And we have gone to the root of the problem for the police, for the armed services and for the fire service. We have given them a combination of pay review and a system of determination which enables particular disputes arising out of that pay review to be settled.
That is the only satisfactory way of dealing with the problem, not by legislating to take away the right to strike. In the absence of such a situation what are they to do? One thing they can do is what they have done—sit down and seek to draw up rules and guidelines. If they then find themselves forced to use industrial action—again, I am not deciding whether or not they were forced to—they have a code of practice that makes it least likely that the industrial action will be used in ways that produce the consequences of this amendment.
I recommend to the House a publication of the TUC Health Services Committee, which has already been quoted because noble Lords have referred to the code of practice. The code of practice was drawn up by the TUC unions. If I had more time, I would have read out large sections of that code of practice as I originally intended. It is a unilateral code. The TUC wish to see the code, and its proposals for a system of compulsory arbitration that would have avoided industrial action, discussed with the Government. However, the Secretary of State for Health and Social Security has not discussed the document with the TUC, and the code of practice has, therefore, been imposed unilaterally.
I do not suggest that the code of practice always works. Some of their Lordships might find that funny, but I do not. However, when it does not work, on the whole there is no mystery as to why. There are a number of reasons. One is because there are some notoriously bad industrial relations in parts of the NHS. One of the general rules—I do not intend to specify the areas or hospitals, but those who know the NHS will be aware of them—is that when the code of practice breaks down and when the actions that noble Lords have read out from newspapers take place, it is almost invariably in a hospital that is notorious for bad industrial relations. Difficulties of that kind follow bad industrial relations.
Secondly, the key to the code of practice is consultation, negotiation and agreement on a system of admissions, picketing and supplies which prevents the events that the amendment is designed to prevent. The code breaks down because the management cannot, I am afraid, commit all the medical staff to operate the code. They insist on operating their own individual methods of deciding how people should be admitted and in what ways they should be admitted. Where that happens, and they may think they are perfectly right, it is difficult to get the code to operate.
Finally, the code breaks down because the dispute has become—this is the only way I want to comment directly on the dispute—very protracted and prolonged. The code of practice was not intended to work for this length of time. As the dispute is protracted the definitions that can be insisted upon to define the areas of emergency and non-emergency, safety and non-safety become difficult to operate. Such areas as laundries, CSSD and the postal services, which in a short dispute appear to workers to be clearly outside the area of 621 emergency and of health, suddenly become inside it. The bad industrial relations areas, the absence of management ability to commit all members of the medical staff to operate the code and the length of the dispute all combine to make the problem more difficult to deal with.
Nevertheless, there is no solution in this amendment. This amendment, if I may say a word or two about it, is curiously vague in its terminology. It is indeed a recipe for dispute within itself. It talks about industrial action,which results in or is likely to result in the endangering of life or limb,which itself is a recipe for legal contest. What is likely to result in or endanger life or limb, or the deprivation "of urgent and requisite medical treatment"? The amendment does not specify. Who is to say whether the deprivation or lack of urgent and requisite medical treatment has in fact constituted an endangerment of life or limb? Presumably it has been assumed so far that a doctor will say.
The assumption here—and I suggest that it is an oversimplification—is that all doctors will agree. Part of the problem is that all doctors do not agree. Some doctors think that some things are necessary, and other doctors think that other things are necessary. If this clause were ever quoted in a dispute in a court of law, then each side would produce its doctors, who would argue that this, that or the other would have happened if this, that or the other industrial action had or had not taken place. The clause itself is extremely vague and would give rise to litigation.
The last and final reason why we should think twice before we rely on a legal solution is that we have one. We have had one since 1875. Since 1875, Section 5 of the Conspiracy and Protection of Property Act has specified that when any person wilfully and maliciously breaks a contract of service or hiring, knowing or having reasonable cause to believe that the probable consequences of his so doing will be to endanger human life or cause serious bodily injury, he is liable to statutory jurisdiction on conviction of up to three months, with or without hard labour. That statute, so far as I know, has never been the basis of an action. Yet we are being asked to solve this problem by producing another peice of legislation—another clause. I suggest, with the noble Lord, Lord Rochester, that there are better ways of dealing with this problem.
§ Lord Campbell of Alloway
My Lords, as my name is on this amendment, I wish, with the leave of your Lordships, to seek to explain some of the misapprehensions with which it has been entertained so far in certain quarters in your Lordships' House. I am extremely disappointed that the noble Lord, Lord Rochester, should distance himself so far from the intentions and the spirit of these proposals. I fear that perhaps it is because he does not truly understand what they aim to achieve.
The reaction of the noble Lord, Lord McCarthy, was measured but also predictable. On certain aspects where he sought to suggest that this could become a contest of doctors, that is plainly not so if he will look at the wording again—but now is not the time to 622 discuss the details of that. The object of this amendment is very simple to state. It is to remove the industrial action taken in the special limited circumstances which would be unlawful at common law but for these immunities, a point made so cogently by the noble Lord, Lord Boyd-Carpenter, which would be unlawful at common law from these statutory immunities which render them lawful. I am sorry that the noble Lord, Lord George-Brown, is not in his place because on a previous occasion, with an agreeable stroke of ribaldry in my direction he said that any barrack-room lawyer could nitpick with a snappy Platoesque gesture. On this occasion, had he only been here, it is I who have arranged the nits for his picking, and the special circumstances are so tightly hammered down that they are related to endangering life and limb or the deprivation of medical attention duly certified.
The type of industrial action affected is the primary action within Section 13 of the Act of 1974. The secondary action within the ambit of Section 17 is the Act of 1980, and picketing which procures a breach of contract in this context. The drafting recognises the existing régime as regards statutory immunities generally under existing law, and these remain wholly intact, save in these very special circumstances related to the humane considerations that have been developed by other noble Lords.
There is the minimum degree of interference with the general statutory régime réquisite to achieve these humanitarian objects. The amendment involves no restriction on the right to strike, and even in these circumstances the worker as an individual retains his inalienable right to withdraw or withhold his labour on due notice. The worker also retains, save in these circumstances, the right to picketing his place of work for lawful purposes under existing law. I hope that your Lordships would feel that this proposes in all truth the bare minimum requisite to avoid further outrage to human dignity. If so, your Lordships could once again discharge one of your Lordships' vital legislative functions as the ultimate guardian of common rights of ordinary people as generally accepted throughout the land.
True, there are provisions which relate to the first limb of this amendment which, as we heard from the noble Lord, Lord McCarthy, quite correctly of course, render it a criminal offence materially, wilfully and maliciously to breach a contract, knowing that a consequence of so doing will be to endanger human life or cause serious bodily injury. That is the old Act of 1875, as your Lordships probably all know. That was quite some time ago. It is a criminal act. In my submission—I thought it was the policy of the noble Lords opposite—it is probably wholly inappropriate to have resort to criminal sanctions against trade unions.
This, I understood, was something totally abhorrent unless as an ultimate last resort, because it involves direct enforcement of the criminal law by the police. The provisions of the criminal law would not, so far as I can see, in any case, relate to the second limb of deprivation of medical attention duly certified, which is so very important on the humanitarian plane, especially in connection with the circumstances of woman to which reference has been made. They 623 would not in all probability cover any procurement of breach of contract; they do not relate to any threat to procure breach of contract for delivery of medical supplies, and they do not afford any right whatever at criminal law to proceed in the courts to enforce your rights by way of injunction or damages, and what else is there to be done. If these provisions, or provisions to this effect, were in force the patient could sue, the consultant could sue, the hospital could sue, something might be done to regulate what I have described as an outrage to human dignity and others have described perhaps more appropriately.
The last point in regard to legal framework is this. It may be said, and some noble Lords opposite will know this, "Oh, but you can get it before the courts because if you show a technical breach of statute—here you can show technical breach of the 1975 statute—then you lose your statutory immunity on Section 13 and you can try and get the judge to intervene". Well, what a way to proceed. Let us, I would suggest, recognise the advice and authority of Lord Radcliffe, and deal with such matters according to the substance under the rule of law generally applicable in the civil court.
§ The Earl of Cork and Orrery
My Lords, may I draw your Lordships' attention back to the matter of this amendment, which I take to have as its subject the question of whether or not a more or less unskilled tradesman is or is not entitled to decide the life or death of a suffering person. It is perfectly possible to deliver an elaborate, academic legal lecture on the rights and wrongs of this particular position. It is equally possible, as we have seen from the speech of the noble Lord, Lord McCarthy, to give a diffuse and academic disquisition upon all sorts of totally unrelated subjects dealing with codes of conduct, codes of practice and industrial relations.
The fact of the matter is that we are dealing here with what has been boiled down to the essence by my noble friend Lady Hornsby-Smith and my noble friend Lord Boyd-Carpenter, the question of (shall we say?) a biopsy. If there is a doctor in the House, he will correct me if I am wrong in my definition of biopsy. I think it is the removal of a piece of tissue from a suffering person to discover whether or not that piece of tissue is carcinogenic or cancerous or malignant. My noble friend Lady Hornsby-Smith described how this was done in her own case, how the surgeon with 40 years experience had to wait from Friday till Tuesday morning to discover from the report of the pathological laboratory whether or not she had cancer. This surgeon did not know. He performed the operation and sent the specimen to the laboratory, and he had to wait until Tuesday morning to find out. But an operative of the National Union of Public Employees holds to himself the right to say that this was not an emergency operation. It is not a bit of good the noble Lord, Lord McCarthy, saying that he is not going to talk about the present dispute, because the present dispute is absolutely germane to this whole argument. It is going on. There are men who are saying whether or not a surgeon can carry out an operation.
§ The Earl of Cork and Orrery
My Lords, I shall finish what I am saying and then I shall give way to the noble Lord. There are men who are saying whether or not a surgeon, with all the years of experience behind him, is to judge whether or not the operation which he is scheduled to perform shall be carried out on behalf of the patient, or whether the theatre porter shall decide that this is not an emergency operation and the surgeon shall not proceed.
§ Lord McCarthy
My Lords, I know that the noble Earl does not want to misrepresent me. I did not say that I would not comment on the circumstances of this dispute. What I would not comment on is the merits of this dispute—that is, for example, whether the employer should improve upon the offer. On the consequences of this dispute, yes; in terms of life and limb, yes; we have been talking about it all the time.
§ The Earl of Cork and Orrery
My Lords, I note what the noble Lord, Lord McCarthy, says. I do not know why he said it. I suppose it gave him some satisfaction. I maintain that what we are talking about is the question of whether or not an uninstructed, unskilled man has the right to say to a surgeon that he shall not operate on a person who may or may not have cancer, to take a particular case which is typical and frequent. Is that allowed? I believe that it ought not to be allowed and I believe that this amendment will prevent it and so I support it.
I agree with the noble Lord, Lord McCarthy, in one respect—namely, that I think that the amendment is faulty in a single word in line 1 where it says:Industrial action which results in or is likely to result in".The word "likely" is a soggy and ambiguous word and will give rise to all kinds of argument in court. I should like to see something like "results in"or"may ". I do not know how it should be drafted, but I think that it could be improved. With that reservation, I wholeheartedly support the amendment.
§ Baroness Seear
My Lords, surely everyone in your Lordships' House agrees that we do not want situations in which people's life and limb is endangered. There is no argument about that. That is not what the discussion is about. Nor, with all respect, is it about the particular cases where somebody not medically qualified makes these decisions. We must all deplore that. This amendment is much wider than dealing with such cases and it is not basically about that. While agreeing that we want to avoid imperilling cases of that sort, there are two points in connection with this amendment which make it unacceptable to us on these Benches at any rate.
First, with great respect to the noble Lord, Lord Campbell, who has so extensive knowledge of these matters which we all respect, the removal of the immunities does, in fact, imperil the right to strike. That is what the immunities have been about. To say that the right to strike is not reduced, if not totally removed—and I think "totally removed" is in reality more true—by removing the immunities, is just not true. Surely this is, in fact, what it is all about. I think that for that reason alone we would not be prepared to support this amendment.
625 But even more important is the fact that if you are going to reduce the right to strike—if not, as we believe, remove it; if you are going to say (and there is a strong case for saying it), "We would like to make it unnecessary, if not illegal, that people in such positions should strike"—and, as the noble Lord, Lord McCarthy, has said, we have done this in other cases like that of the police—then this amendment should contain an alternative. It should explain how you are going to arrive at satisfactory working conditions for people who, for one reason or another, should not be striking. The amendment does not say that.
If the movers of the amendment would withdraw it and would come back with a satisfactory alternative to striking for the fixing of pay and conditions of employment for people in these highly intensive and important jobs, then, indeed, our whole view of the amendment would be different.
§ Baroness Trumpington
My Lords, we have heard a splendid speech—a learned speech—by my noble friend Lord Campbell of Alloway. Following on what the noble Baroness, Lady Seear, has said, in many ways I would agree with her. I totally agree with the spirit of this amendment, but I am not sure whether I can agree with its actual wording. Having heard my noble friend Lord Campbell, it is extremely difficult to follow with another emotional speech, but in this kind of amendment it is inevitable that one's personal life should come into what one might say, and in any case it gives me the opportunity publicly to thank the Westminster Hospital—which, so far as I know, has not yet been mentioned—for nine months of immense care for my family, and the social services, who have also been absolutely superb. I am really glad to have this opportunity to do so.
Having stated my personal thanks, I should like to say that other trade union disputes involving strikes involve hardship and inconvenience. They do not always involve pain and, perhaps, danger to life itself. To put people at the mercy of those who are not professional healers—against the wishes of those who are—and to endanger life seems to me to be monstrous.
My noble friend Lord Boyd-Carpenter mentioned supplies going into hospitals. I have personal experience of the difficulties for people—for instance, the social services—in getting supplies out of hospitals. In my case it was not a question of life or death; it was a question of an acutely miserable pain-ridden weekend for someone, which was quite needless. I cannot see that one can go into categories of suffering because everybody experiences suffering and it is above any question of Government practice.
As I said before, I totally agree with the spirt expressed by this amendment. Delay in dealing with human suffering should be accountable and should not be left to—"amateur" is the wrong word—nonprofessional personnel. It is certainly not a question of trade union gobbledegook, as expressed by the noble Lord, Lord McCarthy.
§ Lord Ardwick
My Lords, I should like to say how much I agree with the constructive approach of my noble friend Lord McCarthy, but I think it is necessary to say from these Benches what was implicit throughout 626 his speech but what was not made explicit—that however had industrial relations may be, however inadequate industrial arrangements are, there is no justification for the holding up of suffering people.
§ Lord Boardman
My Lords, I should like to pose the question in a slightly different way. The noble Baroness, Lady Seear, referred to the right to strike as being sacrosanct. I believe that the right to live is of even greater importance. My noble friend Lord Boyd-Carpenter put it in its right perspective when he said that we are talking about the granting of privileges and exemptions. If this amendment were worded in the way in which, indeed, it could equally well be interpreted, that "you shall be privileged to take industrial action, you shall be free from legal sanctions if"—in the words of the amendment—"you take action which endangers:"life or limb, or the deprivation of urgent and requisite medical treatment certified as such…et cetera, and if, indeed, the amendment said that people who carry out that action shall have legal authority and sanction so to do, then I cannot believe that your Lordships would wish to sanction such a course.
That, indeed, is what this amendment seeks to prevent, because it is saying that such action shall not be authorised and shall not have the privilege and exemption to which reference has been made. For that reason, despite no doubt defects in the drafting, I would hope to hear that my noble and learned friend on the Front Bench would be able to give a fair wind to the intent behind this amendment.
§ 10.50 p.m.
§ Lord Wynne-Jones
My Lords, this is an extremely important matter and one in which I find myself very much in sympathy with the basic idea of the amendment, but I am not in the least satisfied that this is the right way of going about it. I speak with perhaps a little personal knowledge because I have had three hips replaced and I am awaiting the replacement of a fourth hip. Perhaps I sound like a quadruped. The replacement of these hips has been of immense importance to me in my life. I certainly look forward to having the fourth hip replaced. But I want to say—and I think this bears out what the noble Baroness, Lady Seear, was saying—that in judging these matters one has to judge how significant and important they are. It is all very well to say that a specialist, an excellent person, has judged that some operation ought to be carried out. How really important is this? It is not so easy to make this decision.
I would say that at the present time there are a large number of people in this country who ought to have a hip replacement, and it is not being carried out not because of any action by people employed in the health service but because there are not sufficient facilities available for the operations to be carried out. There are very many people in this country who would benefit from an operation and to whom that operation would mean that they could carry on their work properly, and they are not able to do it at the present time because the facilities are not available. There are not sufficient beds available; there are not sufficient surgeons available to carry out the operations, 627 and consequently the operation is not carried out. Whether you get the operation or not may well depend on whether you have the money to pay for it or not. I will give way to the noble Baroness.
§ Baroness Trumpington
My Lords, may I ask the noble Lord whether what he is saying has to do with the question? How much worse is it going to be if there are pickets stopping those few cases that are available and that the noble Lord is talking about?
§ Lord Wynne-Jones
My Lords, the noble Baroness very well understands what I am saying. There are inadequate facilities available throughout the whole country for the operation to be carried out. This I know to be a fact. I know it because I happen to know a little about this matter. I had my two hips replaced in 1968. I had a third hip replaced, if I may put it that way, a year and a half ago. I was told at the time that I ought to have my other hip replaced as well.
§ The Earl of Cork and Orrery
My Lords, I am wondering whether the noble Lord has forgotten that we are debating an amendment; or is he repeating a Second Reading speech?
§ Lord Wynne-Jones
I am speaking very clearly to the amendment, my Lords; I did not make a Second Reading speech. The amendment deals with industrial action resulting,in or is likely to result in the endangering of life or limb",and I was talking about limbs, and if that is not in order, I am surprised. The amendment deals with an important point, but it tries to prescribe exactly how one should deal with the matter. I am saying that the way in which one deals with it is quite different from what is proposed in the amendment. If you are dealing with what is happening, or is likely to happen, to people, you have to ask yourself whether this is really significant, and I would say it is not significant, not because it is not important but because the method proposed is wrong.
As for the method of trying to prescribe how you deal with this question of how you go about coping with people suffering, as the amendment says, in regard to life or limb, it is clear that when talking about the life and limbs of people—and I know what I am talking about, as I have explained, because of my limbs—it is important to consider that the people concerned are suffering in a way that does not depend necessarily on the interference or non-interference of people in the Health Service, and therefore the amendment is irrelevant to the issue of life and limb.
§ Lord Mackay of Clashfern
My Lords, I say straightaway that I have the greatest sympathy with the sense of outrage which has prompted my noble friends Lord Mottistone and Lord Campbell of Alloway to 628 move this amendment and so many of your Lordships to support it. I believe many people throughout the country will share their concern at the way in which some of those involved in the current dispute have been ready to use the sick, the weak and the elderly in pursuit of their campaign for more pay. No one, I think, can fail to feel distaste and anger at the sight of trade union officials, with no medical qualifications, turning back patients and supplies, and telling doctors whom they can and cannot treat. I recognise of course that the trade unions in the current dispute have generally agreed to maintain emergency services, and I understand that with one or two exceptions perhaps, emergency cover has been maintained, though I share the concern that some of your Lordships have expressed about what exactly is comprehended in emergency cover in the present circumstances.
No one, I think, can assess the long-term effects on patient care—the noble Lord, Lord Wynne-Jones, was making this point—that the strike has caused, and in particular the effects of failing to carry out so-called "non-essential" treatment and operations. We have had moving accounts of personal experience which illustrate that point only too clearly.
I have no hesitation in condemning any action, wherever it takes place, which deliberately sets out to inflict suffering on the weak and defenceless, and I have little hesitation in condemning action which is said not to be intended to inflict hardship, but where the inevitable consequence of the action taken is indeed to inflict suffering on the weak and defenceless. A strike in pursuit of sectional interests, without regard to the human misery caused by it, is very difficult to excuse or to defend.
I have to turn from that aspect to the somewhat more technical aspects of the amendment. Some of the action which has taken place in the current dispute may already be unlawful under the present law. Secondary picketing, for example, was made unlawful in the Employment Act 1980, and those whose contracts of employment or commercial contracts are interfered with by such picketing already have a remedy in the courts against the pickets. Similarly some of the secondary or sympathy action which has taken place in other industries may also be actionable, where it interferes with commercial business. The current Bill adds to those protections by amending the definition of a trade dispute and by making trade unions themselves responsible if they organise unlawful action. Moreover, I believe that it is, and always has been, an offence under the criminal law for a picket to obstruct a lorry taking vital supplies to a hospital, or to obstruct patients or hospital employees who try to enter a hospital.
The changes that we have made to the law give real and specific protection against the irresponsible use of industrial action in a very wide range of circumstances. But the question raised by my noble friends' amendment is whether we should go further and outlaw primary industrial action which may result in,or is likely to result in the endangering of life and limb, or the deprivation of urgent … medical treatment….Although we have great sympathy with the noble Lords' aim, I have to say that we have very serious doubts about the practicability of what they are proposing.
629 As has already been mentioned, there is already on the statute book Section 5 of the Conspiracy and Protection of Property Act 1875. As has been said, that makes it a crimianl offence for a person wilfully and maliciously to break his contract knowing that the probable consequences of his so doing will be to endanger human life, or cause serious bodily injury, or to expose valuable property to destruction or serious injury. That provision has been on the statute book continuously for over 100 years. But in that time very few prosecutions indeed have been brought under the Act, and to our knowledge none has been brought in recent times. However it shows that as long ago as 1875 there was very considerable concern about the same problems that, so clearly, are concerning your Lordships this evening. There may be several reasons for the abscence of the use of the provision, but undoubtedly the main one is that it is difficult to prove that industrial action will directly endanger life or limb, or is intended to do so.
I believe that there is an important lesson here, because the amendment that we are now considering is not all that different in form from Section 5 of the 1875 Act, though, as my noble friend Lord Campbell of Alloway has pointed out, it is in the criminal law, whereas the intention of the present amendment is that it should form part of the civil law. The probability is, therefore, that it would be very difficult to use or enforce.
In particular cases it may be very difficult indeed to show convincingly that industrial action put life at risk. Indeed, the trade unions in the current dispute would no doubt claim as has been suggested, that their actions could not do so because they were maintaining emergency services. In a criminal prosecution, of course, in order to secure a conviction the evidence has to raise the proof to being beyond reasonable doubt.
I should also add that when we discussed this question of strikes and essential services—and this is really an example of a particularly important and essential service—in our consultations on the Green Paper on trade union immunities, it was a widely-held view that this particular matter would be difficult to deal with in this way. Most people agreed that such strikes were highly undesirable, but most people also acknowledged the difficulty of preventing them by legislation.
I now come particularly to the point made so forcefully by my noble friend Lord Boyd-Carpenter. I must point out that an amendment of this kind, so far as I have understood the position—and I think I have understood it correctly—would not generally give to the patient whose life or limb was in danger any remedy that he does not have at the present moment. I have no doubt that if I am wrong about that my noble friends who have moved the amendment will correct me.
§ Lord Campbell of Alloway
My Lords, would my noble friend the Minister allow me to interupt him—I will take no time—merely to say, most respectfully, that I do dissent?
§ Lord Mackay of Clashfern
My Lords, no doubt my noble friend will explain the reason for his dissent, but certainly my understanding of the position is that this amendment would not generally give to the patients in the National Health Service any remedies that they do not already have. Furthermore, I must point out that even if we wanted to accept this amendment there are difficulties about it in its present form. I need not take up much time with that, but the reference to "industrial action", I think, would require some elaboration, because the phrase does not appear in statute at present.
To sum up the Government's position, we certainly strongly sympathise with the objectives of the amendment and appreciate the problem with which the amendment seeks to grapple; but we question whether, on the lines proposed, this amendment would achieve a satisfactory solution to the problem. On the contrary, my fear is that were this amendment to be passed it would simply lie unused and unusable on the statute book. It is our duty—and my noble friend Lord Boyd-Carpenter referred to this earlier—to ensure that the laws we pass can be applied in practice, do have a practical result. It is not for us to engage in legislation by gesture, however justified the reason for doing so. That, with the greatest respect, is what I believe this amendment in its present form would in fact amount to, and, as much as I hesitate to say so, I hope my noble friend will feel able to withdraw it in the light of the expression of view which I have given to him.
§ Lord Mottistone
My Lords, before my noble friend sits down, may I ask for some confirmation before I come to make up my mind later on? Do I understand that the remedy, either in the 1980 Act or in the 1875 Act, is there for the using if the area health authority cares to use it?
§ Lord Mackay of Clashfern
Yes, my Lords, there are the remedies available in these provisions. Of course, whether or not the remedy is available in a particular case depends on the circumstances of the case. All I can do is to indicate the position generally, as I have sought to do.
§ Lord Renton
My Lords, every speech which has been made in this very important debate has indicated that the present situation is undesirable and that something must be done. We have just had a speech from my noble and learned friend the Lord Advocate running through all the possibilities, including the one outlined in this amendment, and I noted what he said. He has said in effect that nothing can be done under any head. I am sure that noble Lords on both sides of the House will be surprised and disappointed by that and so will the people at large outside Parliament. I find most surprising the statement of my noble and learned friend that the amendment would not give rise to any new remedy; because that clearly seems to me to be strange, the point being that, under the present law, immunity is given in a trade dispute against actions of tort, and the very essence of the amendment is that it would remove that immunity. To that extent, it does give rise, if not to a new action, to an action which is not available at the moment. If that is wrong, my noble friend Lord Campbell of Alloway who has a much 631 greater experience of trade union law and its application in the courts than I have will perhaps be given leave by the House to speak again and explain why it is wrong. But what my noble and learned friend the Lord Advocate has said does not seem to me to be right.
May I concede one point to my noble and learned friend the Lord Advocate and that is this? Just as there is a difficulty of proof in cases brought, cases which are criminal cases under Section 5 of the 1875 Act, so there will sometimes—not always—be a difficulty of proof in actions of tort brought within the framework of my noble friend's amendment. But, having conceded that, I must say that I am surprised and disappointed that in this vital matter the Government can hold out no hope of any remedy at all. Even the noble Lord, Lord McCarthy, referred to some possibility of the right to strike being sacrificed and replaced by compulsory arbitration. that is something which has been discussed and should be thought of again.
I hope to hear from my noble and learned friend or some other representative on the Front Bench that the Government will at least proceed with that possibility if they are not going to accept the amendment. However, if the amendment were to be pressed to a Division, I should find it very difficult not to vote for it, because it seems to me that of the various solutions that have been mentioned tonight this is the most moderate one.
§ Lord Mackay of Clashfern
My Lords, I did not wish to delay the House by involving myself in too detailed a legal argument, but the reason I made the statement that I have done—which I was challenged about by my noble friend—is something which I am very happy to explain if your Lordships will give me leave to do so. This provision is for the removal of an immunity. It does not create a right of action and therefore you have to ascertain whether there is a right of action to start with. My understanding is that the generality of patients in the health service will not have a contractual right of action. Therefore, since this amendment is eliminating an immunity against a right of action depending upon interference with contract, since there is no contract to interfere with in the generality of cases, the removal of this immunity would put nothing in its-place. That is the final reason why I made the explanation that I did.
§ Lord Renton
My Lords, my noble and learned friend is quite right in saying that there is no right of action, but there would be a right of action for negligence but for the existing immunity. Remove the immunity and there is surely a right of action for negligence.
§ Lord Mottistone
My Lords, this has been a most interesting debate and I am extremely grateful to all noble Lords who have taken part—except, possibly, the Liberals, with whom I am extremely disappointed. I really am disappointed because, as my noble friend Lord Boardman made so clear, they were more hooked on right to strike than right to live. I think that that is tragic. I expected what I got from the other side but I would just like to say briefly one thing. The noble Lord, Lord McCarthy, mentioned the police, the 632 armed services and the fire service. There is a very special distinction between them which I should like everybody to think about because it is relevant to this for all time and I have been giving a lot of thought to it. In the armed services, the police and fire service the people concerned put their own lives at risk and depend on team work between each other and discipline to go with it in order to minimise the risk to their own lives. In the case of the health service employees, it is the patients whose lives are at risk; but the employees themselves do not suffer a bit.
It is a very fundamental difference and it means that you cannot expect them to respond to discipline in the same way as the armed services and the police do, and you cannot therefore, expect them to forgo so readily the right to strike because they are in a different category. So it is a unique situation, and it is tragic that the people whose lives are at risk are not the operators with whom we are concerned. That is the conundrum.
I am deeply disappointed in my noble and learned friend on the Front Bench and his reply. He made all sorts of splendid introductory remarks and said that he was very sympathetic to what we had to say. He produced his legal arguments which are at variance with those of my noble friend Lord Campbell of Alloway, who shares with me the privilege of putting down this amendment.
I had hoped that my noble and learned friend would say: "We do not like your amendment, but we see the force of the argument. We have heard the force of the speeches of the very many splendid speakers, particularly the personal, serious ones of the noble Baroness, Lady Hornsby-Smith, and the noble Baroness, Lady Trumpington". Notwithstanding all that, there is no move by the Government to say: "This is a difficult problem. It is a unique problem and it must be dealt with. We must find a way and we will endeavour to do so between now and Third Reading. We have the time between now and Third Reading and we, the Government, will try and find something that we can do". My noble friend did not say that, and I am very sorry to have to say that I shall have to put this matter to a Division to see what the House thinks about it.
§ 11.17 p.m.
§ On Question, Whether the said amendment (No. 54) shall be agreed to?
§ Their Lordships divided: Contents, 32; Not-Contents, 50.633
|DIVISION NO. 4|
|Abinger, L.||Grimston of Westbury, L.|
|Airey of Abingdon, B.||Harris of High Cross, L.|
|Belhaven and Stenton, L.||Hornsby-Smith, B.|
|Boardman, L.||Howie of Troon, L.|
|Boyd-Carpenter, L.||Lindsey and Abingdon, E.|
|Brougham and Vaux, L.||Marsh, L.|
|Campbell of Alloway, L.—[Teller.]||Milverton, L.|
|Mottistone, L. —[Teller.]|
|Cathcart, E.||Mountgarret, V.|
|Chelwood, L.||Newall, L.|
|Cork and Orrery, E.||Orr-Ewing, L.|
|De La Warr, E.||Renton, L.|
|Faithfull, B.||Stodart of Leaston, L.|
|Fortescue, E.||Trumpington, B.|
|Gainford, L.||Vaux of Harrowden, L.|
|Gardner of Parkes, B.||Vickers, B.|
|Avon, E.||McCarthy, L.|
|Aylestone, L.||McFadzean, L.|
|Belstead, L.||Mackay of Clashfern, L.|
|Bessborough, E.||Marley, L.|
|Bishopston, L.||Mountevans, L.|
|Blease, L.||Murton of Lindisfarne, L.|
|Boston of Faversham, L.||Oram, L.|
|Colville of Culross, V.||Ponsonby of Shulbrede, L.|
|Crathorne, L.||Rea, L.|
|David, B.||Rochester, L.|
|Davidson, V.||Sandford, L.|
|Denham, L.—[Teller.]||Sandys, L.—[Teller.]|
|Dilhorne, V.||Seear, B.|
|Elton, L.||Skelmersdale, L.|
|Elwyn-Jones, L.||Tordoff, L.|
|Ewart-Biggs, B.||Underhill, L.|
|Ferrers, E.||Vivian, L.|
|Glenamara, L.||Ward of Witley, V.|
|Glenarthur, L.||Wedderburn of Charlton, L.|
|Henley, L.||White, B.|
|Jenkins of Putney, L.||Wigoder, L.|
|Kilmarnock, L.||Wilson of Langside, L.|
|Llewelyn-Davies of Hastoe, B.||Wynford, L.|
|Long, V.||Young, B.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 11.26 p.m.
Lord Campbell of Alloway moved Amendment No. 55:
After Clause 19, insert the following new clause:
("Repeal of contracting out.
.—(1) The rules of a trade union shall not provide that direct contribution to the funds of a political party, or membership of a political patty, shall be a condition of membership: and any provision to such effect shall be void.
(2) It shall not be lawful to require any member of a trade union to make any contribution to the political fund of a trade union unless he has at some time after the passing of this Act and before 1st January 1983 delivered at the head office or some branch office of the trade union notice in writing of his willingness to contribute to that fund, or has not at some time subsequent to 1st July 1983 delivered at the head office or some branch office of the trade union notice in writing of withdrawal of his notice of willingness to contribute to that fund.
(3) Every member of a trade union who has not delivered a notice of willingness to contribute to that fund, or who having given such notice has withdrawn the same, shall be deemed to be a member who is exempt from the obligation to contribute to the political fund of the union, and references in that Act to a member who is so exempt shall be construed accordingly.
(4) The delivery of any notice referred to in this section may be by the member of the trade union in person, by any authorised agent, or by post properly addressed to the head office or some branch office of the trade union, which shall be deemed to be due delivery.
(5) All contributions to the political fund of a trade union from members of the trade union who are liable to contribute to that fund shall be levied and made separately from any contribution to the other funds of the trade union, and no assets of the trade union other than the amount raised by such a separate levy as aforesaid shall be carried to that fund.
(6) No assets of a trade union other than those forming part of the political fund shall be directly or indirectly applied or charged in furtherance of any political object and any charge in contravention of this subsection shall he void.").
§ The noble Lord said: My Lords, with your Lordships' permission I will also speak to Amendment No. 61, which is consequential, at the same time. Amendment No. 149 was not moved at the Committee stage, by accident, and in no way by design. It was directed to the abolition of the check-off system, 634 which would have ended not only contracting-out but also the system of contracting-in. This amendment is different. It merely restores contacting-in—a system which obtained for some 20 years between 1927 and 1946. It repeals—hence the consequential amendment—Section 5 of the Act of 1913, which is now an anachronism, and it restores the substance of the provisions of the Act of 1927.
§ It may seem an odd way to put this matter before your Lordships to say what this amendment is not intended to do, but it is not intended as any attack upon trade unions. It is not intended to benefit or damage any political party to the detriment or advantage of another. The question which arises is whether in society as it exists today, and not as it existed in 1906, 1875 or 1913, where there is a fragmentation, such as we now have, of political allegiance; where the concept of freedom of association under Article 11 of the Convention of Human Rights, and all that that entails, obtains; where in the aftermath of two world wars the whole structure of society has changed, with access to higher education, to bank accounts and to all the benefits of the welfare state and where the unions have developed over this long period of time from blue collar, struggling for survival, to include the professional and managerial classes, to become a powerful institution—indeed, a third state in the realm—contracting out is acceptable or defensible. Should we continue to operate a system of human inertia to provide political funds for political objects at the behest of the executive of a trade union, an executive which may well have a different composite political allegiance to the majority of the rank and file? In parenthesis, may I remind some of your Lordships who may have been present that on an earlier occasion today in your Lordships' House I went out of my way to stress what I believed to be of importance: the authority of the executives of trade unions. This in no way is designed to run counter to that concept.
§ When this contracting-out system was introduced by a Liberal Government some 70 years ago it was wholly justified, notwithstanding certain fears expressed by the Conservatives as to victimisation. But your Lordships may well think that the situation which obtained 70 years ago is not relevant today. I happen to believe that total freedom as regards contributions to political funds is right and is wholly essential and that it is also in the long-term interest not only of the trade unions as an institution but of all political parties. It is an important subject on which the views of your Lordships are far more important than the introductory observations which I have expressed. But I raise this as an important subject, as a question for debate, by this amendment. I beg to move.
§ Lord Underhill
My Lords, the noble Lord, Lord Campbell of Alloway, says that this is merely restoring contracting in—merely. I hope your Lordships understand what that really means. What was a travesty of justice in 1913 will still be a travesty of justice in 1982. Therefore it is necessary to paint the picture completely. One must bring into this the position of the Labour Party and the trade unions. We are unique in this country—unique in that a political party was founded by a decision of the Trades Union Congress in 1899 which led to the first inaugural 635 conference of the Labour Party. Trade unions paid in towards Labour Party expenses until the Osborne judgment of 1909, which said that it was illegal for a trade union to make payments for political purposes. Then we had the 1913 Act. It is that Act at which we are looking today.
Everybody thought that the position was right until the Osborne judgment. The 1913 Act restored the position to what people thought was the position. Practically all legal opinion thought that the position was correct until the Osborne judgment. The 1913 Act made a very good provision: that anybody who did not wish to contribute to the political fund of a trade union could contract out. In other words, somebody who did not agree with the majority view could contract out. That was the position until the Trade Disputes and Trade Unions Act 1927, after the General Strike of 1926. All moderate trade union and Labour Party opinion in 1927—including that of Clement Attlee whose memory seems to be more respected as the years go by—described that as a punitive measure aimed at reducing the power of the trade unions and lessening their influence inside the Labour Party. To suggest that one can talk about contracting in and contracting out without reference to the political consequences—I hate to use these words—could be said to be deceiving your Lordships' House.
The 1927 Act remained in being until it was repealed in 1946 and contracting out was re-established. Therefore, we have had contracting out for 36 years. We must look at the procedure laid down by the 1913 Act, which is the law as it operates today. Before a trade union can make any payment for political purposes it must ballot all its members. That is laid down by law. Even if there is a majority in favour of establishing a political fund the union must then draft the political fund rules and those rules cannot be enforced until they are approved by the certification officer. Only when that has been done may a union make any payment for political purposes, and then only from the political fund.
There are parts of the amendment of the noble Lord, Lord Campbell of Alloway, that deal with those aspects, but I shall not refer to them now. I shall concentrate mainly on the important provision of the repealing of contracting out. It must be emphasised that there is strict legal control over the payment of political expenses by unions. No other organised body of citizens has to submit to that kind of restriction on its political associations and activities.
The 1913 Act only makes provision for a political fund. After a union has obtained democratic approval for a political fund it may then decide what to do. The trade union may then take a democratic decision to affiliate to a political party. So far, every union that has decided to affiliate to a political party has, with great common sense, decided to affiliate to the Labour Party. Long may that continue.
Lord Campbell's amendment would inhibit the democratic right of a trade union to decide to take such a decision to affiliate to a political party. However, should any member of a trade union object to making contributions to a political fund of a union and object to the political activities of a union or to 636 its affiliation to a political party, he has a legal right under the 1913 Act to contract out of paying political contributions. Surely, that is democratic. The amendment would provide the strange procedure that a member of a trade union who supports a majority decision must contract in to declare his support for that democratically arrived at decision. That is standing democracy absolutely on its head.
I do not know whether your Lordships who are members of the Social Democratic Party will support the amendment, although I notice that one of them has put his name to the amendment. However, I remind them that there are nine members of that party who, until they left the Labour Party received financial sponsorship for several years from the political funds of trade unions which were contributed to by members who did not have to contract in. Those who disagreed contracted out. There are another four SDP members who accepted other financial help from the Co-operative Party.
Any suggestion to change the legal position for the political funds of unions can only be judged to be an act of political discrimination. Without wearying the House, I searched for a quotation that might fit the Bill. I found one from 1948. It is an exceptionally clear exposition of the case by one of the most moderate of Labour Party leaders, J. R. Clynes. He said:The law"—that is, referring to the 1927 Act—made a mockery of democratic practice, which is the observance of majority rule in the internal affairs of all manner of associations to advance their avowed objects. If a group resolves to act together, even in the running of a Tory club or of a tennis court, the majority determine the payments, management, and the rest".He continued:The 1927 Act"—and that was the Act that changed the law so that we had to contract in—ensured the enthronment of minority dictatorship. It provided that a union may take a ballot of its members on whether they would establish a fund and pay a contribution for political purposes. The result was usually in favour. But that meant nothing, for the minority could walk away without obligation of payment, and the majority could do nothing unless men individually signed a form empowering them alone to pay".That was called contracting in, and it permitted men to do just what they could have done without any ballot whatever. That is what the amendment seeks to reintroduce.
If the argument is that it is too laborious a procedure for contracting out, then presumably it will be just as laborious a procedure for contracting in. I looked very carefully through the annual reports of the certification officer, and what did I find? I found that in 1978, only 12 complaints were made about the statutory process for contracting out. In 1979, there were 105 complaints, but 76 came from one workplace. In 1980 there were only 20 complaints, and in 1981 only 12 complaints. There can hardly be much complaint about the procedure for contracting out.
This amendment just cannot be carried. It stands democracy on its head. It is right that a person who disagrees in principle with his union's political 637 association should have the right to contract out of that decision if he disagrees. What the amendment would do is reverse the position, and would say that those who agree with the majority must sign to say that they do so. That seems to me to be complete nonsense, and that is a principle which we must defeat in this amendment.
§ 11.42 p.m.
§ Lord Houghton of Sowerby
My Lords, it is a great pity that we are taking two amendments to this Bill, which raise such far-reaching issues of importance and national interest, at this hour of the night. It is a pity that we were not dealing with these amendments earlier, when the public was listening or might have taken a little notice. Probably the only advantage of tonight is that we shall hog the whole of "Yesterday in Parliament", instead of having to share it with another place—but that is an argument for sitting tomorrow and the day after, and not for finishing tonight.
This amendment really does amount to changing contracting out into contracting in. Subsections(5) and (6) are really covered by existing legislation. The report of the certification officer for 1981, which I have in my hand, is very interesting on matters of the kind raised, for example, in the proposed subsection (6). A case in point is set out in full in the report of the certification officer, where a union was stopped from investing, as it thought, general funds in the Labour Party headquarters in Walworth Road. The certification officer said that was not an investment but was a furtherance of political objects, and those who were using the money in that direction knew that it was a political object. He ordered that the political fund should refund to general funds the amount which had been invested in Labour Party headquarters, which shows—
§ Lord Houghton of Sowerby
No—which shows that these matters are being dealt with by the certification officer when complaints are made.
§ Lord Houghton of Sowerby
My noble friend must leave me alone at this late hour because I want to be brief. I have been through all this myself, in my own union. I recall all the events connected with contracting in and contracting out. The main issue goes far wider than the exercise of individual rights of trade unions, wider than the issue of democracy in trade unions. It has really become part and parcel of the financing of our political parties. I was chairman of a committee on this subject and my noble friends Lord Underhill and Lord McCarthy were members, when we were looking at the wider issue of how we were financing our political parties in this country. The way the Labour Party is financed out of trade union levy substantially has to be looked at in the light of the way the Conservative Party is financed, which comes from so-called donations and contributions in very large amounts indeed. We have the present two main 638 political parties each financed very substantially indeed from the sources which represent their vested interests.
We made proposals in the report, by a substantial majority on the committee, in favour of reducing the dependence of the two main parties on their traditional sources of support. We proposed to do it by means of a modest injection of state funds into all political parties by reference to their performance at the previous general election. That report is still on the table. The Labour Party supported it; the Liberal Party supported it; the Conservative Party dissented and so did the Scottish Nationalists. That is the real issue we have to decide sooner or later.
In the meantime, the issue is between contracting in and contracting out. The political levy cannot be done away with in the trade union movement in its present relations with the Labour Party without grave injury to the financial stability of one of our major political parties. So the political levy stays, and political objects, a separate feature of the financial arrangements of trade unions, stay, too. The reason why it was contracting in the 1927 Act, which changed the procedure from the 1913 Act, was undoubtedly to weaken substantially the influence of the trade union movement in the Labour Party and weaken the Labour Party itself. That was the purpose of it, and the Government of the day made no secret of what they were trying to do. They banished all Civil Service associations from their links with the TUC; if they had political funds they closed them; if they were affiliated to the Labour Party it had to stop, and the Civil Service trade union movement had its dual loyalties resolved by being isolated completely from the rest of the trade union and the political movements in this country. That was the penalty of being in the dilemma of loyalty to the TUC and to the State at the time of the General Strike in 1926.
I was at the Memorial Hall in April 1926 when the General Strike was declared; I am one of the few survivors of that meeting. I was a very young delegate from the Inland Revenue Staff Federation. I joined in the singing of "Abide with me", which all the trade unionists sang lustily while their representatives were at 10 Downing Street arguing with Mr. Baldwin. It is impossible to resolve on the return to contracting in without recalling the purpose of the change when it was last made, and repealed in 1946, and without having regard to the principle behind the original 1913 Act provisions. Since the 1913 Act provided for a union, by ballot, to decide on whether political objects became part of the objects of the union, it left of course the trade union that so decided with a majority decision in favour of bringing political objects within the objects of the union. Those who dissented from contributing to the decision of the majority had the right to contract out. That was the principle of the matter and why it was not put the other way round.
So for the time being at any rate all this has to be left as it is. Whether we shall ever get to a more rational basis for financing our political parties, whether we shall spare the Conservative Party its dependence on the sources of supply it now gets; whether we shall overcome the need for this kind of contribution to the Labour Party from the trade union 639 movement, I do not know. On average about 80 per cent. of the trade union members in the unions with political objects, do contribute to the political fund; some more so than others. But if we pass this amendment it would be seriously misconstrued. It would be interpreted as a further attack. It would be regarded as an addition to the existing attack in the Bill itself on the trade union movement. It would leave the Labour Party sadly crippled financially without doing anything to put on a more satisfactory footing the contributions made, particularly to the Conservative Party. It would look so one-sided, so politically biased and so hostile to the trade union movement, that I do not think that any of the hardliners on the Benches opposite would seriously entertain this proposal in this Bill at this time.
§ Lord Wedderburn of Charlton
My Lords, before my noble friend resumes his seat, I should like to ask him to accept that my intervention was out of a concern that he should not be misrepresented on the issue of the case he cited. He said that the certification officer's decision about the money for Labour Party headquarters, was in a case where the defendant trade unions knew that it was for political purposes; whereas the full report shows that they received weighty but, as it turned out, incorrect and wrong advice from a solid legal source that this was not within the Act and the meaning of "political purposes". I did not want him to go on record as regards the question of the defendants knowing that they were doing wrong—which was not the case.
§ Lord Houghton of Sowerby
My Lords, I am obliged to my noble friend. But exactly what they did and exactly what the certification officer decided is all in the report. From what they put in the report, it is clear to me that the union argued that this was not expenditure but an investment, and that the purpose was not the furtherance of a political object, but profitable investment. The certification officer disagreed with that view and he made it clear in all the reasons he gave that the union should have known and did know that this was for the furtherance of a political object and he, therefore, disallowed it.
§ Lord Rochester
My Lords, I am not sure if, after discussion of this amendment, certain noble Lords opposite will be more or less disappointed with my noble friends and myself, for I think that I shall be speaking for them too. In any case, what we say will continue to be determined not by the esteem in which our words are held by noble Lords opposite, but by what we think.
We have sympathy with the aim of this amendment up to a point, believing it to be wrong in principle that trade union members should be obliged to contribute to the funds of a particular political party unless they specifically contract out of such an obligation. On the other hand, we feel that this is an issue on which there should be even-handedness as between employers and trade unions on the one hand, and political parties on the other. By that I mean that if the law is to be altered in the way proposed by the noble Lord, Lord 640 Campbell of Alloway, companies should, in our view, at the same time be debarred from making contributions to the funds of particular political parties, except with the express authority of shareholders given at annual general meetings, rather than, as now, that such contributions should merely have to be recorded in a balance sheet.
I suppose that the only other way—and here I am glad to be following the noble Lord, Lord Houghton—in which the desired even-handedness could be achieved, would be through more state funding of political parties. But that raises other issues which are perhaps somewhat more remote from the terms of this amendment.
However all that may be, with these points in mind for myself I find it difficult unreservedly either to support or to oppose this amendment. I am nevertheless glad that the noble Lord, Lord Campbell of Alloway, should have raised the matter, for we certainly agree with him that an important principle is here at stake.
§ Lord Boardman
My Lords, perhaps my interest in this as a former treasurer of the Conservative Party is one that should be declared. Certainly I intervene only because the noble Lord, Lord Houghton, and indeed others, seem to have continued to get out of perspective the relationship between the funds which the Labour Party receives from the trade unions and those which the Conservative Party receives from so-called "big business".
I think I am right in saying that the Labour Party's contribution from trade unions runs in the region of 80 per cent. to 90 per cent., and the Conservative Party's receipts from "big business" is something under 20 per cent. This is normally distorted, and I believe it is right that this House, in looking at this amendment, should perhaps have that fact in mind. The vast majority of the contributions to the Conservative Party come from individual contributions, donations, collections at the doorstep, jumble sales and all that sort of thing.
§ Lord Jenkins of Putney
My Lords, is it not the case that 80 per cent. of the Labour Party's income and 20 per cent. of the Conservative Party's income are not, in fact, comparable, and that the Conservative Party's income is so much larger than the Labour Party's income?
§ Lord Boardman
My Lords, I will not go into percentages and I did not want to detain your Lordships by dealing with absolute figures, but I think one will find that the percentages are probably right. In view of what the noble Lord, Lord Houghton, said, it is correct to make the point. My personal view is that one should rely upon voluntary contributions for political purposes and I would be opposed to the type of state aid which the noble Lord, Lord Houghton, put forward in a most excellent and clear-thinking report, with the decision of which I disagree.
On the particular merits of contracting out and contracting in, I believe that contracting in is the right course if one is to accept, as I do, that contributions to political parties should be voluntary. On the other hand, 641 I do not believe that it is a matter of top priority in the reform of our industrial relations. I believe that there are many other issues in our industrial relations which perhaps should have higher priority.
We must not forget, taking the point of the noble Lord, Lord Rochester, that companies are a corporate body that make a corporate decision as to the expenditure of their funds dependent on whether they be charitable donations, political donations or whatever it might be. Of course, if people do not like those corporate decisions they are entitled either to opt out of the company or to move and criticise directors or sack the directors, whether it be with regard to the political contributions they make, the charitable contributions they make or any other aspect of their management of the business. But they are a corporate entity, and to that extent I believe that the distinction between corporate donations, which I would say represent a much smaller proportion of Conservative Party funds than is generally thought, and those of the contracted and less contracted out contributions of the trade unionists to the Labour Party, are quite distinguishable.
§ 12.1 a.m.
§ Lord Harris of Greenwich
My Lords, the issue raised in the amendment of the noble Lord, Lord Campbell of Alloway, the noble Lord, Lord Spens, and myself is whether or not individual trade unionists should in reality be compelled to support financially a political party they do not favour. That is the issue we are discussing at the moment, and it is fundamental. The legal background has been stated by the noble Lord, Lord Campbell of Alloway, in the clearest terms. As the noble Lord, Lord Underhill, said, under Section 3 of the 1913 Trade Union Act, as amended, unions that want to contribute to a political party must establish a separate political fund and they must do that after a ballot of their members. They are obliged to give all their members the right to contract out from paying this political levy.
What is the scale of what we are talking about? In 1979 the expenditure from the political funds of the 59 trade unions that maintain them amounted to around £5 million. They affiliated to the Labour Party on the basis of about 75 per cent. of their total membership. But that does not mean that 25 per cent. contracted out from paying the levy. As the Hansard Society report on the financing of political parties published last July showed, unions do not affiliate in proportion to the number of their members who in fact pay the levy. The level of affiliation of unions varies widely from, at the lowest extent, around 49 per cent. of levy-paying members in the case of the Confederation of Health Service Employees, to 100 per cent. in the case of the ASTMS.
It is these affiliation fees that vary so widely from 49 per cent. in one case to 100 per cent. in the case of another trade union that determine the number of votes that a trade union delegation has at the annual Labour Party Conference. As Mr. Michael PintoDuschinsky pointed out in British Political Finance 1830 to 1980, a union may decide to purchase—because that is in fact what we are talking about—an additional block of voting shares at any time that it feels like doing so.
642 To give one illustration of this, in 1979 the Transport and General Workers' Union decided to purchase an additional 250,000 conference votes at a price of £100,000. It is on this basis that 90 per cent. of the votes at the Labour Party Conference are now bought. Let us remember that it is by the votes of this conference and the exercise of the votes of this conference that Mr. Wedgwood Benn and his colleagues claim that they have a mandate for an irreversible shift of political power in this country. The issue is not as unimportant as the noble Lord opposite seemed to suggest. It is fundamental to the future of our democracy.
Not only that, but now it is clear, as a result of the constitutional changes that have taken place so far as the Labour Party is concerned, that the support of these block votes, and the way in which those votes are distributed, is crucial to the question as to who in fact would win the struggle for power to become the leader of the Labour Party, and therefore in certain circumstances conceivably Prime Minister of the country. Because of this it is even more important that we should be clear of the circumstances in which the trade unions' political funds are administered.
It is argued, as it has been by the noble Lord, Lord Underhill, and others who of course support the present system, that there is absolutely no difficulty at all. If the trade union member does not want to support the Labour Party, he has a very simple redress to his difficulties; he simply gets from his local branch secretary the necessary form and all is well because he contracts out from paying the political levy. Bluntly, I believe that view is nonsense, and I will try to demonstrate why I take that view. From the Report of the Commission on the Financing of Political Parties published by the Hansard Society I will give two illustrations, but they are both interesting and they show how much validity there is in the argument that all the problems can be dealt with by the present system of contracting out. They deal in particular with two specific examples:In their study of the 'affluent worker' in Luton"—I am going back to the years 1962 to 1964—Goldthorpe … found that large numbers of trade union members were making a political contribution: 'without realising this; that is to say, either they do not think they pay the levy but have not contracted out or they admit to having no knowledge of the levy at all … it is in fact only amongst the craftsmen that a majority of the unionists pay the political levy and know that they do it; in other groups this proportion averages out … in the region of only "two-fifths"'".In short, what they found in this particular case in Luton was that, in a very substantial number of cases, trade unionists were not even aware that they were paying a political levy at all. They go on to give a more recent example, which is a recent study by Moran of a Union of Post Office Workers'—now, they point out, the Union of Communication Workers'—branch in Colchester in Essex:When he asked members of the branch whether they paid the political levy, 51 per cent. claimed that they did, 39 per cent. said they did not and 10 per cent. did not know one way or the other. However, the author was able to establish that everybody in the sample was paying the levy, and he observed that: 'The most common immediate response to the question was bafflement. Members were often simply unaware of what the question was about and many of the "correct" answers came in the form of statements like "I suppose I must" which almost constituted straightforward confessions of ignorance.' His conclusion was 643 that: 'The answers to this question clearly show the important role played by ignorance in allowing the UPW to pursue without difficulty a policy which is supported by only a small minority of members ' ".The situation is a great deal worse even than that. There can, in my view, be downright intimidation. Of course, the evidence for such intimidation is inevitably anecdotal. In some cases where political extremists hold union office, the man who wants to contract out has to be a bold man indeed. He has to demand the appropriate form often from a hostile and abusive left-wing trade union official, and even then is often told to call back because, mysteriously, the stock of contracting-out forms has disappeared. One has only to look at the results of the 1979 general election to see that the Labour Party is in fact being financed by many of its political opponents. Dr. Ivor Crewe, of Essex University—and again I turn to the Hansard Society source—suggests that only 50 per cent. of trade union members then supported the Labour Party. As we know from what has subsequently happened, probably the proportion has fallen even more sharply since then.
I believe that the situation is entirely unacceptable. Of course, what the noble Lord, Lord Houghton of Sowerby, said, is right; of course there are also involved fundamental issues relating to the financing of political parties. But with great respect to the noble Lord, I do not believe that that justifies the continuation of the system, which in my view is almost entirely indefensible. I do not believe that men and women should find themselves supporting a political party through either ignorance of what are their legal rights in the situation, or fear of the possible consequences to themselves of contracting out. That is why a number of my noble friends and I propose to divide the House tonight on this question, believing, as we do, that there are undoubtedly fundamental issues here. Certainly a number of us propose to demonstrate that fact in the Lobbies this evening.
§ Lord Jenkins of Putney
My Lords, I have played little part in the proceedings today, saving myself for the amendment which is in my name and which is to follow the present amendment. However, I am prompted to intervene at this stage by the speech of the noble Lord, Lord Harris of Greenwich. I think it rather noteworthy that the hostility to the political levy system which has overcome members of the SDP is something that they have suddenly discovered since they left the Labour Party. These people, who have subsisted on the system, enjoyed its fruits and benefits, whose political lives have been built upon it, have, somewhat late in the day, suddenly discovered that they do not like it at all, that it contains great infairnesses, difficulties, problems, and so forth.
One thing that we can be quite sure about is that no noble Lord opposite contributes to the Labour Party funds without his knowledge and against his will. I contribute to the Conservative Party funds without my knowledge and against my will. Before I go on to that point, I would mention that I belong to two trade unions. One of the trade unions, Equity, does not contribute a penny to the Labour Party, never has contributed a penny to the Labour Party, and, to my sorrow, I say that I do not believe that it ever will contribute a penny to the Labour Party, at least not in 644 the immediate future. Like many trade unions, that union has no political fund at all.
The other trade union to which I belong is the ASTMS. I am sorry to say that as it has increased its membership, and as it has moved into the professional areas—banking, insurance, and so forth—the number of people contracting out has steadily increased. So as far as the ASTMS is concerned, a steadily lessening proportion of people actually contract in.
The object of pointing that out is to show that the noble Lord, Lord Harris of Greenwich, has been talking total nonsense. I say that because if the truth of the matter is that it is so difficult to contract out, how is it that people manage it so easily in the ASTMS, and how is it that one particular trade union—and there are many others as well—has no political fund at all?
Of course, there are peculiarities and unfairness in the system of financing our political parties. However, I am not one who wants to see the political parties financed by the state. I believe that when we start to pull apart our present financing system, we must ask ourselves, "What do we put in its place?" If we are to say, "Well, the state is going to finance us", what then happens to freedom? I consider that the notion of political parties being financed by the state is one that we ought to look at very carefully indeed. Of course, it might be said that all political parties ought to subsist on the individual contributions of their own members. As the noble Lord, Lord Houghton, has pointed out, if that were to be done, the basis of finance of both the Conservative Party and the Labour Party would immediately be undercut, and that would alter the whole structure of our political system.
I should now like to explain why it is that against my will I contribute to the Conservative Party. Some time ago I became attorney for an estate, and for a short time I had to look after some shares. I had to be responsible for the shares, and I was astonished to find that in regard to all five of the shareholdings, as their temporary owner I was making a contribution to the Conservative Party funds, in one way or another. I had no means of contracting out. I would have liked to be able to contract out. I would have enjoyed the contracting out system: but I could not possibly contract out.
§ Lord Marsh
My Lords, I am grateful to the noble Lord for giving way. Did it ever occur to him at all to sell the shares?
§ Lord Jenkins of Putney
Yes, I did in fact sell them, my Lords, but for the short time I had them, before I got rid of the things, I was contributing to the Conservative Party—and the same applies, of course, to anybody who holds shares. There is no basis whatsoever on which to contract out of paying towards the Conservative Party. But, of course, it is worse than that. Nobody is compelled to be a shareholder, but every time I buy a glass of beer the froth on the top is a contribution to the Conservative Party. I may blow it off, but they still get the money. It may be only a farthing, or something like that; but there is no way out, other than by giving up beer, and this I do not intend to do, even for the Conservative Party! There is no way possible in which I can opt out of contributing to the Conservative Party because practically all the brewers contribute to them.
645 Consequently, I think that if we deal with this from a point of view of total hostility to the Labour Party—and that was the note that was coming through the speech of the noble Lord, Lord Harris of Greenwich—we shall deal with it on the wrong basis. An analysis of our system of financing, an examination of what we are all doing, of a rather high-powered character—there might be something in that; but with all its faults and with all its peculiarities, and with all its occasional inconsistencies and difficulties, it seems to me that our present system of financing, with some improvements here and there, has in fact stood the test of time, and I think we ought to think twice before we try to change it in the manner suggested in this amendment.
§ 12.18 a.m.
§ Lord McCarthy
My Lords, most of the points which could conceivably be made from this side of the House have already been made, but since the object of the amendment is to cripple the Labour Party it may be right that somebody from this Front Bench should say what we think about it. Nevertheless, as I say, it has been said most ably by the speakers on this side, and I merely want to go back to the points originally made by the first speaker who spoke in favour of this amendment and say that the thing to ask is how we got into this position. As my noble friend Lord Underhill said, we got into this position because of the Osborne judgment in 1910. Until that time the trade union movement were on a par with employers, with companies and with every other incorporated body. They were able to use funds as they wished, and if they wished to use them to promote political objectives, then that is what they could do.
Yet in 1910, by what my noble friend Lord Wedderburn called earlier the creativity of the common law, the House of Lords said that because the 1871–76 legislation did not say that we in trade unions had the right to have political objectives, then we did not have them. So from 1910 until 1913 the infant Labour Party was starved of funds, and in 1913 a compromise was achieved. As my noble friend Lord Underhill said, it was a compromise which no similar organisation in this country has to suffer, and which trade unions in other countries do not have to suffer—a compromise which was in fact further undermined by the 1927 legislation. The remarkable thing is that in 1945–46 the Labour Party never thought to go further than to restore contracting out for contracting in. They could have put themselves precisely in the position of companies, of corporations, of those who now finance the Tory Party, the Social Democratic Party or any other party in the way that has been described. But, instead, they chose to go back to the Osborne compromise, and they chose to introduce contracting out.
Now it is being suggested that we should go back to the 1927 position. The argument against it, or in favour of it, does not turn upon the democracy inside the Labour Party, or upon how the levy is used inside the Labour Party. That is something in the first place for members of the Labour Party, with respect, and, secondly, for those enemies of the Labour Party who want to throw it at the Labour Party and throw it at the Labour Party supporters if they can find things out 646 about it which they think damage the Labour Party. But it is nothing whatever to do with how trade unions should raise money and why and how they should use that money for their political objectives.
If you compare the restrictions which are put upon trade unions—it is trade unions that we are talking about—compared with the non-restrictions which are put, for example, on companies, I say that the anomaly is in our favour. It is not in favour of any further circumscription of this position. It has been said that individuals can find out if the companies they invest in are assisting the Labour Party and they do not have to buy their products and they do not have to drink their beer and can even sell their shares; but you do not always know because institutions have been developed, like British United Industrialists, which has ceased to be a company so that it does not have to make the kind of records which no company had to make indeed until 1967, so that there is no way of telling how these organisations support the Conservative Party or any other party. Only in the case of the trade unions are there these restrictions. We have to suffer them, but I do not see why we should suffer them being made even worse.
My Lords, the amendment sponsored, as it is from different quarters of the House, has fair ruffled the feathers of the party opposite. Even the beer that the noble Lord, Lord Jenkins, drinks will never taste the same considering that he feels that he will be subscribing inadvertently to the Conservative Party. But the amendment itself does raise a very important subject, and a very controversial one, as we have heard, of the contracting out of the political levy. There are many noble Lords who are concerned about the Trade Unions Act of 1931 which enables a union to collect political contributions from members who do not take positive and specific steps of their own initiative to contract out.
The noble Lord, Lord Harris of Greenwich, made a very impressive speech with great feeling in support of this amendment. He and others like him would prefer an arrangement whereby trade unions may only collect political contributions from members who have deliberately contracted in. It was interesting that the noble Lord, Lord Rochester, concluded his speech by giving with pristine clarity a view in the direction of the Liberal Party in that he said that they neither opposed nor supported the amendment. That, at least, shows us where they are or where they are not.
§ Lord Rochester
My Lords, I can never be quite sure at this time of the night whether I actually said what I intended to say; but I think that what I said was that I found it difficult unreservedly either to support or to oppose this amendment. That is not to say that if this amendment is pressed to a Division I shall sit on the fence. I shall find it hard to make a judgment but a judgment will no doubt be made.
My Lords, that merely makes the noble Lord's position even more obfuscated than it was before. Frankly, the Government have much sympathy for the view which is expressed in this amendment, but one cannot overlook the fact (my noble friend Lord Campbell has not done so) that the present position has 647 endured for some 35 years. I do not dispute that that may not itself be a very good reason not to change it but it is a fact. The position has been studied on occasions in the past and, most recently, in the last year by a commission which was sponsored, as has been said, by the Hansard Society for Parliamentary Government.
These investigations have thrown up a number of considerations, one of which, for example, is the method of public funding of political parties. In the Government's view, this Bill is not the right occasion to give these sorts of matters the careful consideration which they deserve. If I may put it this way, the matters covered by these amendments, and the implications which flow from them, are really constitutional. Whether we like it or not, they concern the organisation of political parties. They raise issues not only of trade union democracy but of political democracy.
§ Lord Harris of Greenwich
My Lords, may I ask the noble Earl a question? Do they not also raise questions of personal freedom? As I understood it, is that not an issue which the noble Earl and his colleagues take rather seriously?
My Lords, if the noble Lord will be kind enough to let me give the Government view, he may find out what the view is. I was saying that this amendment—and I said that we had a certain amount of sympathy with it—goes considerably further and it raises the problems of not only trade union democracy but political democracy as well. I was going to say that this is pretty heavy stuff. The noble Lord, Lord Houghton, said that it deals with the financing of political parties. He is quite right; it does. In this Bill we are concerned with employment and industrial relations. The Bill is concerned with the law as it affects the individual at work in his relationship with his employer and his relationship with his trade union.
Of course, it is a peculiarity of the trade union movement in this country that it plays such a central role in our political democracy and in the fortunes of the Labour Party. In most other countries the role of the trade union movement is almost entirely industrial. It negotiates with employers on behalf of its members. Its role in relation to the Government is basically that of a lobbying organisation—and no more than that. But in this country, as the noble Lord, Lord Underhill, said, the trade union system is—whether we like it or not—unique. The trade union movement created the Labour Party, and it has continued to provide it with its finances. The result has been a very close identification of the trade unions with the policies of the Labour Party, both in and out of Government. That is a situation almost without parallel in other countries.
Many of us may feel—as many of your Lordships have expressed—that this is wrong, both in principle and in practice. It may well be. But it will, I hope, be clear that it raises very large issues indeed, issues which I do not think it would be right for us to tackle in a Bill whose whole purpose is entirely different. Nor do I believe that it would be right for Parliament to attempt to put this situation right without proper consultation and a very great deal of thought.
The amendment, as drafted, could well serve to confuse matters on this particular issue in a number of ways. For example, although the proposals involve 648 considerable changes to the operation of the existing political levy system as laid down in Section 3 of the Trade Union Act 1913, the new clause does not amend that legislation in by any means all the ways which would be necessary. We may find ourselves in the position that many of the requirements of the 1913 Act regarding the political levy will still stand in substantial contradiction to these new requirements. If so, this will cause confusion in the interpretation of the body of legislation relating to the political levy.
The clause also states that any union member who wishes to contract into the political levy must deliver notice of his willingness to do so at some time after the passing of this Act and before 1st January 1983. There is no scope for union members to contract in after 1st January 1983 or for those who join a trade union after that date to contract in. The amendment provides a short space of time during which it is possible to contract in. If this one opportunity is missed, it is lost for ever.
The question has not been considered by the many parties involved, which the remainder of the subjects in this Bill—except for Clause 1—have been. The Government's view is that the question of amendment to the political levy legislation requires very considerable thought and extensive consultation with interested parties. In the meantime, of course, any trade union member who feels that his right to contract out is being obstructed may complain to the certification officer, and I would certainly encourage him to do so. In the meantime, however strongly your Lordships may feel that the principle of the amendment is desirable—and I do not deny that many of your Lordships do—I hope that your Lordships will agree that this amendment, unconsidered by the parties involved and far-reaching as its effects would be, would really be wholly inappropriate in this Bill.
§ Lord Campbell of Alloway
My Lords, first of all I should like to thank all your Lordships who have been good enough to contribute to this debate—not so much those who have supported me but those, curiously enough, who have opposed me—because it has made this a constructive occasion, when the views of everybody interested and concerned may be aired.
On this matter I am sure the noble Lord, Lord Underhill, would accept that there was no conscious effort to dissemble in any way and that although I can see from the way this is put by noble Lords opposite—some of them—that they see this as an attack on the Labour Party, such was not the intention and would not of necessity be the long-term result. Be that as it may, it has ruffled the feathers of quite a few of your Lordships, and perhaps this evening I have ruffled enough of those feathers already. So I would wish, if I may, to accept the advice of my noble friend Lord Boardman, that this is not one of the top priorities. I would accept the advice from the Front Bench that there are constitutional matters which it would be unwise for me to seek to press at this stage without full consultation between all political parties. As the noble Lord, Lord Houghton of Sowerby, said—and I take it very much to heart—there are matters here concerning political funding and the funding of political parties that require further consideration beyond the level we have reached this evening.
649 But, above all, I should like to thank the noble Lord, Lord Harris of Greenwich, for his support of my amendment. Having said what I have said, should he divide your Lordships' House, I shall remain in my place. I would not feel it right, for the reasons I have given, to take the matter further on a Division. I beg leave to withdraw my amendment.
§ The Deputy Speaker
I will repeat that, to be quite certain. Is it your Lordships' pleasure that this amendment be withdrawn?
§ 12.35 a.m.
§ On Question, Whether the said Amendment (No. 55) shall be agreed to?
§ Their Lordships divided: Contents, 10; Not-Contents, 62.
|DIVISION NO. 5|
|Aylestone, L.||Rochester, L.|
|Harris of Greenwich, L.—[Teller.]||Seear, B.|
|Harris of High Cross, L.||Wigoder, L.|
|Kilmarnock, L.—[Teller.]||Wilson of Langside, L.|
|Airey of Abingdon, B.||Jenkins of Putney, L.|
|Ardwick, L.||John-Mackie, L.|
|Avon, E.||Lindsey and Abingdon, E.|
|Belstead, L.||Llewelyn-Davies of Hastoe, B.|
|Bishopston, L.||Long, V.|
|Boardman, L.||Lyell, L.|
|Boston of Faversham, L.||McCarthy, L.|
|Boyd-Carpenter, L.||McFadzean, L.|
|Brougham and Vaux, L.||Mackay of Clashfern, L.|
|Collison, L.||Mottistone, L.|
|Colville of Culross, V.||Mountevans, L.|
|Cork and Orrery, E.||Murton of Lindisfarne, L.|
|Crathorne, L.||Newall, L.|
|Davidson, V.||Pitt of Hampstead, L.|
|De La Warr, E.||Ponsonby of Shulbrede, L.|
|Denham, L.—[Teller.]||Rankeillour, L.|
|Dilhorne, V.||Rea, L.|
|Elton, L.||Renton, L.|
|Elwyn-Jones, L.||Sandford, L.|
|Ewart-Biggs, B.||Sandys, L.—[Teller.]|
|Faithfull, B.||Skelmersdale, L.|
|Ferrers, E.||Trumpington, B.|
|Gainford, L.||Underhill, L.|
|Gardner of Parkes, B.||Vaux of Harrowden, L.|
|Glanusk, L.||Vickers, B.|
|Glenamara, L.||Vivian, L.|
|Glenarthur, L.||Ward of Witley, V.|
|Henley, L.||Wedderburn of Charlton, L.|
|Hornsby-Smith, B.||White, B.|
|Houghton of Sowerby, L.||Young, B.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ Clause 20—[Employees' rights on insolvency of employer]:650
§ 12.42 a.m.
Lord Mackay of Clashfern moved Amendment No. 56:
Leave out Clause 20.
§ The noble and learned Lord said: My Lords, this is no more than a tidying-up amendment. Clause 20 was introduced into the Bill at Committee stage by Lord Wedderburn's amendment which the Government accepted. It is still the Government's wish to enact the substance of that clause. On reflection, however, we have concluded that it would be better to have all the amendments to the insolvency provisions of the 1978 Act together in one place and that the new provision should be relocated in Schedule 3 where readers would expect to find it. While doing this, the Government also think it would be helpful to make certain very minor modifications of a drafting nature without in any way altering employees' rights, as proposed in the clause which was moved by the noble Lord, Lord Wedderburn of Charlton. I hope your Lordships will find it possible to accept this amendment. I beg to move.
§ On Question, amendment agreed to.
§ Clause 21 [Interpretation, minor and consequential amendments and repeals]:
§ Lord Jenkins of Putney moved Amendment No. 56A:
Page 23, line 33, at end insert—
("a 'contract for the supply of goods or services' does not include a contract of employment or service;").
§ The noble Lord said: My Lords, if I may, I should like to speak to both Amendments Nos. 56A and 56B. If your Lordships agree, my intention is to move Amendment No. 56B rather than Amendment No. 56A. The reason for the two amendments on the Marshalled List is that the Government's position seems to be equivocal. Once or twice during the course of these proceedings I have tried to enable the Government to do neither more nor less than is their intention. So far, my efforts have been spurned, but I have hopes that on this occasion the Government will find it possible to accept the clarification which I attempt in these two amendments, and in particular in the case of Amendment No. 56B.
The confusion (though I think it is over now, because tonight the Lord Advocate is, I think, going to announce his clarification) which has existed in the past is exemplified in the letter which the Lord Advocate was kind enough to send me on the subject. I should like to read a passage from it. To explain this, I should say that in order to try to clarify the situation on a previous occasion I provided the Lord Advocate with a copy of an Equity standard contract so that I could possibly make clearer a point which I had made in debate. The Lord Advocate was kind enough to offer to write to me on it, and he did so. This I quote from what he said:
As I understand it—and my impression is confirmed by the standard Equity contract which you provided—the problem for Equity arises because some Equity members are employed not under contracts of employment, but under contracts for services. They are not, therefore, employees within the meaning of the legal definition. However, it is clear from the Schedules to the contract that those who work under the contracts have many of the
attributes of 'employees' and their standard contracts contain many of the elements one would expect to find in contracts of employment.
Up to that point they are employees. The letter continues:
Whatever the reason for the particular nature of these contracts the effect is to align those who work under them with self-employed contractors for the purposes of Clauses 11 to 13.
Those are two of the most extraordinary succeeding sentences. In one sentence we are told that they are employees and in the other, without any change of mood or explanation, that they have the characteristics of self-employed contractors. The Lord Advocate continues:
It would, therefore, be very difficult to exclude them from the provisions of these clauses without also excluding a wide range of businessmen whom the clauses are designed to protect.
The amendment gets the Government out of that dilemma, and I hope that on this occasion they will accept it. Amendment No. 56A deals with the possibility that the Government may be right on the first sentence. It states that,
a 'contract for the supply of goods and services' does not include a contract of employment or service.
The Government might say that that is obvious and that they accept that. But we must get down to the real nub of the matter in Amendment No. 56B which states:
a 'contract for the supply of goods or services' does not include a contract the performance of which by one party consists wholly or mainly of services which are provided solely and personally by him".
§ Your Lordships will see the point here. We are seeking to distinguish between the contractor, on the one hand, and the person who provides a personal service on the other. The person who provides a personal service is, of course, an actor. If the Government can accept this definition it will have their desired effect—I believe it is the Government's desire, although I am not sure—of not to intervene in the type of situation exemplified by Equity. There are others in a similar position, such as journalists and musicians.
§ I do not believe that it is the Government's intention to intervene in their contractual relationships. If I am right in that belief, the amendment will help the Government. If, however, I am wrong and the Government do not accept the amendment, we shall know that the Government do not seriously intend to confine themselves to contractors, and so on, but that in reality they seriously intend to intervene in the whole contractual relationship of, for example, an employer and his employee, whether it is a theatrical employee or not.
§ We can now put the matter to the test and I hope that, on consideration, the Lord Advocate will decide that Amendment No. 56B is an amendment that he can, should and will accept.
§ Lord Ardwick
My Lords, all that I can do is put even more briefly the case that I put for a similar amendment on Clause 11 which we did not manage to carry. I am concerned about the anomalous situation in a newspaper office where there is one staff divided into two parts. The majority work under ordinary contracts of employment and the minority—often a distinguished minority—work under contracts for their services. However, in both sets of contracts, in a newspaper with a union membership agreement, there is a 652 clause insisting that they shall be members of a certain trade union.
As I understand the Bill, if it becomes an Act, this is not changed. Those clauses in the contract for services will become void, whereas those in the contract of employment will remain. So the staff will be divided into two, and that is a possible cause of future unnecessary trouble. Even more important is that when an editor engages, perhaps, a "star performer" under a contract for his services, he will not be able in future to do as he has done in the past and say, "Of course, we expect you to become a member of the union, if you are not a member of the union already." That will not be in order.
That is the kind of situation which will arise, and it is repeated in a number of other offices—particularly with regard to draughtsmen. What the Government are really saying, so far as I can understand, is that they cannot distinguish between someone such as the great columnist Cassandra or the great cartoonist Vicky, who worked under contracts for their services, and people from the outside who have contracts for cleaning the windows of the newspaper office or for servicing the lift. Yet these are very different kinds of service performed in very different ways. Neither the window cleaners nor the lift people are on the staff and are not employees in any sense. Surely there should be some way of distinguishing between them. I believe that my noble friend Lord Jenkins of Putney has found a way that I hope will be acceptable to the Government.
§ Lord Wedderburn of Charlton
My Lords, I rise only to say that this is ground which we have covered in part before but not in quite the way that my noble friend suggests. There are clear precedents for employment, meaning in statutes the inclusion of those contracts of service and contracts for services—as in the Companies Act—for dealing specially with the problem of workers in these areas, as in British Actors Equity and the Musicians' Union; who are specially provided for, for instance, in the safety regulations by name because of this problem. The Government have a problem which they have created and made worse by the new Clause 12. If they genuinely do not want to see the established industrial patterns which are prized by employers, trade unions and workers on both sides of the table in these industries, fragmented under the threat of these clauses, then they should carefully consider whether or not to accept my noble friend's amendment.
§ 12.53 a.m.
§ Lord Mackay of Clashfern
My Lords, as has been said, this is ground we have covered already. The noble Lord, Lord Jenkins of Putney, was good enough to read out the letter I sent to him, which makes the position reasonably plain. I do not have much to add to that so far as Amendment No. 56A is concerned. The noble Lord has concentrated on Amendment No. 56B, and so far as I have understood this amendment, it does not distinguish between Cassandra and Vicky on the one hand and the window cleaners and lift people on the other. It seeks to exclude from contracts for the supply of goods or services contracts the performance of which wholly or mainly involves one party providing personal services for the other.
653 I am afraid that this creates exactly the same difficulty as Amendment No. 36 to Clause 11. It is not just journalists or actors who contract to provide personal services for an employer—it is a whole range of other self-employed people; the freelance artist or designer (whom the noble Lord, Lord Wedderburn of Charlton, mentioned), the one-man hauliers, the self-employed plumber, the building contractor, the window cleaner, the lift serviceman, and so on, whom Clause 11 is specifically designed to protect.
In other words, if we accept Amendment No. 56B we will be giving an open invitation to companies and trade unions to prevent a wide range of self-employed people from obtaining work on the grounds that they were not trade union members. I said in our debate on Amendment No. 36 that because it was impossible to distinguish between the actors' and journalists' contracts for services and the contracts of services under which other self-employed people work, it followed that it was impossible to exempt actors and others from Clause 11 in the way that the noble Lord has proposed. I am afraid that this is equally true of Amendment No. 56B.
To take up the point which the noble Lord, Lord Wedderburn of Charlton, made, this amendment does not seek to distinguish between particular groups and others by naming, for example, actors or musicians. Although, like the noble Lord's earlier amendments, it arises from his specific concern, its effects would go much wider. I take it from the way the noble Lord frames his amendment that he does not favour specific exemption of the kind the noble Lord, Lord Wedderburn, had in mind. To sum up, Amendment No. 56A is unnecessary in our view, and No. 56B is unacceptable for the reasons I have explained. As I say, we have covered this ground before, and in the light of these explanations I hope the noble Lord will feel able not to press his amendment.
§ Lord Jenkins of Putney
My Lords, I think the reply of the noble and learned Lord the Lord Advocate was somewhat legalistic. In reality who is going to ask a jobbing gardener or a window cleaner to join a trade union? The circumstances will arise only in the conditions which my noble friend and I have indicated, where there is a contractual agreement between an employers' association and a trade union that all persons working in that area shall join the appropriate organisation be it the employers' association or the trade union. The breakdown of that system would be disastrous.
I rather deprecate, if I may, the rather throw-away attitude which the noble Lord brought to this matter. He seemed to say that because we have gone over the ground before we need not bother too much about it. If 56A is acceptable, would he accept it? It at least clarifies the matter to some degree. As far as 56B is concerned, will he say if he does not like the wording that he will endeavour to do what he says I have failed to do. Will he say, "There is a real problem here which we have created, and since you have failed to find a way to deal with it we will take upon our shoulders the responsibility of finding a way out"? That is what we ask the Lord Advocate to do.
§ On Question, amendment negatived.654
§ Lord Jenkins of Putney moved Amendment No. 56B:
Page 23, line 33, at end insert—
("a "contract for the supply of goods or services" does not include a contract the performance of which by one party consists wholly or mainly of services which are provided solely and personally by him;").
§ 12.58 a.m.
§ On Question, Whether the said amendment (No. 56B) shall be agreed to?
§ Their Lordships divided: Contents, 17; Not-Contents, 45.
|DIVISION NO. 6|
|Ardwick, L.||Hastoe, B.—[Teller.]|
|Bishopston, L.||McCarthy, L.|
|Boston of Faversham, L.||Pitt of Hampstead, L.|
|Collison, L.||Ponsonby of Shulbrede, L.—[Teller.]|
|Ewart-Biggs, B.||Rea, L.|
|Jeger, B.||Underhill, L.|
|Jenkins of Putney, L.||Wedderburn of Charlton, L.|
|John-Mackie, L.||White, B.|
|Airey of Abingdon, B.||Hornsby-Smith, B.|
|Avon, E.||Kilmarnock, L.|
|Belhaven and Stenton, L.||Lindsey and Abingdon, E.|
|Belstead, L.||Long, V.|
|Boardman, L.||Lyell, L.|
|Brougham and Vaux, L.||Mackay of Clashfern, L.|
|Campbell of Alloway, L.||Mottistone, L.|
|Cathcart, E.||Mountevans, L.|
|Chelwood, L.||Murton of Lindisfarne, L.|
|Colville of Culross, V.||Rankeillour, L.|
|Cork and Orrery, E.||Renton, L.|
|Crathorne, L.||Rochester, L.|
|Davidson, V.||Sandys, L.—[Teller.]|
|De La Warr, E.||Seear, B.|
|Denham, L.—[Teller.]||Skelmersdale, L.|
|Dilhorne, V.||Tordoff, L.|
|Elton, L.||Trumpington, B.|
|Faithfull, B.||Vaux of Harrowden, L.|
|Ferrers, E.||Vickers, B.|
|Gardner of Parkes, B.||Wigoder, L.|
|Glanusk, L.||Wynford, L.|
|Glenarthur, L.||Young, B.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ Schedule 3 [Minor and consequential amendments]:
§ 1.5 a.m.
Earl Ferrers moved Amendment No. 56C:
Page 34, line 26, at end insert ("and").
§ The noble Earl said: My Lords, this is a technical amendment. I beg to move.
§ On Question, amendment agreed to.
§ Lord Mackay of Clashfern moved Amendment No. 57:
Page 35, line 18, at end insert—
("2A. For subsection (2) of section 122 of the 1978 Act
(definition of "relevant date" in relation to certain debts due from insolvent employers to their employees) there shall be substituted the following subsection—
(2) In this section the 'relevant date', in relation to a debt, means whichever is the latest of—
§ The noble and learned Lord said: My Lords, I spoke to this in relation to Amendment No. 56. It is consequential to that. I beg to move.
§ On Question, amendment agreed to.
Earl Ferrers moved Amendment No. 58:
Page 36, line 9, leave out from ("tribunals") to ("shall") in line 10.
§ The noble Earl said: My Lords, in moving this amendment, I should like to speak to Amendments Nos. 59 and 60 as well. This amendment empowers the Secretary of State to make provisions for interest to be payable on awards and decisions of the Employment Appeal Tribunal. If provision is to be made for interest to be payable on awards which are made by industrial tribunals, as in paragraph 6 of Schedule 3, it seems right that provision should also be made in respect of awards and decisions of the Employment Appeal Tribunal. I beg to move.
§ The Deputy Speaker (Lord Aberdare)
My Lords, is the noble Earl moving all three amendments en bloc?
§ On Question, amendment agreed to.
§ Earl Ferrers moved Amendment No. 59:
Page 36, line 28, at end insert—
("(dd) to make provision for cases where sums are payable in pursuance of decisions or awards made on appeal from industrial tribunals;").
§ On Question, amendment agreed to.
§ Earl Ferrers moved Amendment No. 60:
Page 36, line 46, at end insert—
("7A. In paragraph 21A of that Schedule (enforcement of awards of Employment Appeal Tribunal under section 5 of the 1980 Act) after sub-paragraph (2) there shall be added the following sub-paragraph—
(3) Any sum payable in pursuance of an award of the Appeal Tribunal under section 5 of the Employment Act 1980 shall be treated as if it were a sum payable in pursuance of a decision of an industrial tribunal for the purposes of paragraph 6A of Schedule 9 (interest on industrial tribunal awards).".").
§ On Question, amendment agreed to.
Earl Ferrers moved Amendment No. 60A:
Page 38, line 14, leave out paragraph 13.
§ The noble Earl said: My Lords, this amendment would remove paragraph 13, which is now unnecessary. I beg to move.
§ On Question, amendment agreed to.656
§ Earl Ferrers moved Amendments Nos. 60B and 60C:
Page 39, line 1, after ("71(2)(a)") insert ("and (5)").
line 3, after ("substituted") insert ("in each case")
§ The noble Earl said: My Lords, both these amendments are purely technical amendments, consequential upon the introduction of the special awards in Clause 4 of the Bill. I beg to move these two amendments en bloc.
§ On Question, amendments agreed to.
§ Schedule 4: [Repeals].
§ [Amendment No. 61 not moved.]
§ In the Title:
Lord Rochester had given notice of his intention to move Amendment No. 61A:
Line 1, after ("Act") insert ("to develop employee participation;").
§ The noble Lord said: My Lords, I should simply like to take this opportunity to remedy an omission from my response to the noble Earl, Lord Ferrers, this afternoon and to thank him for the courtesy he showed in giving me private notice of what he would say. This enabled me to make a more considered response than would otherwise have been the case. I appreciated his courtesy in doing that and simply wanted to place that fact on the record. Having said that, I do not wish to move this amendment.
§ [Amendment No. 61A not moved.]
Earl Ferrers moved Amendment No. 62:
Line 6, after ("tribunals") insert ("and awards by").
§ The noble Earl said: My Lords, this amendment is consequential upon Amendments Nos. 58, 59 and 60. As this is the last amendment on this particular stage of the Bill, I wonder whether I can take the opportunity of thanking your Lordships for the assiduous, careful and, if I may say so, charming way in which your Lordships have considered this Bill. I wonder also if, on behalf of noble Lords in all parts of the House, I might thank the officers and servants of the House who, with their usual cheerfulness and courtesy, have accepted the privations of getting home late, particularly tonight, and who have again demonstrated their loyalty to their duty of serving the House. This is a duty which we are often too apt to take for granted. When one thinks particularly of those who stay on after your Lordships have gone home to complete their work, such as the people who look after the Official Report, which then appears on our breakfast table, a complete Daily Part, the next morning, it is one of the most remarkable things that happen.
§ I do not know whether it was in anticipation of the holidays or the exhaustion of the House when we witnessed the unusual spectacle this evening of a Deputy Speaker, not surprisingly, giving somewhat confused directions. One noble Lord was heard to advise him afterwards, I assume in a sense of frivolity, that what he ought to have said was, "The Contents will sit on the steps of the Throne, and the Not-Contents will go to the bar"!657
§ As your Lordships go out and dust down your buckets and spades, and the noble Lord, Lord McCarthy, will take on to the beach his copy of Professor Gennard, which he has the privilege of seeing and which he will know we have not yet read, I should like to wish your Lordships, on behalf of all my noble friends on this side of the House, a happy, relaxed, and well deserved Recess.
§ Lord McCarthy
My Lords, I should like from this side of the House to join with the noble Earl in all that he said about the staff and the wonderful work that they have done for us, and will go on doing for us, and to join with him in all he said about this debate. It has been a well-tempered debate. It has been a long night, and I do not intend to keep you here any longer. We have not moved the elephant, but at least we have pulled his tail.
§ Lord Wigoder
My Lords, might I say that I have thought many times in the last two months of the words of the noble Baroness, Lady Young, during 658 the debate on the Queen's Speech last November, when she said, "After two busy Sessions, I can certainly say that the volume of legislation will be less". There must be some sort of Parkinson's Law—and I do not mean her right honourable friend in another place—that prescribes the fewer the Bills, the longer the speeches. However, may we on these Benches also say how grateful we are to all members of the staff for their willing support during what has not been an easy period, and how much we look forward to seeing our colleagues in all parts of the House returning in October revived and refreshed by an enjoyable Recess.
§ Lord Kilmarnock
My Lords, may I associate myself and my absent friends from this Bench with all the remarks that have been made concerning the marvellous back-up we have had in this House, and the unfailing courtesy we have had from the Government Front Bench during the course of the various stages of this Bill.
§ On Question, amendment agreed to.