§ Consideration of amendments on Third Reading resumed.
§ Clause 6 [Proceedings before Certification Officer: supplementary provisions]:
§ 5.16 p.m.
§ Lord Wedderburn of Charlton moved Amendment No. 5:
Page 7, line 23, at end insert—
("() An appeal shall lie in accordance with section 136(2) of
the Employment Protection (Consolidation) Act 1978, to the Employment Appeal Tribunal on any question of law arising in any proceedings before or arising from any declaration of the Certification Officer under section 5 of this Act.").
§ The noble Lord said: My Lords, this amendment aims to remedy what we see as a defect in the procedure before the certification officer where a member of a union complains to him, as he now can under the new clauses inserted so recently by the Government, in respect of a breach of Part I of the Bill. The member is the only party with locus standi to complain. As pointed out many times in the short time that we have had to debate these clauses, he can complain first to the certification officer but, without any obstacle, he can also, secondly, complain to the court. He has two possible cumulative procedures, and the trade union has no procedure under the Bill whereby it can take any step.
§ The certification officer, whom the noble Earl on Report, at column 1117, insisted was not a judge—and elsewhere he spoke of the suggestions of the certification officer—has the power to make a declaration, and that is a legal remedy. It is a legal remedy of great importance, as illustrated in the High Court only in these last few days. We say that the position is unfair. We have said it before. Here, however, we come to a much more limited way of trying to redress one aspect of the unfairness. It is, of course, true that both the member and the trade union, faced with a decision by the certification officer which they think is wrong in law, could go to the High Court or might go to the High Court, perhaps to put it more accurately, to ask for a judicial review of the certification officer's judgment and decision. The member can; the union can. But that is a quite different procedure, in many ways a difficult procedure. It is certainly not one that is within the compass of this Bill. Indeed, it is not one on which the noble Earl the Minister relied. That was not his suggestion for the answer to the problem. What does a union do if it is advised, on good advice, that a decision of the certification officer is wrong in law?
The scenario painted by the noble Earl, his solution to the problem, at column 1118 of 12th July, was that,
the union therefore presumably would not give way to the suggestions of the certification officer. The applicant would remain aggrieved and would go to the High Court. The High Court could then find in favour of the union".
§ I cannot believe, on reflection, that the noble Earl would wish that to be the Government's final position. I have already made the point that the word "suggestion" was a slip because we are not talking about the certification officer's suggestion. We are talking about this declaration and his reasons for the judgment. He is allowed also to make written observations. We have dealt with that previously in debate. It is his declaration and his reasons that the union faces, and the union believes they are wrong. The noble Earl says that the trade union need not comply and can wait for the member to go to the High Court, which may set it right.
§ But if the union does not comply with the declaration and reasons of the judgment of the certification officer, what kind of reception will it be given? How the media and the drawing rooms of Surrey will resound to the condemnation of this law-breaking 1518 union! What can we expect to find in the press, in particular in the Daily Telegraph, that upper crust of the trivial press? What will it be saying? It will be saying, "This is a monstrous breach of the law by a union that will not abide by the decision of the certification officer." Of course it will, and in a sense it will be right. It is not the advice that I would give a union. I would say, "You have got a declaration; it looks as though you've got to abide by it, and if you say it's very unfair because you can't appeal, we'd better try judicial review because that is all the Government have left for you".
§ There is a better way; there is a more just way; there is an easier way; there is a cheaper way. On all those grounds, the proposal which my noble friends and I make is surely one that the Government must consider. It is the one which is adopted in all previous legislation of the last decade or so. Since we have had the employment appeal tribunal we have given rights of appeal on points of law from judicial decision of the certification officer to both parties in a dispute before him, to the employment appeal tribunal. Indeed, those rights of appeal were given with the support of the Conservative Party in the legislation of the Labour Government. They were inserted into the 1964 Act; they were inserted into the 1913 Act. Nobody seemed to think they were a bad idea.
§ The Government's own legislation had extended appeals to the EAT, as it is usually known. It is tripartite, with a High Court judge and employer and trade union representative. Compared with most legal procedures, it is reasonably cheap; it is informal; it is swift; it has a good reputation among lawyers for taking care, despite speed, with the difficult issues with which so often it is faced.
§ I say to my noble friends that this amendment is not an attempt to embroil trade unions with yet another court. At this stage of the Bill it is the only way which we can see—I put it to the Government that surely it is the right way—of redressing a situation which at the moment is unfair to a union faced with a mistaken decision by the certification officer. Any court can get a matter wrong in law, as I am sure the Government are hoping at the moment, and these matters have to be set right by appeal. Surely the right appeal to have is to a cheap tribunal, to a good tribunal, to the tribunal to which, in every other Act, the certification officer's judgment can be appealed by both parties. I beg the Government to consider this matter most carefully. I beg to move.
§ Lord Denning
My Lords, I would ask the Government to view with sympathy this proposed amendment. To recapitulate a little, this Bill, as it now is, and the Act that it will become, will put upon the union very stringent measures and safeguards it is to take if it is to hold a workplace ballot or if it is to have a postal ballot. The safeguards put into the Bill are very stringent.
Let us assume that a person, a member, complains that the union has not fulfilled its duty; it has not conducted the workplace ballot properly; it may not have sent things by post, and so forth. At all events, we have a position where a member complains against the union that it has not fulfilled its duty. What is the remedy? Under the Bill he can complain to the court 1519 or the certification officer. One does not complain if it is a case of being able to complain to the certification officer. It will be a much more informal procedure, and much less costly. He can simply send a letter to the certification officer asking him to look into the matter.
The certification officer can make his own private inquiries. He need not hear either side. He can come to a decision, and—this is the important thing—he can make a declaration that the trade union has failed to perform its duties. That is a judicial declaration. If the man is disappointed with that, or if the certification officer refuses to make a declaration, the man can go to the court. He can go to the High Court to have the whole thing gone into again, virtually on an appeal from the certification officer. That is what the man who is aggrieved can do.
Consider the position of the union, on the other side. Suppose the declaration is made against the union, saying that it has not fulfilled its duty, and the trade union wants to complain against that. There is no appeal given to the union against that certification officer's decision. My noble friend Lord Wedderburn suggested that there might be a judicial review. I do not think so. The remedy of judicial review would be very difficult to maintain against a certification officer, because he is given the power to act unjudicially. He can make such inquiries as he thinks fit; so he can hear evidence behind the other person's back, or the union's back. He need not consider both sides. He can give an applicant or a trade union an opportunity to be heard, if he considers fit. He can conduct a most unjudicial inquiry. It seems to me that those powers, given in a statute, do a great deal to remove any possibility of judicial review.
So we have this position. The certification officer, after looking into the facts, has found that the trade union has broken the rules, has failed to do its duty in holding these ballots. Has the union no appeal? The man has, or the member who complains has; he can go to the court. But under these provisions, as they stand at the moment, the trade union has no appeal. That is why I welcome the suggestion that is made. It should be given an appeal. As my noble friend Lord Wedderburn says, for many other decisions of a certification officer the statutes have provided for an appeal to a permanent appeal tribunal, which is a High Court judge with two assessors beside him.
It seems to me that this is a remedy that the trade union ought to have. If a certification officer makes a declaration against it, it ought to be able to appeal against it; and a very appropriate appeal tribunal is the employment appeal tribunal, as suggested by this amendment. I should like to point out that this is brought in only on Report, and the whole thing has got to be considered. I hope that the Government will think again and give an appeal on the lines suggested in the amendment.
§ Baroness Seear
My Lords, for the reasons put so impressively by the noble and learned Lord, Lord Denning, we on these Benches also hope that the Government will accept this amendment.
§ 5.29 p.m.
The Earl of Gowrie
My Lords, I have listened most carefully to what the noble Lord, Lord Wedderburn, said in moving the amendment and the support which he received from the noble and learned Lord, Lord Denning, as well as the noble Baroness. But I must say that I am still a little bit puzzled as to why we should be seeking, as the amendment does, to provide a specific right of appeal against what is a non-enforceable declaration.
It may be helpful to consider the two situations which might result from an application to the certification officer under what is now Clause 5 of the Bill. The first situation is where the certification officer makes no declaration, either because he finds against the applicant or because he simply has insufficient evidence to reach a decision. If we assume a case where the union has co-operated with the certification officer and answered all his inquiries to the best of its ability, then the reason for the certification officer refusing to make a declaration would almost certainly be that in his view the complaint was unfounded. He would then be obliged under Clause 6(2) to express his reasons in writing. So clearly in these circumstances the union would have neither wish nor need to appeal.
The second situation is where the certification officer finds in favour of the applicant; that is, he makes a declaration specifying one or more requirement of Part I of the Bill with which the union has failed to comply in relation to an election. Even in this situation the question of an appeal would only arise if the union disagreed with the certification officer's declaration. I think that that would be common ground. If the union accepted that it had infringed the legislation it would presumably agree to put that infringement right. The noble Lord, Lord Wedderburn, was quite right when he said at Report stage that there would be a strong moral obligation on the union to respond to a declaration by the certification officer and, of course, that is precisely the purpose of the provision.
But let us take the case where a union genuinely believes—in a case where the certification officer has found against it—that it (the union) has not breached the requirements of the Bill and the union genuinely believes that the certification officer has reached a wrong conclusion. In those circumstances the union clearly has the option of standing its ground. The certification officer is not empowered to order the union to re-run the election or, indeed, empowered to do anything else whatever—that is the prerogative of the courts. The certification officer has no power to order any change in the status quo.
In such a situation it may well be that the union member would proceed with his declaration to the courts. But where this happened the union will, of course, be given a full opportunity to defend itself and the court could well find in its favour. I would say to the noble and learned Lord in particular that therefore there is no question, in our view, of the trade union being unfairly treated vis-à-vis the applicant.
Lord Wedderburn's amendment seeks to draw a parallel between the new functions which have been given to the certification officer in respect of union elections and his existing functions in respect of 1521 amalgamations and political funds—and he made much of that in his speech. But in our judgment the parallel is simply not a valid one, because under the earlier Acts the certification officer does have the power to make enforceable orders remedying breaches of the statutory requirements, and it is therefore wholly right—as the noble and learned Lord implied—indeed, it is essential, to provide a right of appeal to the employment appeal tribunal. By contrast the role of the certification officer under this Bill is, if I may so put it, simply to try to secure an out-of-court settlement which will be quick, informal and, above all, inexpensive to the applicant and the union. It is for precisely this reason that the certification officer has not been given order-making powers, and consequently the union cannot be ordered to take action against which it might wish to appeal.
I hope, therefore, that, on the basis of that explanation and of the fact that the certification officer does not have powers in this case, the noble Lord will see that his amendment is not really necessary.
§ Lord Wedderburn of Charlton
My Lords, it really is a little difficult to know how to deal with the Government's attitude to these matters. I am very grateful for the support which has been given to this amendment by the noble Baroness, Lady Seear, and the noble and learned Lord, Lord Denning. Perhaps the noble and learned Lord put the case higher than I put it. I listened very carefully to him and I am rather distressed to consider his view, which he expressed strongly, that judicial review would not be open. I can see the argument. If judicial review is not open, then the union is left totally without any right of appeal against a decision which ex hypothesi—and that is what we are discussing—is wrong in law.
The noble Earl spent some time with the case where the certification officer makes no declaration or where the trade union complied and did not disagree. Of course, that is all right, but that is not this case. We are dealing with the case where the certification officer makes a declaration and the trade union does not just take the view that it is wrong, but is advised on good grounds by competent advisers that it is wrong, and it wants the chance to challenge it.
The Government have recently made great play of the right of appeal. The Prime Minister says that the right of appeal is the right of anyone faced with a decision which may be wrong in law—but not the trade unions, they are different. With great respect, the noble Earl is ill-served because his description of a declaration was not that which I made on Report although I do not have the words with me, but if I did so describe it then I shall now revise it. I thought that I had said that the jurisprudence experts debated whether or not a declaration rested ultimately in a moral or legal base. But of course as a practical matter people are expected to act in accordance with the declarations of the courts or any other body which has the power to make—as the noble and learned Lord pointed out—a declaration as a judicial remedy.
This declaration is on the same footing as any other declaration. I wonder whether the noble Earl would advise anybody who came to him for advice and against whom the noble and learned Lord, Lord Denning, when he was a High Court Judge, had made 1522 a declaration, saying; "Well, you need not bother about that; that is just based on morality. Do not bother with that. If somebody attacks you say, 'I will challenge that when I can"'. Of course, he would criticise somebody who acted in that way. He and the Government and their advisers are deliberately putting the trade union in the position where—given advice that the decision, declaration and reasons by the certification officer are wrong and, given that the noble and learned Lord may well be right and that there is no judicial review open to it—the trade union can be none other than a law-breaker in the eyes of the country, because the declaration, albeit that it cannot be followed by enforcement measures as such—
§ Lord Wedderburn of Charlton
I shall finish the sentence. It is a declaration which has legal effect. The idea that declarations have no legal effect in the broad sense went out with Professor Zamir's book on declarations. Unhappily I do not have that book with me to cite the date but I believe that it came out in 1962. The idea that declarations are some vapid froth on the procedures of courts and tribunals went out a long time ago.
I point out to the noble Earl that it is not right to say that there were special reasons in the 1913 and 1964 Acts for giving an appeal on points of law to the EAT from the certification officer. There are appeals in every case where he makes a decision. Let the noble Earl cite to me a judicial role or a mixed role, because, as the noble and learned Lord says, this is a very mixed role. But where he occupies the place of making a legal sanction or of giving a legal remedy then there is an appeal on a point of law to the employment appeal tribunal. We were very careful about that.
Why cannot the Government show the elementary fairness that they expect from other people but which, unhappily, they do not always show to trade unions? Does the noble Earl wish to ask a question?
The Earl of Gowrie
My Lords, I am most grateful to the noble Lord, Lord Wedderburn. I simply feel that he has not dealt with the central point of my argument; namely, that we are not dealing with the certification officer in a judicial position here; he has no enforcing powers. We are dealing with him, if you like, as an honest broker. If he cannot perform his job of providing a quick and cheap out-of-court settlement by getting the parties together, there is no need to have this mechanism of appeal. The noble Lord is confusing the role of the certification officer in the Acts with which he was concerned and which remain on the statute book, with the role being suggested for him—I should have thought rather practically and sensibly—in the case of elections.
§ Lord Wedderburn of Charlton
My Lords, I think I have to put the matter to the noble Earl in this way. I respect his view but he is always saying to me that he is not a lawyer and, therefore, I must say to him that he must be badly advised. This is a legal point. He has said that the certification officer is not in a judicial position because he has no powers of enforcement. Being in a judicial position does not depend upon 1523 having ultimate powers of enforcement. It depends on having the power to declare the legal rights of the parties. After that, different forms of enforcement may follow.
Let me take the case of Mr. Justice Megarry—Sir Robert Megarry, the Vice-Chancellor, as he now is—who at the moment (and I shall not comment on the proceedings) is involved in proceedings where 17 working miners are, among other things, asking for declarations in this court. If he gives a declaration without any further enforcement, as is done in many trade union cases, will the noble Earl say that the Vice-Chancellor has ceased to be a judge and become an honest broker? Of course he will not, because the man is sitting there stating legal rights and legal duties.
The noble Earl has misunderstood the position of the certification officer, and the reason that he has misunderstood it is clear—because the Government have put the certification officer into such a variety of roles that it is very hard to know exactly when he is what. All I am clear about—and this is the legal point—is that whatever he is when he is investigating, and whatever he is when he is making his written observations, when he gives that declaration and states his reasons for it that is a declaration, stated to be a legal declaration by statute by this House, by this Parliament, and that is in the same nature as any other declaration which in all the books today is a legal remedy.
I say, surely the Government will give to trade unions what every other person in the land expects: the right, not to appeal on facts (I am not asking for a right of appeal on the facts) but the normal right to appeal on a point of law. This is the last chance in this House for the Government, faced with the arguments of the noble and learned Lord and the noble Baroness, to show whether they will be fair or unfair to trade unions.
§ Lord Houghton of Sowerby
My Lords, I should like to make a brief comment. We are all in the difficulty that the certification officer was brought into this role at a very late stage in the debates on this Bill. If we had had this important proposal before us at the Committee stage, we could have gone into it more freely than we were able to do on Report. But the certification officer has been dragged into this quite late in the day and it makes it very difficult to deal with all the implications of his new role.
I believe that I said earlier that the certification officer was not appointed for this role and did not have this role in connection with his other function. He was a handy tool to be used for the purpose prescribed for him in the Bill; he was just on hand. He dealt with trade unions for other purposes, and so the Government decided to grab him to deal with another purpose.
The difficulty here is that the Government cannot expect to have it both ways. If there is not a right of appeal against a declaration by the certification officer, if his role is really advisory and possibly conciliatory, that means that it is a different status for him. But under Clause 5 it says:Any person who claims that a trade union has failed to comply … may apply to the Certification Officer or to the court for a declaration to that effect".1524 It is the word "declaration" which puts the role of the certification officer on a judicial footing, because it says in that clause that a person can get a declaration from either a certification officer or a court.
I fully understand the arguments advanced by the noble Earl. The only point I want to make is that I believe the certification officer is in a false position here. Under the Bill he has a status in terms which he ought not to have. If he has such a status, there ought to be the right of appeal against the declaration, and if he does not, then the word "'declaration" in the context of the certification officer should be demoted to that of "advice" or "other functions", so as to overcome the need to go to a court to remedy a comparatively minor complaint. That is my point here and I believe that it is one of substance.
The Earl of Gowrie
My Lords, perhaps I may make a comment which might give the noble Lord, Lord Houghton, some comfort. It really is the case that if a union felt desperately aggrieved by a declaration by the certification officer—and, of course, the noble Lord, Lord Houghton, understands the position in which I was casting the certification officer: of trying to achieve a quick, speedy and inexpensive solution in the context of elections as against his other jobs—despite the fact that the certification officer had not ordered it to take any remedial action, because he is not so empowered to do, the union could of course apply to the courts for judicial review.
Therefore, it is not a question of judicial review being out of court, so to say, in this context. But if I were a trade union, I should prefer to avoid the expense of judicial review and leave defending myself until such time as the union member re-opened the matter in the courts. I am a little puzzled at the reception that this has had because I am constantly being urged by noble Lords on the other side of the House to try wherever possible to get sensible industrial relations arrangements without recourse to law.
In respect of what was said to me by the noble Lord, Lord Wedderburn—who cited Sir Robert Megarry—the difference surely is that Sir Robert can go on to enforce his declaration by making an order. It is common ground that in this case it is not possible for the certification officer to do that. If the noble Lord, Lord Houghton, and others will kindly read what I said in my opening remarks in response to this amendment, they will see that we are simply trying to achieve a sensible solution. Where the certification officer cannot get the parties to agree, then an ordinary legal process follows, and no one should object to that.
§ Lord Wedderburn of Charlton
My Lords, with leave, perhaps I may address the noble Earl's last remarks and say what we want to do with this amendment, because the Government have had their opportunity. My noble friend Lord Houghton surely put it to the Government straight: either put the certification officer back into the position of giving advice—no doubt strong advice—or, if he is to have this power of judgment (which is what a declaration is), let there be the normal appeal. It is as simple as that. The noble Earl, having heard the noble and learned Lord say that, in his judgment, there probably 1525 could not be an application for judicial review, came back and spoke about a trade union being desperately aggrieved by a certification officer's declaration, and, without citing authority, said confidently that there could be an application.
Where are we when the noble and learned Lord, Lord Denning, and the noble Earl, Lord Gowrie, disagree on the issue of whether there could be judicial review? Anyway, why should the Government leave it to judicial review? The noble Earl has not addressed the central point. It is unfair to ask a union which faces a certification officer's declaration, which is a legal remedy, on the hypothesis which may arise (and is certain to arise some time) that the certification officer is wrong in law, to wait until the member goes to the High Court for his second bite at the cherry and there raise the question of law when it suits him.
It is wrong for two reasons. It is wrong because in that intervening space the union has to decide what to do and has to face the criticism of not taking the steps which the certification officer says should be taken. If it takes those steps, then the point of an appeal is half lost. Secondly, it is wrong in principle that the union should have to wait to argue the point of law when it suits the member to take it to the High Court. What kind of justice is that?
We shall press this amendment only if the noble Earl cannot give us any kind of undertaking to consider this matter, because it is such an important practical issue, it is such an important issue of justice, and it is such an important issue for the Government's own face when noble Lords read Hansard. We should prefer, if possible, not to press the amendment, but we shall press it.
The Earl of Gowrie
My Lords, I was saying only that in my view the noble Lord, Lord Wedderburn, has blown this question out of all proportion. If the House considers the remarks that I made in my opening speech, it will come to that view.
§ 5.49 p.m.
§ On Question, Whether the said amendment (No. 5) shall be agreed to?
§ Their Lordships divided: Contents, 82; Not-Contents, 137.1527
|DIVISION NO. 2|
|Airedale, L.||Diamond, L.|
|Ampthill, L.||Donaldson of Kingsbridge, L.|
|Ardwick, L.||Donnet of Balgay, L.|
|Attlee, E.||Elwyn-Jones, L.|
|Aylestone, L.||Ennals, L.|
|Beaumont of Whitley, L.||Ewart-Biggs, B.|
|Blease, L.||Foot, L.|
|Blyton, L.||Gaitskell, B.|
|Bottomley, L.||Galpern, L.|
|Briginshaw, L.||Graham of Edmonton, L. [Teller.]|
|Brooks of Tremorfa, L.|
|Burton of Coventry, B.||Grey, E.|
|Carmichael of Kelvingrove,||Grimond, L.|
|Cledwyn of Penrhos, L.||Hampton, L.|
|Collison, L.||Hatch of Lusby, L.|
|Craigavon, V.||Hayter, L.|
|Dean of Beswick, L.||Houghton of Sowerby, L.|
|Denning, L.||Hughes, L.|
|Jeger, B.||Raglan, L.|
|Jenkins of Putney, L.||Rhodes, L.|
|John-Mackie, L.||Richardson, L.|
|Kirkhill, L.||Rochester, L.|
|Listowel, E.||Ross of Marnock, L.|
|Lloyd of Hampstead, L.||Seear, B.|
|Lloyd of Kilgerran, L.||Serota, B.|
|Longford, E.||Stallard, L.|
|Lovell-Davis, L.||Stamp, L.|
|McCarthy, L.||Stewart of Alvechurch, B.|
|McIntosh of Haringey, L.||Stewart of Fulham, L.|
|Mackie of Benshie, L.||Stoddart of Swindon, L. [Teller.]|
|Melchett, L.||Stone, L.|
|Milford, L.||Strabolgi, L.|
|Mishcon, L.||Taylor of Mansfield, L.|
|Mulley, L.||Tordoff, L.|
|Nicol, B.||Underhill, L.|
|O'Brien of Lothbury, L.||Wallace of Coslany, L.|
|Ogmore, L.||Walston, L.|
|Oram, L.||Wedderburn of Charlton, L|
|Perry of Walton, L.||Wells-Pestell, L.|
|Phillips, B.||Winstanley, L.|
|Ponsonby of Shulbrede, L.||Winterbottom, L.|
|Ailsa, M.||Halsbury, E.|
|Alexander of Tunis, E.||Harvington, L.|
|Allerton, L.||Henley, L.|
|Balfour of Inchrye, L.||Hives, L.|
|Bauer, L.||Home of the Hirsel, L.|
|Belhaven and Stenton, L.||Hood, V.|
|Bellwin, L.||Hornsby-Smith, B.|
|Belstead, L.||Hunter of Newington, L.|
|Bolton, L.||Hylton-Foster, B.|
|Boyd-Carpenter, L.||Inglewood, L.|
|Brabazon of Tara, L.||Ironside, L.|
|Brougham and Vaux, L.||Kaberry of Adel, L.|
|Buckinghamshire, E.||Killearn, L.|
|Caccia, L.||Kilmany, L.|
|Campbell of Croy, L.||Kinloss, Ly.|
|Carthcart, E.||Kinnaird, L.|
|Chelmer, L.||Kinnoull, E.|
|Chelwood, L.||Kitchener, E.|
|Chesham, L.||Lane-Fox, B.|
|Cockfield, L.||Lauderdale, E.|
|Coleraine, L.||Lawrence, L.|
|Colwyn, L.||Lindsey and Abingdon, E.|
|Cox, B.||Lloyd-George of Dwyfor, E.|
|Craigton, L.||Long, V.|
|Cranbrook, E.||Lucas of Chilworth, L.|
|Cross, V.||Lyell, L.|
|Daventry, V.||McAlpine of West Green, L.|
|De Freyne, L.||McFadzean, L.|
|De L'Isle, V.||Macleod of Borve, B.|
|Denham, L. [Teller.]||Mancroft, L.|
|Dilhorne, V.||Margadale, L.|
|Donegall, M.||Marley, L.|
|Dormer, L.||Marshall of Leeds, L.|
|Drumalbyn, L.||Massereene and Ferrard, V.|
|Eden of Winton, L.||Maude of Stratford-upon-Avon, L.|
|Elliot of Harwood, B.||Merrivale, L.|
|Elton, L.||Milverton, L.|
|Enniskillen, E.||Molson, L.|
|Fanshawe of Richmond, L.||Montague of Beaulieu, L.|
|Ferrier, L.||Mottistone, L.|
|Forester, L.||Murton of Lindisfarne, L.|
|Fortescue, E.||Newall, L.|
|Fraser of Kilmorack, L.||Northchurch, B.|
|Gainford, L.||Nugent of Guildford, L.|
|Gardner of Parkes, B.||Orkney, E.|
|Gisborough, L.||Orr-Ewing, L.|
|Glanusk, L.||Pender, L.|
|Glenarthur, L.||Penrhyn, L.|
|Gormanston, V.||Polwarth, L.|
|Gowrie, E.||Rankeillour, L.|
|Gridley, L.||Reay, L.|
|Grimston of Westbury, L.||Renton, L.|
|Hailsham of Saint Marylebone, L.||Renwick, L.|
|St. Aldwyn, E.||Swinfen, L.|
|St. Davids, V.||Swinton, E. [Teller.]|
|Saltoun, Ly.||Terrington, L.|
|Sandford, L.||Teynham, L.|
|Sandys, L.||Thomas of Swynnerton, L.|
|Savile, L.||Tranmire, L.|
|Sempill, Ly.||Trumpington, B.|
|Shannon, E.||Ullswater, V.|
|Sharples, B.||Vaux of Harrowden, L.|
|Skelmersdale, L.||Vickers, B.|
|Somers, L.||Vivian, L.|
|Southborough, L.||Whitelaw, V.|
|Stodart of Leaston, L.||Windlesham, L.|
|Strathspey, L.||Wynford, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 5.57 p.m.
The Earl of Gowrie moved Amendment No. 6:
Page 7, line 38, at end insert—
("(7) In exercising his functions under this section the Certification Officer shall ensure, so far as is reasonably practicable, that every application made to him under section 5 is determined within six months.
(8) Where the Certification Officer requests any person to furnish information to him in connection with enquiries made by him under this section, he shall specify the date by which that information is to be furnished and shall, unless he considers that in all the circumstances of the case it would be inappropriate to do so, proceed with his determination of the application notwithstanding that the information has not been furnished to him by the specified date.")
§ The noble Earl said: My Lords, these are very straightforward amendments to the new Clause 6 which the House approved last week. As I said on that occasion, the purpose of the additional route of complaint to the certification officer is to provide a quick, informal and inexpensive remedy for the union member who believes that his union has infringed one or more of the Bill's requirements on union elections. The two new provisions introduced by this amendment reinforce that objective by requiring the certification officer, so far as is reasonably practicable, to determine every application made to him by a trade unionist within six months. It also requires the certification officer, when requesting information from a party in the course of his inquiries, to specify a time limit within which it must be supplied and, if the deadline is not met, to proceed with determining the application unless he considers it inappropriate to do so.
§ There is a particular reason why speed is of the essence in relation to complaints to the certification officer under Part I of the Bill. It lies in the fact that in many unions those elected to the principal executive committee hold office for a relatively short time; two years in many cases, one year in a considerable number of others. Quite clearly if a union member has a legitimate complaint about the election of an executive member it is important that that complaint should he resolved, wherever possible, before the complaint becomes academic as the electoral wheel moves round again. This is why these amendments provide clear pointers and powers to enable the certification officer to deal with the generality of complaints within six months of receiving them.
§ This is a small but important improvement to the principle of a speedy, informal remedy which your Lordships have already endorsed and which builds 1528 upon the power already given to the certification officer by Clause 6(6) to regulate his own procedure. I beg to move.
§ Lord McCarthy
My Lords, we do not wish to make a meal of this amendment, but it strikes us that it indicates further, as we have been arguing in previous amendments, the degree of complexity which the Government now expect from the certification officer. The noble Earl says—and I think I have it right—that the objective of the certification officer in this part of his functions is to provide a quick, reliable and inexpensive remedy. But, of course, the way that he proceeds to provide that remedy is by an inquisitorial and investigating function.
The certification officer in this case is to tell the unions that he wants the information by a given date, and that if in fact they do not give him the information by that date he will decide the matter anyway. The certification officer is to tell the unions that they are to provide this information, and, presumably, unless this information is provided in the way that satisfies the certification officer the unions will find that they have a declaration against them.
We contrast this, as we have contrasted it before, with the way that the certification officer now operates with respect to amalgamations, to the rules of political funds and even to the way in which the Government, as I understand it, envisage him operating under Section 1 of the Employment Act 1980. In all those areas it is the job of the certification officer not to stand by, as it were, to investigate unions when they fall away from the expectations or the legal injunctions placed upon them by legislation, but to help them to provide proper amalgamation instructions and proper political fund rules and ballots on which they can base political fund rules, and even to help them to get money out of the Government scheme under the Employment Act 1980. Because of that, the certification officer in each of these areas issues what are in effect model schemes. He issues model ways in which he believes that if unions put forward their amalgamation instruments, their political fund ballots or their schemes for getting money under Section 1 of the 1980 Act, they will be successful.
I take this amendment as an opportunity to put my question to the noble Earl at this late stage. My question is: is the certification officer, quite apart from acting in this quasi-judicial investigation capacity and in respect of the new powers which the Government give him under this part of the Bill, also to act in this area in the way that he used to act and still does act in his other functions? For example, will he be telling unions who wish to go for workshop-based ballots how to do it? Will he be issuing model rules where unions are reasonably likely to find themselves on the wrong side of the certification officer if individual members make complaints? Will he do that in the case of workshop-based ballots, registers and postal ballots? In other words, will he be helping unions to keep within the law as well as investigating them and passing declarations against them if they find themselves outside the law?
The Earl of Gowrie
My Lords, I am sure that the certification officer is available to give good counsel 1529 and advice. In effect, the law is so uncomplicated on this issue that it is extremely easy to keep to it.
§ On Question, amendment agreed to.
§ Clause 13 [Ballots: supplementary provisions]:
The Earl of Gowrie had given notice of his intention to move Amendment No. 7:
Page 18, line 29, leave out ("that") and insert ("the").
§ The noble Earl said: My Lords, I do not propose to move this amendment. It relates to what was thought to be a drafting error but is in fact an error by the printers, and will be corrected by them in the normal way.
§ [Amendment No. 7 not moved.]
§ Clause 20 [Amendment of ss.1 and 2 of Employment Act 1980]:
Lord McCarthy moved Amendment No. 8.
Page 25, line 30, at end insert—
(c) the ballot is not the first ballot held by the trade union after the commencement of this Part of this Act." ")
§ The noble Lord said: My Lords, this is our final appeal to the Government on the question of ballots in the issue of the political fund. The House will remember that at Report stage the Government introduced Clause 20 to allow the use of Section 1 of the 1980 Act to help finance political fund ballots. In the sense that the Government have now insisted that unions should hold ballots of this sort every ten years, we welcomed that amendment because we thought that in those circumstances those unions which wished to do so ought to be able to apply under Section 1 of the 1980 Act for funds to help them to run such political fund ballots.
§ However, on that occasion we pointed out by an amendment that we put down (the object of which was to remedy the situation) that the Government had left out unions in two sets of circumstances. First there were the unions that had no political fund at present, because the Government had said that unions had to have a political fund already and had to have won a ballot in the past before they could qualify for money. As we put it, this was the case of the NALGO example: NALGO, not yet having had a political fund, now finds that it cannot have money from the Government for the first ballot because the provisions of the amendment at that time ruled them out. Secondly, we pointed out the case of the union which might have a political fund at the moment because it had won a ballot in the past, as might the ASTMS. Some people have said that it might find it difficult now to have a successful ballot, and the Government had left them out, too.
§ We put forward an amendment the object of which was to try to see whether the Government would include both the NALGO case and the ASTMS case within the ambit of their own provisions. The noble Earl said, "No". He said that this would be an endless use of public funds. He said that he could not allow unions to have as many bites of the cherry as they wished, and therefore he felt that the provisions as put forward by the Government at the time were quite reasonable.1530
§ We are trying to do a modest thing here. It might be called a "first bite" amendment. It does not cover the ASTMS, but it does cover NALGO. We are saying that if the ballot is the first ballot that a union is holding as the result of the passage of this Bill, surely it should be covered by the provisions of Section 1 of the Employment Act 1980. I beg to move.
The Earl of Gowrie
My Lords, the proposition advanced by the noble Lord, Lord McCarthy, in this amendment is that each and every union which does not already have a political fund should be allowed one free go at establishing such a fund.
I might be more impressed by the pleas of the noble Lord, Lord McCarthy, were it not for the fact that every TUC-affiliated union has boycotted the ballot-funding scheme, which has been available to them since 1980. The problem up to now has not been one of Government meanness, to use the terminology which the noble Lord, Lord McCarthy, used during Report stage, but the problem of union intransigence and pigheadedness. It is because of that attitude and the failure to develop proper democratic systems by voluntary means that this Bill was needed. It should not have been needed at all.
Political fund review ballots are a new statutory requirement, and as such we decided that it was right that public funds should be made available to pay for them. I think that was rather nice of us, if I may put it that way. Ballots to establish political funds, on the other hand, are not a new statutory requirement and will be held only by unions which decide entirely of their own free will that they want to become involved in party political activity.
In this context, I remind the House of words spoken by the noble Lord, Lord Wedderburn, during the Committee stage on the Employment Act 1980, when he said:It is understandable that the 1913 Act is not in the list for public funds because the public funding of a union to ballot its members to spend its funds on political purposes for one party or another would perhaps be slightly strange".—[Official Report, 3/6/80; col. 1291.]Although that is expressed with the noble Lord's characteristic modesty and understatement, in my view it sums up the issue very well. If noble Lords opposite had wanted to argue that funds should be available for ordinary political fund ballots, then surely they would have done so in the context of the 1980 Bill. I hope that on reflection therefore the noble Lord, Lord McCarthy, will not press the amendment.
§ On Question, amendment negatived.
§ Clause 22 [Short title, commencment and extent]:
§ Earl De La Warr moved Amendment No. 9:
§ [Printed earlier.]
§ The noble Earl said: My Lords, I have spoken to this on an earlier amendment. I beg to move.
§ On Question, amendment agreed to.
The Earl of Gowrie moved Amendment No. 10:
Page 26, line 7, leave out ("section 18") and insert ("sections 18 and 20").
§ On Question, amendment agreed to.
§ 6.12 p.m.
The Earl of Gowrie
My Lords, I beg to move that this Bill do now pass. It is in the nature of our proceedings in Committee and on Report that most of the running is made, so to say, by noble Lords opposite. For the most part, it is their amendments we debate, and that means we are obliged—quite rightly—to dwell on technicalities and points of detail. The virtue of the debate on Third Reading is that it enables us to lift our gaze from the fine print of the Bill and remind ourselves of its underlying purpose and of the abuses it is designed to tackle.
At this point I confess to a genuine disappointment. When I moved the Second Reading of this Bill on 15th May, I posed a number of questions to noble Lords on the other side of the House who oppose this Bill. They were far from rhetorical questions. They were a genuine attempt to elicit information. I have to say that they have remained throughout all the stages of consideration of this Bill wholly unanswered. I hope that I shall be forgiven for repeating them now, not to embarrass noble Lords opposite, but because they illustrate very clearly the difference of approach between the supporters and the opponents of this legislation. I asked then and repeat now: do noble Lords opposite object to union members having the right to vote for their leaders in a secret ballot? Do they object to union members being asked whether they want to strike before being ordered to do so? That is a question, if I may say so, which is even more acutely relevant today than it was on 15th May. Do they object to union members being given the same opportunity which their grandfathers had to vote in a secret ballot on whether their union should engage in political activities? Most important of all, do they really support and defend a system of internal democracy in trade unions such as that in ASTMS in which less than 2 per cent. of a unions's members vote in elections for the governing body?
That takes us simply to the root of the matter. We believe that a trade union executive which is elected by the votes of less than two per cent. cannot be truly representative and that the electoral system which produces that result cannot be truly democratic. We also believe that a strike vote taken by show of hands at rowdy meetings in a football field or at a factory gate—as happened in Dover only this week—is a travesty of democracy. And for a union to instruct its members to strike without any attempt to consult their views—as happened only last week to the dockers at Felixstowe—is we believe a betrayal of the very principles of democratic trade unionism. It is a betrayal that is putting not only economic recovery but also the livelihoods of millions of ordinary trade unionists at risk.
The noble Lords, Lord McCarthy and Lord Wedderburn, are deeply learned—and I say this with real respect and admiration—in the law and practice of industrial relations. No one in this House doubts that. But in opposing this Bill they have been 1532 handicapped, surely, by the knowledge that they are at odds with the views of a great majority of trade union members. I make no apology for once more reminding the House that a Gallup survey which was published in the Guardian on 13th June last year of how people voted at the general election last year showed that only some 39 per cent. of trade unionist voters had voted for the Labour Party. By far the majority of trade unionists voted either for the Conservative Party or for the Alliance parties, all of whom were committed to the democratic reform of trade unions, and committed very much in terms of this legislation.
Although I was challenged on the point by the noble Lord, Lord Molloy, last week, no one—least of all the Labour Party itself—has questioned that finding. The finding has been the subject of considerable internal deliberation within the Labour Party itself. Since then, other polls have demonstrated that this Bill has the support of a majority of trade union members.
We know that the noble Lord, Lord McCarthy, prefers the findings of academic research to the evidence of opinion polls. Your Lordships may recall that in my speech at Second Reading, I quoted the published research of Mr. Joseph Goldstein on the problem of poor attendance at union branch meetings. The noble Lord, Lord McCarthy, was good enough to tell me that Mr. Goldstein has since been discredited and he suggested an alternative reading list. Well, I have looked at some of the authors he recommended. At the top of the noble Lord's reading list was Professor Ben Roberts. On page 95 of his book—
The Earl of Gowrie
Well, my Lords, I understood that Professor Ben Roberts was recommended to him. Be that as it may, he is an admirable read. On page 95 of his book, Trade Union Government and Administration in Great Britain, which was published in 1956, he said that the average attendance at branch meetings for all the unions in this country:appears to fall within a range of 3 to 15% with a concentration between 4 and 7% in the majority of cases".Another author on the noble Lord's list—and surely he will not contest this—was the "immortal" Professor Hugh Clegg. In his book entitled, General Union—a study of the National Union of General and Municipal Workers, (1954) he commented thatlow attendance at branch meetings is a problem which faces all unions".Next on the noble Lord's list were Messrs. Undy and Martin. In their book, Ballots and Trade Union Democracy, which was published earlier this year and which has been much quoted by the noble Lord in our debates, they say:The lowest level of turnout is encountered in unions with geographically dispersed branches electing representatives by individual or block branch ballots. If these unions also collect subscriptions by check-off and have membership allocated to branches some distance from both workplace and home, branch attendance is likely to be below 10%".That is a book published earlier this year. I do not know precisely what poor Mr. Goldstein did to blot his copybook but it certainly was not to make a false assessment of attendance at union branch meetings. There seems no doubt in the academic community that branch meetings attract only a tiny minority of 1533 members. That must surely make them an unsuitable vehicle for electing the principal executive committee of a trade union. So the real opponents of this legislation are not to be found in Parliament or among ordinary union members but among the entrenched, and in some cases embattled, union leaders who are the beneficiaries of such outdated electoral systems. It is they who have a vested interest in the politics of the block vote and the smoke-filled room. It is they who fear the democratic rights which Parts I and II of this Bill will give to their own members.
When it comes to the third Part of the Bill, the ballots on political funds, the issue is surely no different. It is simply no longer good enough to assume that trade union members automatically and inevitably wish their unions to engage directly in party politics. Quite apart from the evidence of the last election, a Marplan poll earlier this year showed that 48 per cent. of all trade unionists would vote against a political fund if they were given the chance, and only 40 per cent. in favour.
Noble Lords opposite argue that it is enough for the trade unionist who does not support the Labour Party to be able to contract out of the political levy. Why should he care if his union has a political fund as long as he does not have to contribute to it? The answer lies of course in the basic principles of the 1913 Act. If the views of the majority of the members of a trade union are so irrelevant, why does the law provide for a ballot of all the members of a union on the setting up of a political fund? Why did Parliament not simply allow trade unions to set up political funds without any obligation to consult their members? The truth of the matter is that whether a trade union engages in party political activities is, and always has been, recognised as a matter of legitimate concern to all the members of that union.
Once again we need look no further than ASTMS for a vivid example of how widely union policy can diverge from the wishes of a majority of union members, in the absence of a right to ballot. ASTMS is a union with—by any standards—a rather high political profile. It is very closely identified with a particular political party by virtue of the activities of its leaders, who wield a block vote of 132,000 votes at that party's annual conference. However, its political fund is in chronic deficit and only 10 per cent. of its members pay the political levy. Incidentally, my Lords, with the contributions from 132,000 people, it should be rolling. But, more seriously, how can it be right that the members are denied the right to say whether or not their union keeps its political fund and—on the strength of borrowed money—engages in party political activities with which the vast majority of those same members apparently have little sympathy? How can that be democratic? Is it any wonder that ASTMS members resent what is done in their name and have put pressure on this and other political parties to change it?
It would be easier to take the arguments against review ballots seriously if unions' treatment of their levy payers was less cavalier. But it is a curious fact that in many cases the number of members a union affiliates to the Labour Party is quite different from the number who pay the levy. For example, in 1982 the TGWU reported some 1,600,000 members paying the 1534 levy, but only 1,325,000 members were affiliated to the Labour Party. What happened to the other 275,000? If noble Lords opposite are to be believed, they are all enthusiastic and loyal supporters of the party. Why, then, are they denied their place in the TGWU's block vote at the Labour Party conference? How does the TGWU decide which of its levy payers are to be disenfranchised in this way? What, the dispassionate observer may wonder, are the voteless 275,000 levy payers getting for their money?
Nothing in this Bill will prevent a union from affiliating as many members as it wishes to the Labour Party, or from raising a political levy of whatever size it chooses, provided the majority of members of that union have decided in a secret ballot that they want their union to go on with its political activities. It really is as simple as that.
As I said at Second Reading, surely the case for this singularly modest Bill is self-evident. The abuses it is designed to tackle are generally recognised and not only by the party whose executive is bringing them forward. The rights it will provide are manifestly needed and manifestly desired by the majority of union members. The arguments of principle are clearcut, and they are backed up by the evidence of both opinion polls and academic research—and, one could add, straightforward electoral determination. The reforms that this Bill will bring are really embarrassingly overdue, and I urge your Lordships to correct that situation and speed the Bill on its overdue way.
§ Moved, That the Bill do now pass.—(The Earl of Gowrie.)
§ 6.25 p.m.
§ Lord McCarthy
My Lords, since the Committee stage of this Bill we have been reflecting on how we could describe our feelings during the remainder of that stage, then on Report, and now at Third Reading. It seems to me that we must have refuge in a naval analogy. We have felt like the crew of the frigate which was commanded by Rear-Admiral Gascoyne D'Ascoyne in the film "Kind Hearts and Coronets". No doubt the noble Earl will remember that the rear-admiral eventually noticed an ocean liner looming out of the fog and ordered a course hard a'starboard. The only problem was that the liner was on the starboard bow and despite the plausible, reasonable pleadings of his shipmates, all the rear-admiral would ever do was to heave more and more hard a'starboard because he had never been known to change his mind. That is how we have felt throughout this debate.
The noble Earl has said that we did not answer some of the questions that he posed in his speech on Second Reading. I must say I thought we did, but we shall try to answer them this afternoon.
I turn to Part I of the Bill. What we have been trying to say to the Government on Part I is that it is a self-evident truth, and it is certainly exemplified fully in every page of Undy and Martin, and even, I would say, in Ben Roberts' early work, that no one system of elections suits all unions, any more than it would be likely that any one constitution would suit all states, or any one set of company articles would suit all companies, or even any one rule book would suit all political parties, or professional associations, or anybody else.
1535 What one has to do is to look at organisations and see what system is appropriate for them, and to prescribe likewise. In answer to the noble Earl's first question as to whether we object to members' right to vote in secret ballots to elect their leader, I would say, of course we do not, if that is what the rule book provides. But we see nothing wrong in rule books that do not provide for direct elections. We see nothing wrong in particular—because this is the issue that is before us, not a simple question like that. We see nothing wrong in rule books which do not ban and make impossible and unlawful indirect elections. We see nothing wrong in this at all; we want diversity.
We believe, and we have sought to argue and exemplify in our amendments, that the system of direct elections by secret ballot, whether by postal ballot, workplace ballot, or branch ballot, is another question. The system of direct election is most appropriate in small, occupationally-concentrated craft or ex-craft organisations. It is least appropriate, indeed it is extremely inappropriate, in multi-occupational sectoral-based conglomerate unions, such as the T & G or the GMBTU or the ASTMS, which have professional appointed officers, a large rate of membership turnover of between one-third and 50 per cent. a year, and a considerable interest in growth by amalgamation and merger.
We say that for them the system which the Government seek to impose upon them will produce inflexibilities, low rates of participation, under-representation of significant groups, and the development in those organisations of factionism which, so far, they have been able to avoid. We say that this would be echoed by any objective analysis and can be seen in any decent textbook on the subject. That is simply what would happen if these unions decided to move towards the system which the Government want voluntarily. That is not what is being proposed.
What is proposed is that it should be imposed upon them by law. We are saying that there is no justification for this. We are saving that the Government have put no justification before us. Indeed, we are saying that the Government and the Government's supporters have become increasingly annoyed and increasingly testy when we have asked for justification: justification in terms of malpractice, justification in terms of fraud, justification of the kind which was put forward and which was very plausibly advanced, for example, in analogous provisions in the case of the Landrum-Griffin Act in the United States of America. That is what we have been saying about Part I of the Bill.
So we come to Part II of the Bill. In respect of Part II the noble Earl asks me whether we are opposed to the right of a strike ballot in which people can participate before they are asked to get themselves involved in industrial action. Of course we are not, but once again we see no reason why a strike ballot—in particular the kind of strike ballot imposed in Part II of the Bill and one which involves what we call the intimidation provision—should be imposed by law on trade unions. We see no justification for it. Indeed, we say that in the context of this Bill what is proposed is 1536 the complete destruction of the legal right to take effective industrial action on the part of the union as an organisation.
We point to the fact that this is the first time that any Government—including any Conservative Government—have deliberately legislated, it seems to us, to undermine, confine and restrict the rights of the union as an organisation and to support and make lawful and possible unofficial action. All Governments from the middle of the nineteenth century have strengthened official organisation, official procedures and official union action, as against unofficial action. This is the first Government who are making it virtually impossible for unions to deploy the legal right to effective industrial action by leaving it rather more likely that trade unionists will involve themselves in unofficial action.
Therefore, we pass to Part III of the Bill. The noble Earl asks me whether we are against ballots on political activities and whether we are saying that trade union members should not have to ballot to establish a political fund before they can take part in political activities. I think that to some extent we are saying that we are against that. For example, we certainly believe that the statutory objectives of a union like NALGO, which does not have a political fund, should still continue to permit it to indulge in quasi-political action—for example, against Government cuts—without a political fund. We say that the Government are taking that away.
We say in particular that, although we are not against ballots on political activities—after all, the 1913 Act has been accepted by the Labour Party since 1913—we see no reason in the present context why similar restrictions should not be imposed on other organisations and in particular on limited companies. We say that there is no comparison between the degree of restriction which is imposed upon limited companies and that which is imposed on trade unions and which the Government are now going to add to by the provisions of the Bill.
I think that the final question that the noble Earl asked me was about the 2 per cent. in the ASTMS. The 2 per cent. in the ASTMS is a pity. Nobody is going to say that it is a good thing that 2 per cent. of its members vote for the election of the executive. One of the main reasons why the turn-out is so low is that it is a federation. It is a decentralised organisation and most of the activity in the ASTMS is either in industrial groups (in those cases where it is, in effect, a series of industrial unions), or in the private sector (in industry) locally in what it calls its group system. Therefore, the branch life in the ASTMS has very little to do except to elect people to the national executive.
I quite admit that there is a need for constitutional reform in that respect, but I do not think that anyone who looked at the ASTMS would think that the solution in a union as diverse as the ASTMS is a universal postal ballot. I would predict that the turn-out in an ASTMS universal postal ballot may not be 2 per cent. but would not be much above that. Universal postal ballots will not solve problems of membership participation in unions as diverse as the ASTMS. What it requires is a specially designed programme, and it does not get that from the Bill. In fact, what the Bill will do is to impose on the ASTMS 1537 an electoral model which was reasonably appropriate to the Amalgamated Society of Carpenters and Joiners in 1851, because that basically is the model which the Government have.
Therefore, we have tried over and over again in the course of the Committee stage of this debate to put before the Government a series of amendments which were designed, as it were, perhaps to get them to move just a little bit less to starboard. I think that it is worth repeating some of the more important amendments that we have put down, and stressing the refusal of the Government to accept any of those measures. On Part I of the Bill, as we are against that comprehensive model, based on an 1851 craft union, we said, first, let the members decide whether they want the Applegarth model—the 1851 model. The Government said no, "Hard down to starboard".
Secondly we said, why not let us have what I insisted on calling the Thatcher option—the parliamentary model or the inner cabinet model—whereby the union could elect people to its executive much as people are elected to Parliament, but where the cabinet or the inner executive could be elected indirectly. The Government again said no, "Hard down to starboard". Therefore we said, why not allow a directly elected majority and have a minority which is indirectly elected; and the Government said that that would interfere with the simplicity of the Bill. Indeed, on one occasion I think I am right in saying that the noble Earl said that it would interfere with what he called the beauty of the Bill. The truth, goodness and beauty of the Bill was not to be interfered with, and all those suggestions were turned down.
Similarly with Part II of the Bill, we asked whether the Government would be prepared to restore a modified right to strike, based on due notice. They were not prepared to accept that. We asked whether they were willing to modify the terms of their notorious intimidation provision, now Clause 11(4)(a) and (b). The Government were not prepared to consider that. There was no willingness on the part of the Government to extend the period of immunity, even if unions are able to win an affirmative ballot under the provisions now of Clause 11(4)(a) and (b).
Indeed, the only significant concession that the Government have given us in all the stages of the Bill, from the start of its passage in the Commons, is at last to admit, in contra-distinction to the views that were put forward by the Minister of State in another place, that Part III of the Bill represents a significant extension of political control—that it extends significantly the area of activity which must be paid for out of the political fund and which cannot be paid for out of the general fund. Therefore, the noble Earl allowed us what I should prefer to call the main purpose test in what is now Clause 17(3)(e) and (f).
But before we thank the noble Earl for that—and we do thank him for that—we have to say that in this case a minor concession of that kind was accompanied during the passage of the Bill with an unprecedented series of major amendments which made the Bill from the point of view of trade unions significantly worse than it was when it came from the Commons. In my experience it is unusual on a Bill as short as this for a Government to introduce a number of major 1538 amendments worsening its impact in the course of its passage through the Upper House.
It is worth reminding the House of some of the more important amendments that the noble Earl has put down. In Part I of the Bill, the Government removed the protection of trade unions from interference and constraint in elections and the ballot process. That section was in the Bill in the Commons. It was taken out when the Bill came into this House and the Government have refused to put it back. Secondly, the Government removed specifically all alternative forms of balloting other than, first, the full postal ballot or, secondly, the workplace ballot. They did that not simply for Part I of the Bill; they extended the model of this alternative between postal ballots and workplace ballots to Part I, Part II and Part III of the Bill, and in doing that they had to sweep away the well-established way in which ballots are held in the case of the 1913 Act for political funds.
Next, the Government first put into the Bill, which they subsequently took away, an individual demand for postal ballots so that the individual could demand a postal ballot; and, finally, in Part I of the Bill they gave a right to the court to impose a postal ballot on a union. All these things were introduced by the Government during the passage of the Bill through this House respecting Part I.
In Part II of the Bill they first introduced these provisions so that there had to be a majority for the strike ballot; and, secondly, they introduced an individual right to terminate political contributions by the check-off. They did that, as we argued, contrary to what had been allowed to be the case, and was said to be the case, in an undertaking to the TUC. So in all these different parts of the Bill we have had the Government introducing amendments, throughout the Bill's passage, making it worse.
But that has not been the end of it, because whether or not the instructions were coming from above, from behind or from the Admiralty, which made this Bill worse as it went through this House, we had the famous Beloff amendment. At some time during the passage of the Bill the noble Earl found that he had a revolt on his hands from Chief Stoker Beloff and his mates. Therefore, we had the Beloff amendment and the subsequent amendments to put that amendment into effect, producing a presumption in favour of full postal ballots as vague as it is threatening, involving the certification officer, creating a situation of double jeopardy, threatening to undermine the functions of a respected and useful institution and putting in a vague duty to compile a register, which is now to be an instant register, with uncertain penalties if the instant register is not immediately created.
Of course, we are not suggesting that the trade union movement will be unable to survive the provisions of Part I, Part II or Part III of the Bill. On Part III of the Bill, I believe that the trade union movement will do its best to comply. It will do its best to win ballots, because it will consider that it is paradoxical that it should not operate within tthe ambit of the Bill, if that is necessary to maintain its links with the Labour Party; and, by and large, I believe that it will succeed. On Part I of the Bill, I believe that different unions will do different things. Some unions will attempt to comply; some unions will wait to see whether the 1539 Freedom Association and its allies can produce actions under the terms of what is now Clause 5 of the Bill.
The crisis situation, the dangerous situation—and we have done our best to warn the Government of this—comes in respect of Part II of the Bill, because we have told the Government on successive occasions, we have warned the rear-admiral, that this part of the Bill is to be introduced in two months' time and the fact is that the trade union movement of this country could not conform to Part II of the Bill, even if it wanted to, in the time which is available to it. It is impossible for the trade union movement to conform to this part of the Bill in the period which the Government make available to the trade union movement.
We have stressed this to the Government over and over again, and the noble Earl's reply, if I understood hm correctly, was that it must change its bargaining structures so that it is so fragmented and so small that it can comply, or that it must do away with national strikes altogether. I do not think that that is a very helpful way of looking at Part II of the Bill, and I would say, even at this late stage, that if the Government insist on enacting one-third of this Bill in such a way that it is impossible for a trade union to comply, then they are asking for illegality and, if they get illegality and unlawful strike action, it will be nobody's fault but their own.
We, for our part, must hope that it will be increasingly realised that this Bill is, in fact, part of a general pattern; that the Government are seeking to impose upon trade unions a dogmatic solution which defies reason, which is based upon their own instincts and their own prejudices, and that they do this not simply to trade unions but also in many other areas. Therefore, this Bill is part of a pattern. It is, as we have said, deriving from the fact that the Government do not believe that trade unions have a role. They do not believe that the trade unions have a function. They believe that trade unions interfere with the working of the free labour market and, therefore, they believe that they can attack trade unions with impunity and, indeed, with benefit.
But trade unions are not the only independent institutions that the Government do not believe in. They are not the only things that the Government have prejudices against. The Government do not believe in free, independent, autonomous local government. The Government do not believe that there is a productive role for the public sector. The Government believe that the private social services should be expanded and that the public social services are best privatised. The Government believe that by taxation and by borrowing we cannot, in any way, deal with the problem of unemployment. The Government believe that they have a series of infallible instincts, a series of infallible dogmas which enable them to deal with every social, economic and political institution in their way. That is why they are facing the series of crises they are facing. That is why their life is one long banana skin—and this Bill will be yet another.
The Earl of Gowrie
My Lords, before the noble Lord sits down, is he really saying that the situation in the mines has anything to do with the Government?
§ Lord McCarthy
My Lords, the noble Earl will know, because I have told him before, that I never comment on contemporary disputes which are going through the process, I hope, of resolution. But, quite clearly, since he asks me, everybody is involved in that dispute. The Government are, in the end, the holding company; the Government are, in the end, to some extent, the employer; and, of course, everybody involved in that dispute is responsible for it. I hope that they settle it very soon.
§ 6.48 p.m.
§ Lord Rochester
My Lords, on these Benches our attitude to the Bill is much as it was on Second Reading. We agree with the proposition that every five years a trade union member should have the right to vote by a secret ballot in the election by all the voting members of the principal executive committee of his union. In this matter, our differences with the Government have centred around the question how the statutory machinery needed to make more extensive use of a postal ballot can best be established.
At Report stage of the Bill last week we took the view that the Government amendments did not go far enough to uphold the principle, agreed to by the House in Committee, that postal ballots should not simply be the statutory norm, but that implicit in that principle was the recognition that responsibility for challenging dubious electoral procedures should be placed on trade unions and not on individual trade union members. In reply, the noble Earl, Lord Gowrie, said that if unions were required to satisfy the certification officer before workplace ballots could be held, they would be able to present this as gross interference by the state in their affairs and that, for little gain, this might result in the legislation being boycotted.
I recognise that what my noble friends and I were advocating was a long jump. That is a well-known athletic event, but there is another one known as the hop, step and jump, and I suggest that that is the event in which the House has actually been taking part during the passage of this Bill. At Committee stage it was the noble Lord, Lord Beloff, and the Government with their first set of amendments who between them showed that they were prepared to take the hop and the step. The question at Report stage was whether the House would jump. Along with my noble friends, I voted in favour of the new Government amendment, partly to make sure that Lord Beloff's imperfectly framed amendment was not still in the Bill when it was returned to another place. It remains to be seen whether the Government's refusal to accept the amendment which I then moved will result in us all now falling down.
The noble Lord, Lord Houghton of Sowerby, whose opinion on such matters I always respect because it is based on long experience, had bigger fears than mine. In terms of the athletic event to which I have been alluding, what in effect he was saying last week, as I understood it, was that it would have been better if we had never taken off from the springboard. We must all hope that in the end he is not proved right.
As to Part II of the Bill, I continue to have serious doubts as to whether the effect of Clause 7 will not in practice be to encourage even more unofficial action than there already is in the form of walk-outs, working 1541 to rule, going slow, and so on. The House has not taken that view. Indeed, in Committee I was told by the noble Earl, Lord Gowrie, that I was living in the past, that unofficial strikes were no longer the predominant form of industrial action and that the battleground is now one which affects whole industries in the public sector. I am not so naive as to be unaware of that and have myself made the same point often enough for the House to know as much.
Of course, ballots should precede strikes wherever that is feasible. Particularly should that be so in the case of major national stoppages such as those we are now having to endure affecting coal mines and the docks. But Clauses 7 and 8 of the Bill are not confined to such strikes. Moreover, in the case of the coal dispute, legal sanctions are already available under the 1980 and the 1982 Employment Acts to deal with all the secondary picketing that has occurred. The trouble is that when the crunch has come it has not proved practicable to use them.
My fear is this: the requirement that under the conditions set out in the Bill ballots will have to be held before industrial action can with immunity be taken may actually cause more problems than it solves. However, the House has taken its decision and again we shall have to wait and see what happens as a result.
On Part III of the Bill I can only repeat that the Liberal-Social Democratic Alliance cannot be held responsible for the Conservative Party's manifesto at the last election, nor for the agreement that the Government have reached with the TUC on the whole question of political funding and contracting in or out of the levy. Indeed, from our point of view, the arrangement arrived at, that the Government will take no further action on the political levy for a period of up to two years, amounts in its effect to a carve-up between the Conservative and Labour parties at the expense of the Alliance.
Finally, I return to what I said at the Second Reading of the Bill: that my noble friends and I very much regret the absence in this Bill of any provision at all positively to improve human relations or to bridge the gap between "them" and "us" in British industry. This is the third instalment of the Government's step-by-step approach to legislation on trade unions. There may soon be a fourth relating to industrial action in essential services. All of these steps may or may not be necessary, but they are contentious and they are divisive. The directors of many of our best run companies know perfectly well that, although legislation of this kind may curb abuses of power, it does nothing positively to encourage management and employee representatives to work together to achieve a common purpose. We on these Benches eagerly await the first sign from the Government in their legislation that they recognise this truth.
My very last word must be one of thanks on behalf of my noble friends to the noble Earl, Lord Gowrie, for the courtesy he has shown us throughout the passage of the Bill.
§ 6.55 p.m.
§ Lord Houghton of Sowerby
My Lords, I certainly wish to endorse very warmly indeed the compliment which the noble Lord, Lord Rochester, has just paid to the noble Earl the Minister. He has been courteous 1542 and patient throughout all our debates. It has improved the quality of our discussions and has enabled us to see this emotive problem in a sober light. As far as possible, we have applied rational thought to those matters.
I have difficulty in knowing what is the uppermost thought in my mind at this moment, because this is part of a lifetime of work in the trade union movement. In the year in which the Trade Union Act 1913 was passed I became a boy clerk in the Civil Service and joined the Boy Clerks' Association. That was the beginning of my trade union life. It was followed later by 38 years as the secretary of a national trade union. I was described as the one intellectual member of the General Council of the TUC, but I repudiate that at once. To be an intellectual anything in the Labour movement is not always a mark of either respect or approval.
Trade unions have from the very beginning been about power, strength, success. They have not been about democracy. Indeed, through the history of the trade union movement some elements of democratic principle have been regarded as a hindrance and as a drag upon the accumulation of power and the use of power. Therefore, we are dealing with internal power blocs in our trade union movement. These are indispensable from the function which trade unions have to perform. Trade unions are not academic societies and they are not instruments of general government. They are reflecting the aims, the ambitions and the interests—some of them selfish, some of them broader and some, even, now twisted—of their members. Therefore, it is desirable for the community generally to look at the democracy of the institutional life of trade unions. It is also part of the responsibility of the community to look at democracy in other institutions. I attach great importance to our institutions because a good deal goes on there which can be misunderstood, sometimes not fully appreciated and sometimes not criticised when it ought to be.
It follows from what I have said that since trade unions are about power, strength and success they are very bad at self-criticism. They always have been because they have felt that they must not do anything to weaken their position vis-à-vis the employer—the other side, the enemy. So we have never had the benefit of candid internal debate about the institutional life, the aims and the position of the trade unions as part of a democratic society. The debate has been left all the time, or too much of the time, to critics who have been denounced as hostile and as unqualified to speak, probably with harmful intent.
Nearly everything that is done relating to the trade union movement is regarded as an attack on the trade union movement. We have found this to be so throughout our debates. It is unavoidable because that is how the trade union movement feel about it. The unions have rarely felt that governments or courts have been out to do them some good. They have had to fight for their rights and overcome the decisions of courts. Nevertheless, some landmarks in parliamentary life and legislation have been enormously beneficial to the trade union movement.
I do not wish to turn this debate—the hour is late—into a kind of first meeting of a Royal Commission 1543 on the trade unions. We probably need one. The last one was not all that successful. However, in the light of this background, where are we now? This is another movement in the step-by-step approach to trade union reform. I hope that it is the last that we are going to see in this Parliament. I do not believe that there are further steps to be taken without deeper thought, investigation and debate on the role, power and position of the trade union movement in society.
No wonder that whenever there is an autocratic regime in any country the first thing they must do is destroy the trade union movement. Whether the regime is Communist or Fascist, the unions must be destroyed because they are—or may be—a rival power to the power of the state, whether that state is an elected or autocratic one. The crucial issue which has to be decided (and current events are pointing to this more clearly day by day) is how the power of the trade union movement is to be reconciled with the demands of a democratic parliamentary system—that an elected parliament must be supreme. Unless that problem is reconciled, we shall drift into rival seats of power—a general political power and concentrated trade union power—and that can only create a rift which might come near to destroying the whole of our system.
The trade union movement must decide how it is going to function within these confines—they are confines—and within their responsibility to a wider democracy. It has to be granted of course that there are political considerations involved; but one has to try to reduce it to fairly simple terms, otherwise the problem becomes so complex and difficult to bring within comprehensive discussion that you just turn away and leave it alone.
On the question of the step-by-step approach to trade union reform, is there anything more to be done in such an approach without deeper thought and stocktaking about where we are all going? I do not think there is. I do not include in that step-by-step approach the question of the contracting in or out of the political fund because, as I said before—and I repeat and leave it there—I do not think any further step can be taken about the political funds of trade unions until the Government make their mind up how political parties in this country are going to be financed. You cannot regard solely as a matter of trade union democracy the rights of individual members because such an element in trade union life comes so close to the financial and political stability of one of our major political parties.
What else is there? I do not think that there is anything else to be done on a step-by-step approach without first finding out more from experience about the practicability and enforceability of some of the things we have decided upon already. There is not much evidence at the present time that what we have done so far is having the effect that people hoped it would have. This is a sad thought; but picketing, the declaration of strikes, the consultation with people, all these things are in a very sorry state indeed.
I do not think that what is being done about prestrike ballots is going to be of more than modest advantage one way or the other. After all, this Bill does not turn a strike without a ballot into a criminal offence. It leaves the unions exposed to civil 1544 proceedings in the courts. This is something which was not open to injured parties before. But look what is happening. How many people are willing in present circumstances to take advantage of the rights that they have; and yet we are extending the rights at the present time for all sorts of reasons. We have now illustrations of the opportunities that employers nationally and privately will not take, although they are able to do so, and will under this Bill be able to seek civil damages for injury which has been done to them.
What is left is the election of executive committees. Here I think that the last version is very little different from the first. We have not really got one standard system, though I agree that we have reduced the options to two: there must either be a postal ballot or there must be a ballot at the workplace which satisfies the fundamentals of the freedom of franchise and the secrecy of the ballot. That is I think an advance, but it does leave the option on the union to be satisfied under Clause 5 that a workplace ballot will nonetheless be more acceptable than a postal ballot in the attainment of results, and it can really contract out of the postal ballot if it wishes to do so. However, this is an experiment and we shall have to see what happens.
I hope—and these are my final comments—that all sides of the House will regard the approach to the position, and the future and power of the trade union movement, as a matter of national concern because I think it deserves it. I think, quite honestly, that the trade union movement should respond to the need to join in the debate themselves because they are part of the problem. Some people would say that they are the problem. Almost anything that one can say about trade unions, good or ill, is likely to be true in some degree. That is not a very happy state for any movement or institution to be in in this country. It has to do with politics, but politicians have to do what the electorate decides, and if a government are put there by an election (if the electoral system is accepted by the people) then they must put up with the consequences; if it is not, they must change it. One can say also that a great deal with which we are dealing in connection with the trade union movement is due to the apathy or inability of the membership to exercise their rights within the unions.
If you ask me to attribute one cause above all others to the failure of true democracy in the trade union movement, it is the closed shop. I think that when you have coerced membership, when you do not have to strive for membership, when you do not have to satisfy your membership in order to hold their loyalty and faith, something is taken away from you which is a loss to the democratic principle and an accretion to the power at the centre. I think that is undesirable.
There are faults on all sides here, but my final word is that this problem of how the trade union movement is to function and come to terms with our system of parliamentary democracy is I believe vital to the continuation of the United Kingdom as a state as we understand it to be.
§ Viscount Massereene and Ferrard
My Lords, think I was the first person in this House, 25, 26 or 27 years ago, to bring up this question of the vast power of trade unionism, and I used to speak a great deal about it. With due respect to your Lordships, I did 1545 know quite a lot about it at that time, from personal experience. I agree with the noble Lord, Lord Houghton, that the Labour Party have to have funds. If the only way they can get funds is from the unions, so be it. I am all for the political levy provided that Conservative union members do not have to pay that levy to the Labour Party against their will.
I remember the days when I could never understand how in this country we could have this vast monopoly of power of the unions. I am against all monopolies, whether they be private monopolies or trade union monopolies. I could never understand why it was, for instance, that one could have just two or three men in a powerhouse who, by turning a few knobs, could switch off a vast amount of power and stop trains or factories. That situation always absolutely appalled me. Therefore, this is one of the happiest days of my life, politically speaking. At last the unions are to become more democratic.
It always astounded me that union executives could be elected to power with perhaps only 2 per cent. of the membership voting. I always thought that was highly undemocratic. When I asked my own party whether this matter should not be pursued, I was always told, "No—drop it. The unions are much too powerful". I am glad that my party have now pursued this matter, even if late in the day. I am all for unions, and I want strong unions—but I want responsible unions. That is all I ask for, and with the new trade union legislation we have seen, and in particular this Bill, I believe that we will have more responsible unions. I commend this Bill to the House and although I know that there must not be a handclap in your Lordships' House, I think that my noble friend Lord Gowrie deserves our thanks for piloting it through so well.
§ 7.11 p.m.
§ Lord Harris of Greenwich
My Lords, I cannot pretend to be in quite the same state of ecstasy as the noble Viscount about this Bill. Nevertheless, as my noble friend Lord Rochester has said, we on these Benches welcome the Bill because it will provide greater democratic rights for trade unionists. That is the objective of the Bill, and in so far as that general principle runs through the Bill, we welcome it.
My noble friend Lord Rochester has pointed out that we have some reservations, particularly in respect of Part II of the Bill. It is wholly understandable why the Government have included that part of the Bill in this legislation, particularly in the light of some of the disgraceful episodes we have seen this week. There was the extraordinary episode in Dover on Monday, when it was said by many local trade union officials that the majority voted against a strike, whereas the local officials of the Transport and General Workers' Union claimed that there was a majority in favour of a strike. Given the effect of that decision on the living standards of those working in the docks industry, it is quite understandable that there are many people who take the view that some provisions such as those contained in Part II of the Bill should be placed on the statute book.
Having said that, I must introduce one cautionary note, and to some extent it explains why we are hesitant about this particular feature of the Bill. It is one thing to put this provision on the statute book; it 1546 is quite a different thing to implement it. We now have on the statute book—rightly, I believe—clear provisions regarding secondary picketing. We had many debates in this House on these particular provisions of previous Bills from this Government, and noble Lords on the Opposition Front Bench opposed them—mistakenly, I believe. One of their central arguments was that these provisions would never be implemented and used by many employers. In the past few weeks we have seen, unhappily, that what the Labour Party said on that occasion has proved to be totally correct. We have read in our national newspapers—and particularly as a result of the leak which appeared in the Daily Mirror—of the tremendous efforts made by the Government to prevent nationalised industries from going to court over these very provisions—
§ Lord Harris of Greenwich
My Lords, I shall be very happy to give way to the noble Earl after I have finished making this point. If the noble Earl is going to say that every nationalised industry is wholly free to go to the courts tomorrow so far as unlawful secondary picketing is concerned, then I and, I am sure, others will very much welcome that statement.
The Earl of Gowrie
My Lords, I was going to say something on this aspect in my very brief winding-up speech, but I shall make the point now. As the House is well aware, these provisions, from 1980 on, and the step-by-step approach, which the noble Lord, Lord Houghton, told us about, are in the field of civil law. I have absolutely no doubt whatsoever that civil remedies will be taken as a result of some of the actions we have seen in recent weeks.
§ Lord Harris of Greenwich
My Lords, I note what the noble Earl says. I am sure we shall all wait with interest to see what happens. I hope very much that we shall not be placed in the position of writing into legislation provisions which, once on the statute book, are implemented only by private employers and not by nationalised industries.
Having made that point, I shall now go on to the others I wish to make. I believe—unlike the noble Lord, Lord McCarthy—that this Bill is a great deal better now than when it arrived in this House, particularly in respect of the movement towards the introduction of secret postal ballots. I am sure that that is right. I am sure that the noble Lords, Lord Beloff, Lord Renton and Lord Marsh, and the parties on these Benches, were right in voting for the Beloff amendment. I indicated at Report stage that although I welcomed the Government's amendments to some degree, I still regretted—and my noble friend Lord Rochester indicated this, too—that they did not go a great deal further in some respects.
It is a great pity that we are not to have an independent agency to supervise the distribution of ballot papers and the counting of votes. I shall not return to some of the earlier arguments we had on this point, but I must say once again that there has been enough evidence of malpractice in trade union elections to make it highly desirable, in my view, that an independent agency should be created in order to undertake this extremely important work.
1547 Another point made by my noble friend Lord Rochester was in relation to the political funds of trade unions and the question of contracting in and contracting out. I believe it is still highly desirable that we move towards contracting in, for this reason. One of the main problems about the political funds of trade unions is that a substantial number of people who pay into a political levy are not even aware that they are doing so. There is plenty of independently researched evidence to make that absolutely clear. The House made a mistake when it declined to pass the amendment concerning this particular issue, proposed by my noble friend. Certainly we and, I am sure, others shall return to this subject in the future. In particular, we shall be looking with considerable attention to what the Government do in order to monitor the arrangements they have now indicated that they propose to establish.
I shall end, as I began, by saying that I believe this Bill represents a substantial improvement in the rights of rank and file trade unionists, and for that reason it should be warmly welcomed.
§ Lord Howie of Troon
My Lords, my noble friend and long-time parliamentary colleague Lord Houghton of Sowerby is far too sensible to be thought of as an intellectual. Because he is sensible, we should pay particular attention to what he said—especially about inquiring into the situation of trade unionism in this country, either now or in the near future. I do not consider to be a very reasonable situation that in which trade union law is introduced by the present Government on the basis of their personal view of the trade union-employer relationship, with the possibility of these arrangements being reversed, repealed or changed if at some time in the future the wheel of fortune should turn. I do not think that is a sensible way of conducting this complicated matter. What is needed is a strategy of some kind.
My noble friend Lord Houghton of Sowerby pointed to where we might conceivably find such a strategy. I do not think there is a strategy in the step-by-step approach. We know that it is step-by-step, but we do not know where the steps are taking us. I do not share the view of many of my colleagues on this side of the House that the steps are taking us towards the destruction of the trade union movement. I do not believe that that is the aim of the Government at all. All that the step-by-step approach has done so far is to show us that the Government, in their view—and with many of their views I agree, as the House will know—do not like the trade unions or, to put it more accurately, some of the things which trade unionists do. That is probably more correct. They are trying to draw attention to them and put into a legal framework a hint that these things should best be avoided.
In fact, the results of the two Acts which we have, and the third Act which we are soon to have, are not terribly convincing. They have annoyed many trade unionists but have not produced much in the way of results. No one can really say, in the aftermath of the 1980 and 1982 Acts that industrial relations at present, are much cause for pride. What we have seen is that we have passed laws which nobody really uses except in minor cases. Those minor cases might be relatively important in the great scheme of things, but 1548 in the big industrial problems the 1980 and 1982 Acts have not been used. I note that when the noble Earl intervened in the speech of the noble Lord, Lord Harris of Greenwich, he said that he expected that they would be used at some date in the future; but we will wait and see. It might be that they will.
I end by saying that I do not entirely welcome this Bill. I agree with much that is in it, but I do not welcome the Bill if it is going to be as pointless as the 1980 and 1982 Acts apparently have been. They have stirred up dislike of the Government to a large extent, and in so far as they have been effective it has been only on a very small scale. It is not worth the parliamentary bother to do that kind of thing, and I sincerely hope that the step-by-step approach will stop now.
§ 7.23 p.m.
§ Lord Wedderburn of Charlton
My Lords, the hour is late and I will be brief, but it would not be right that this Bill should go to another place without a proper debate. I cannot avoid saying that during many of our debates in Committee, on Report and on Third Reading my mind dwelt upon companies in our land not because of any political funds or donations, and so on, but for a very simple reason. The City of London is in the middle of volcanic changes. The Gower Report has made an unanswerable case for a statutory commission for investor protection. Scandals in the City—and I say this deliberately because it is easily proved—go on year after year. That is proved by the Department of Trade inspector's reports in the Library—a list as long as your arm.
What do the Government do? Do they legislate? Do they come rushing in with legislation? The noble Earl's right honourable friend in another place announced on Monday that the Government will issue a White Paper in the autumn and, devoting himself to self-regulation, said there would be some kind of legislation in 1986. That is not because the Government lack Ministers capable of bearing the burden of heavy legislation. The noble Earl has proved to us in this Bill, as he has done on previous occasions, that he has the stamina, the vigour and endurance to carry a Bill by himself, or nearly by himself, through all its stages. We congratulate him on that and thank him for the way he has piloted our debates from his side.
However, contrast that with the position of trade unions. The noble Lord, Lord Harris, has said again that there is plenty of evidence of lots of scandals. I repeat the point made by my noble friend Lord McCarthy merely in a phrase: there was one major scandal in 1959. There are other things, no doubt, to criticise, but compared with other areas of our national life and compared with those Department of Trade reports—from Dowgate to Capital and Counties and to St. Piran—the trade union movement does not have a long list of malpractices and proven scandals.
It has a quite different phenomenon. It has the phenomenon where the accusations against it are made not on the basis of normal logic and normal standards of proof but, very frequently, on gossip and allegations relating to sub judice cases. The normal principles of judicial procedure or double jeopardy are 1549 not applied to trade unions, as we have seen in this Bill. The normal principles of natural justice do not apply to trade unions, as again we have seen in this Bill. The noble and learned Lord, Lord Denning, pointed out to the Government their grave errors again today. To what shaming circumstance of our history have we come when a Prime Minister needs to be compelled by the High Court to treat trade unions with natural justice and elementary fairness? That standard is exemplified again in this Bill.
The Government know very well that the Bill will lead to continuous harassment of responsible trade unionists and their organisations in the courts. They know that because they have provided cumulative remedies for those who wish to take arguable cases—very often a lawyer will give you an arguable case—and, of all the institutions, to embroil the certification officer.
When the noble Earl says, as he has said so often—and I am sure he believes it—that these procedures in Clauses 2, 11 and 13 are very simple and that it is all very easy, I have to say to him, with the best will in the world, that this is a proposition which does not understand the realities of internal trade union administration and what it will mean on the ground actually to have to operate these measures. Indeed, the Bill makes that worse for two reasons. First, its standards of clarity and intelligibility are below even that of parts of the 1980 and 1982 measures. Those measures—especially the former, to be fair, more than the second—have been castigated by numerous judges as tortuous.
Debates have shown that the Bill is full of Humpty Dumpty phrases such as, "interference with the contract of employment". Nobody has any idea of what that means. It is something less than breach of a contract of employment but more than something else. Indeed, it is so unintelligible that the Government were forced to drop the words from the questions—the intimidatory questions, as my noble friend rightly says—which are to be put compulsorily to members of a union when they are about to take industrial action. No one can understand it, but it is in the rest of the Bill and it is upon that Alice in Wonderland vocabulary that the lawfulness and legality of trade union action will depend: and not merely that, but the liability of ordinary members, of officials, for millions of pounds of damages on that sort of working.
We still do not know how many branches of trade unions must have postal ballots. We do not have even a vague description, except that the noble Earl today, at the last gasp, says that it is a small minority—which, with great respect, certainly cannot be right. When trade unions can hold workplace ballots is highly obscure. The noble and learned Lord, Lord Denning, today told the noble Earl yet again that lawyers would make hay of many of the procedures in the Bill. The posture of the Government resembles that of William Pitt in 1797 when he introduced the Bill on the seduction of soldiers to desert and to mutiny. He claimed that the offences there were so complex in their nature that it was impossible to define them. Indeed, the analogy goes further because on that same Bill in 1797 the Government succumbed to pressure from its Right to make more rigorous a Bill that was already severe. The attack then was led by a notorious 1550 reactionary Whig, Serjeant Adair, who demanded for such subversive persons, as he put it,death in more than the usual horror".This time, the Government giving in to similar pressure has not produced much better results.
There is another element, coming to three remarks of noble Lords upon which it would be wrong and impolite of me not to comment. There is another fundamental reason why the Government take a too optimistic view, perhaps, of the sort of things that they can do. The noble Lord, Lord Harris of Greenwich, with whom I disagree on many matters, said something with which I do agree. That is that it is one thing to put a law on the statute book, especially in industrial relations; it is another thing to enforce it. The noble Earl said civil remedies will be taken. That is a bold statement but he may be right.
However, the debate is not merely to be couched in terms of whether a particular injunction will be sought or gained. I submit there is a much more fundamental level in that debate. That is that the Government do not understand the role of law in industrial relations in a democratic society. The law cannot provide you with agreement. It cannot provide you with a settlement. The law can provide you with procedures. I make hold to say that, in industrial relations in a democracy, settlements and agreements may be even more important than rights—and the law deals in rights.
To my noble friend Lord Houghton I say that perhaps that is one of the points which would come from looking again at the Donovan Royal Commission Report, of which he did not seem to think very much. He also said that trade unions were not very good at self-criticism. I think there is a great deal of truth in that. It is partly because they deal in conflicts which involve power. However, are they so lacking in self-criticism that they deserve a Bill every other year—as the Prime Minister has promised us? If you look at any other institution in our national life which deals in power, then its ability to criticise itself may be limited. Think of your Lordships' House faced with Mr. Lloyd George in 1910: one could not say that it was particularly notable for its capability to confess its own inadequacies.
The noble Earl, Lord Gowrie, says that this Bill has the support of the majority of trade unionists. Whether or not it be right that a large number of trade unionists vote for the Conservative Party—and on the evidence that seems highly likely—I cannot understand how anyone could say that the majority of trade unionists support this Bill. For one thing, the Bill has been different every time your Lordships' House has met. The Government have come forward with fundamental amendments from time to time. How does the noble Earl know whether the majority of trade unionists support the fact that the Huddersfield branch of a textile trade union may have to hold its own postal ballot because of the fact that he resisted our amendment today? I do not believe that even the major principles are necessarily known. I do not believe that large numbers of people know that the Government say to them, "We know the only way in which you are allowed to elect your national executive". As noble Lords have said, they know that people say they should have a right to vote. That is a 1551 right they have had according to the rules in all trade unions ever since they were founded.
We will see whether the view is the same when the truth begins to dawn. This Bill does make sense on one basis, and on one basis only. That is that it is part of the Government's attempt to change the position of trade unions in our society. I put it in that rather neutral way because I think that on reflection the Government Ministers might agree. They do not believe that trade unions should play a major role in impeding the forces of the market. According to the high ideology which now broods over Downing Street, market forces are the principles on which to run a society and trade unions will often look like obstacles to that.
Deplorably we have again heard in these debates the fundamental liberties of working people, which in other societies are known as rights, described by Government Ministers as privileges for which they demand an ever increasing price to be paid in their laws. Then, of course, step by autocratic step the Government are almost bound to invade the autonomy and freedom of trade unions, which, as my noble friend so rightly said, are always in the firing line.
I say this about Part III. This time by a side-wind the Government are introducing and passing a Bill which is an attempt, if not to bankrupt, at any rate to reduce markedly the financial resources of the Labour Party. They are doing this by reopening a constitutional settlement of 1913. We do not have a written constitution. If we did, this Bill when it is passed would be a constant visitor to the constitutional court. However, it is always said that this House is supposed to uphold our unwritten constitution, conventions and settlements. In terms of the 1913 political fund constitutional settlement the record will show that on this aspect of the Bill your Lordships' House has failed to fulfil that duty.
But although this legislation will no doubt go on every other year, as the Prime Minister has promised, I apprehend that the tide is turning. Step by step a truth is dawning on millions who were deceived. When this Government fall, as fall they will, the representative and responsible trade union movement of Britain will take a rightful place in a new programme of social advance. They will be free from legislation which is as repressive of civil rights and repugnant to democratic liberties as it is irrelevant to the real problems of industrial relations and the nation and to any of the urgent needs of our sadly fragmented society.
§ 7.37 p.m.
The Earl of Gowrie
My Lords, as so often, the noble Lord, Lord Wedderburn, tempts me. The noble Lord, Lord Houghton, made a speech of such wide ranging and general interest about trade union matters that it would be attractive to go on debating some of the wider issues. However, I think it is the feeling of the House that we should bring the proceedings on this Bill to a fairly rapid close and I shall resist these temptations.
I must just say to the noble Lord, Lord Wedderburn, who was very nice about me personally—and I am grateful to other noble Lords who have also made kind 1552 remarks—that one of the things that I like about the noble Lord is that he is an unreconstructed manichaean, if one can briefly put a toe into this intellectual water which everyone has been warning us against. He does see things in terms of the light and the dark. He even trotted out the old duality between the interests of trade unions and the City. The City runs on the savings of trade union members. They provide the greatest source of capital of any European country—the pension funds of ordinary men and women. We are still running these from this country. There is an overwhelming interest in the trade union movement that the City should thrive and prosper.
As to scandals, of course there are going to be scandals. There will always be scandals. One of the reasons why I sit on these Benches and not on the Benches opposite is that I have a dim view of humanity. I am a Conservative in that I do not think that human nature changes very much unless it is subject to regulation and discipline by law. In a free society we have to get together and discuss what regulations are acceptable and what are not.
The City is subject to over 100 regulations on the statute book. Contrast that with our rather modest—and some on those Benches would say too modest—step by step approach in this area. Of course, men and women will always take advantage of each other when they can get away with it. What we are trying to ensure is that they cannot get away with it too often.
I should like to deal with the points made by the noble Lord, Lord Howie, the noble Lord, Lord Hams of Greenwich, and one or two others. They expressed anxiety that this and other kinds of trade union legislation may get on to the statute book but not be used. As I said in an intervention to the noble Lord, Lord Harris, we are dealing here with civil law. Under civil law there is freedom to use legislation but there is also freedom not to use legislation.
I repeat that I have little doubt that redress will in the end be sought when all else has failed. No sensible people are litigious. No sensible people want to have recourse to law other than as a last resort. But all people know and want to know that the last resort is there. That is all that we have been seeking to ensure. I hope as profoundly as any in your Lordships' House that, the recent excitements, disturbances and troubles notwithstanding, the last resorts will not need to be used. But if these continue, I have no doubt that one way or another the last resorts will be needed. It is very difficult for us in Parliament, wherever we sit, to get across to the general public the status of this legislation. The general public still think of legislation fundamentally in terms of the criminal law. They see criminal offences being committed and they cannot understand why something cannot be done about it. One of the reasons why things cannot always be done about criminal offences is the difficulties, challenges and problems of policing, as the noble Lord, Lord Harris of Greenwich, knows very well. Where the civil law is concerned, the remedies are slower but over time they may be more inexorable. To my mind there is no doubt that, if they have to be used, they will be.
We have debated this Bill for three days in Committee and one day on Report and we have considered a number of further amendments today. As a result, the Bill is very different from the Bill that 1553 we debated at Second Reading on 15th May, in that we have added five new clauses and only seven clauses have remained unamended. I believe profoundly and personally that, although I tried to introduce this Bill with conviction and brio on 15th May, it is going from us a better Bill as a result of our amendments. Just to take my own side—I am well aware that there were other contributions from other parts of the House—I am grateful to my noble friends Lord Beloff, Lady Cox, Lord Renton, Lord Orr-Ewing, Lord De La Warr and others who made a signal contribution, in my judgment, to the improvement of this Bill.
Before we send the Bill on its way to another place, I would like again to remind the House that legislation alone cannot bring the changes that are needed in our industrial relations. It has always been our view that a proper legislative framework is a necessary but not a sufficient condition for securing those changes. Democracy in trade unions cannot be made by Parliament alone. It depends on the will and determination of union members to make full and proper use of the rights and opportunities the law has given them. The noble Lord, Lord Houghton, was especially interesting when he said that the unions were not suitable instruments of general government. I would add just two thoughts to that. It seems to me that they are not also best suited to be instruments of general political opposition, and that is the view not simply of those of us who stand where I stand or sit where I sit, but also, we would judge, the view of the vast majority of union members themselves.
Of course, union members have strong political views. I, for one, have no doubt that they will continue strongly to support the Labour Party in elections and with financial contributions. My own equally strongly held view is that the Labour Party will not form a government again in this country until its formal links with the trade union movement are severed. But that is an expression of personal opinion—the noble Lord, Lord Wedderburn, was apocalyptic and I am allowed a little apocalypse of my own. It seems to me that it is Parliament's duty to make sure that the rights, the opportunities and the last resorts are available to men and women to use at the right time and in the right form. That is all that we have sought to do in the Bill. It is in that rather modest spirit that I ask your Lordships to agree that it do now pass.
On Question, Bill passed, and returned to the Commons with the amendments.