HL Deb 10 July 1990 vol 521 cc189-250

House again in Committee on Clause 4.

Baroness Turner of Camden moved Amendment No. 14: Page 5, line 8, at end insert: ("( ) Irrespective of anything contained in a procedural and collective bargaining agreement, an employer may not unilaterally revoke such an agreement unless and until a majority of employees in the relevant bargaining unit have indicated their support for revocation in an independently conducted ballot. The Secretary of State shall, in consultation with the Advisory Conciliation and Arbitration Service, draw up regulations under which such ballots shall be conducted.").

The noble Baroness said: This amendment relates to situations in which employers seek unilaterally to revoke procedure and collective bargaining agreements with unions. The main purpose and reason why people join unions is in order to have some influence on their working terms and conditions. For most people it is totally unrealistic to imagine that the employment contract is one negotiated between equals. Except in conditions of extreme labour shortage the employer has everything on his side.

Unions were developed in order to try to redress the balance so that employees collectively might have some means of exerting pressure in order to maintain or improve terms and conditions. That is why simply belonging to a union, and having the right to belong, is not enough on its own. The union needs to be able to bargain collectively on behalf of its members. In order to do that it normally needs a recognition and procedure agreement.

In this amendment we are not seeking to put forward some kind of mechanism for recognition though it is the view of my party, with which I concur, that there should be some kind of statutory mechanism by which unions can achieve recognition if they are representative enough. However, this amendment tries to deal with the situation where an agreement that has been in existence for some time is about to be revoked. In recent years a number of employers have interpreted the Government's continued attack on union rights, with very little counterbalance in the area of employer responsibilities, as meaning that the Government are anti-union. That is hardly surprising considering some of the language used in a number of government publications.

In certain instances such employers have simply withdrawn recognition in situations where they may have recognised the union for a very long time. The reason sometimes given is that they believe the union is no longer representative; that too few employees belong or support the union and therefore the company as a whole would be better off without union recognition. That is what is said sometimes. It often conceals a wish to introduce different and often worse terms and conditions, but management feels that it cannot do that if it has to negotiate with the union.

The amendment proposes that management should not be able to take this action without a test of employee opinion. If the Government are really so keen on ballots, why do they not take the principle a stage further into the realm of employment itself? Why should the employer terminate a recognition and procedure agreement if the employees want it to continue? What redress do employees have when that happens? At present ACAS is unable to help, though in my experience its officials are often keen to do so. They normally advocate against jettisoning an agreement. Why not let the employees themselves decide? Why should the employer have autocratic powers? Apart from coming out on strike, why should the only remedy be to leave a working environment with which, until then, one has been satisfied? Since the Government are in favour of ballots I await the response to this amendment with interest. I beg to move.

Lord Rochester

My difficulty with this amendment is that it clearly means that it would no longer be possible, except with the consent in a ballot of the majority of employees in a relevant bargaining unit, for an employer after due notice to withdraw from a procedural and collective bargaining agreement. Surely it should always be open to both parties to such an agreement to do just that. I sympathise very much with the case presented by the noble Baroness, but not so much that I feel able to subscribe to the amendment.

Lord Strathclyde

I feel that the arrangements proposed by the amendment are neither necessary nor desirable.

First, it must be right to leave it to the parties directly involved in collective bargaining—unions and employers—to decide for themselves if they wish to establish or continue such arrangements. Employers must be free to decide for themselves whether they wish to recognise any union, and whether they wish to bargain collectively on any matter.

Secondly, in this country employers and unions do not choose to make collective agreements which are legally enforceable between them. In such circumstances, it would be quite inequitable to seek to impose on one party—the employer—special requirements which had to be satisfied before he could withdraw from a collective agreement which both parties had voluntarily entered into.

Thirdly, the amendment is also unnecessary in so far as it aims to "protect" individual employees whose own terms and conditions are determined (wholly or in part) by the terms of collective agreements. To the extent that this applies, an employer cannot modify the terms of individual employment contracts except as the law allows—which may involve giving sufficient notice or intent to end any such contract. An employee whose employer breaches the terms of his contract has a remedy through the normal civil law as it applies to such breaches of contract.

Finally, I have to say that in so far as the particular arrangements envisaged in this amendment would mean giving ACAS some kind of role in operating the "independently conducted ballots" which are mentioned, that would risk damaging the high reputation of ACAS. ACAS would surely become, as it was at the time when we still had the unworkable arrangements concerning statutory recognition rights, enmeshed in intrusive interference in a way which could only have this effect. I cannot believe that there is any case for running such a risk.

The noble Baroness alluded to the fact that employees had rarely successfully claimed against their employers when there had been a breach of contract. However, there are many examples where precisely that has happened. For example, there are the cases of Rigby v. Ferodo, Keir and Williams v. County Council of Hereford and Worcester, R. F. Hill Ltd. v. Mooney. There are many others.

Any attempt to impose any kind of arrangements along the lines of those proposed in this amendment could only damage good industrial relations. Whatever role there could be for such a system where legally enforceable collective agreements were the norm, it could play no useful role in this country. I hope therefore that the noble Baroness will feel able to withdraw the amendment.

Baroness Turner of Camden

I am not altogether surprised by the noble Lord's response to this modest amendment. Although the Government have said that they are all in favour of ballots, they appear to be in favour of them only within unions and not in relation to employment itself which is what concerns most people belonging to trade unions. People belong to unions in order to protect their conditions in relation to their employer and not in relation to the union to which they voluntarily belong.

I cannot accept what the Government have said as being at all reasonable in the circumstances. If they did not like the wording of my amendment, it would have been possible for them at least to accept the principle and to say that they would come back at Report stage. They have not done so. I do not accept what the Minister has said about involving ACAS in a consultative role. That is entirely appropriate given what ACAS has to do and the context in which it operates.

Of course it is right that procedural agreements in this country are not legally enforceable. But we are not talking about a legally enforceable contract. We are talking about circumstances where the Government have decided to revoke a non-legally enforceable contract—in other words, to take away a right which people already have. We wish to give those people who hitherto have been covered by that right the opportunity to vote on whether or not it should continue to obtain in their employment. It has nothing to do with terms and conditions of employment. It concerns simply the procedural arrangements. Those are quite different from the substantive agreements undertaken under those procedural arrangements which then cover terms and conditions of employment. What the Minister is talking about when he mentions terms and what people are paid, and so on, has nothing to do with this amendment or indeed with procedural agreements generally.

However, having said that, I do not intend at this stage to divide the Committee. I shall consider what the Minister has said to see whether or not I should come back with something different at the Report stage. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

8.45 p.m.

Lord Wedderburn of Charlton moved Amendment No. 15: Page 5, line 8, at end insert: ("(4A) Notwithstanding subsection (4) above, for the purposes of this section an employer who is a member of an employers' association which is a party to a trade dispute shall be regarded by virtue of his membership as a party to the dispute if he is represented by the association in the dispute, but not otherwise."). The noble Lord said: The words of the amendment are taken from Section 17(7) of the Employment Act 1980. At the risk of being accused of looking backwards, I feel that I should make that clear. The subsection provides quite reasonably that where an employer is a member of an employers' association, he shall be regarded by virtue of his membership of the association as a party to a dispute in which it is engaged if he is represented by the association in the dispute, but not otherwise. That subsection has always seemed quite reasonable. It is matched, as the recent judgments in the docks strike case made clear, on the union side by the union representing its members in a dispute, although not necessarily on the basis of agency, as parties to the dispute. There has been no suggestion in the case law that the provision is oppressive. If one gives a mandate to certain people to negotiate for you, you expect to be bound by that action, so why do the Government wish to change the law? They are repealing Section 17 and with it this provision. Do they mean to change the law, or do they say that the law is as the subsection stated without the subsection? It has never been made clear. It is important for us to understand the Government's intentions on this matter before we go further. I beg to move.

Lord Strathclyde

This amendment, like the others tabled by the Opposition, seeks to extend the scope of immunity for organising secondary action beyond that proposed by Clause 4, and beyond the scope of immunity allowed by the present law.

That simply confirms that the Opposition are committed to giving more scope for damaging and disruptive secondary action. In this case, however, the amendment may also be based on something of a misunderstanding, if I have understood the noble Lord.

Among the other changes made to the law on immunity for organising secondary action in the present Section 17 of the 1980 Act by virtue of its replacement by Clause 4, the provisions of Section 17(7) which concern the situation of employers who are members of an employers' association are to be removed.

Clause 4(4) in fact takes account of changes made by Section 18 of the Employment Act 1982 on the terms of Section 17(7) of the 1980 Act. Prior to the 1982 Act, Section 17(7) had the effect of ensuring that members of an employers' association were not to be treated as parties to a trade dispute merely because the association to which they belonged was such a party. After the 1982 Act, Section 17(7) in fact had a different effect, and made members of an employers' association represented by it in the dispute parties to that dispute for the purposes of secondary action, when otherwise they would not be parties.

Clause 4 corrects this anomaly. The Government's policy is that where there is a dispute between a member of an employer's association and his workers, the fact that the association is a party to that dispute should not have the consequence that any other members of the association would fall to be treated as parties. Clause 4(4) removes that area of doubt and secures the intended policy result. On the other hand, the amendment appears to recreate that anomaly. Accordingly, Amendment No. 15 is incompatible with the terms of Clause 4 and with the principles upon which it is based. Therefore, I hope that the noble Lord will feel able to withdraw the amendment.

Lord Wedderburn of Charlton

It was always my intention to withdraw the amendment. However, I must say that the Minister's explanation has not made it easier for me to do so. Indeed, I could not recognise the juridical history which he put forward. That was perhaps due to my inability to follow the speed with which he delivered his speech. I shall have to read what he said in Hansard.

I always understood that subsection (7), despite the 1982 Act, still provides very broadly to make an employer a party to a dispute where he was represented by the association in it. I did not think that the 1982 Act had denied that proposition. We see that it is the Government's intention, once again, to narrow the area in which employers can be parties to the dispute. That is the critical feature once one removes all gateways to legality for any type of secondary action. The Minister has certainly given me that broad lesson. I shall read the details of what he said in Hansard tomorrow. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Wedderburn of Charlton moved Amendment No. 16: Page 5, line 11, at end insert ("whether or not that act relates also to the dispute in contemplation or furtherance of which the secondary action is done.").

The noble Lord said: In moving this amendment, I shall speak also to Amendment No. 17 which deals with the same point but in a slightly different way. It concerns the genuine difficulty which we have; namely, accepting the Government's policy for the moment—and for what is left of their time—and looking at the clause as it stands.

For the first time the clause, very helpfully, introduces the concept of a primary dispute as a legal term. It is referred to as "primary action". That means that we now have both primary and secondary action as terms of art. The basic distinction is that in primary action the employer is party to a dispute with his own employees. In subsections (4) and (5), this distinction is spelt out, especially in the latter subsection where in the second paragraph "primary action" is said to be the action mentioned in subsection (2), where the employer under the contract of employment is the employer party to the dispute".

The first paragraph of that subsection reads: An act in contemplation or furtherance of a trade dispute which is primary action in relation to that dispute may not be relied upon as secondary action in relation to another trade dispute".

Therefore so far, so good. However, we worry that it would be possible for the courts to be in difficulty in a situation where disputes overlap. We have this point especially in mind because we believe that there are situations in which the interests of employees employed by different employers overlap but which also include different features peculiar to each group. Where the subject matter of the dispute overlaps, the objective of the Government appears to be that that dispute, under subsection (5), would be excluded as being secondary action.

However, one wonders whether in terms of an overlap the court may say "Yes, it is primary action; but it has a relationship". Again, the words in subsection (5) are very important. They read: An act in contemplation or furtherance of a trade dispute which is primary action in relation to that dispute may not be relied on as secondary action in relation to another trade dispute".

The court may say, "It is so closely intertwined that it is obviously the objective of those organising the second part of industrial action that it should be a main or possibly the major objective to assist the first". If it is the Government's intention to exclude the possibility of such a finding, we think that an amendment is needed. I suggest to the Minister that he should look especially at Amendment No. 17, and in particular to the closing words which speak of the relationship between such an employer and the employer party to that dispute". It is a question of whether the Government have any chink open in their mind on this matter. Perhaps the Minister will be able to show me that my fears are unfounded. I beg to move.

Lord Strathclyde

Before I comment on these two amendments, it would be helpful if I explained the purpose and the effect of the subsection in Clause 4 which they seek to modify. Subsection (5) ensures that where workers take primary action in contemplation or furtherance of a trade dispute with their own employer, that cannot be held to be secondary action simply because looked at from the point of view of another employer it has secondary effects. For example, if a primary dispute closed a factory one result might be—albeit as a by-product—to cut off supplies to another employer who was also involved in a different dispute with his own workers.

The first limb of Clause 4(5) therefore protects such primary action. It will be for the courts to determine, where relevant proceedings are brought before them, whether any particular call to take industrial action is primary or secondary. But Clause 4(5) ensures that genuine primary action will not fall foul of the provisions intended to prevent secondary action.

The second limb of Clause 4(5) provides what is, in effect, the only appropriate interpretation of primary action for the purposes of the clause. That is to say, action where the employer under any contract which would be affected by the action is the employer party to the dispute.

These amendments attempt to modify the provisions of Clause 4(5). However, they are inappropriate, and contrary to the intended effects of the clause as it stands.

Amendment No. 16 appears to be intended to produce the result that if action is primary in nature to any extent at all, then it is to be treated as primary action even if it is predominantly secondary in nature. That is simply unacceptable. In circumstances where it may be arguable that industrial action has been organised in contemplation of one dispute or another or, perhaps, both, it should be for the court to determine which dispute the organisers were contemplating or furthering according to normal principles. The issue is no different from the issue which could have confronted the courts at any time since the Trade Disputes Act 1906 as to whether organisation of particular industrial action had the benefit of the trade dispute immunities when it might possibly have been organised to further a dispute which was not a trade dispute.

This is even more readily apparent in the case of Amendment No. 17. The change this proposes to the second limb of Clause 4(5) would mean that action which would fall to be treated as secondary action would, in fact, become primary action if it happened to be about some relationship between two different employers. There is no justification, and no need, for any such provision.

I feel that these amendments would confuse and subvert the intended effects of Clause 4. Therefore, I hope that the noble Lord will read what I have said in Hansard and that he will, in the meantime, feel able to withdraw the amendment.

Lord Wedderburn of Charlton

My students would say that I often confuse, but that I never intend to subvert. I am grateful for the Minister's explanation on the matter. However, his reply disclosed one rather important issue. I believe that he said that where there was a trade dispute with one's own employer that would be primary action so long as it predominantly related to that dispute. Predominantly is a very important word. However, it is not exactly what the second paragraph of subsection (5) says. It reads: Primary action means such action as is mentioned in paragraph (a) or (b) of subsection (2) where the employer under the contract of employment is the employer party to the dispute". There is no questioning that wording. If we look back to subsection (2) it says: There is secondary action in relation to a trade dispute when, and only when", it induces a breach of the contract of employment, and so on.

The Minister said that it must not only be in relation to the trade dispute, but that it must be predominantly in relation to it. I hope that he will take the matter away and discuss it further. It is simply a matter of avoiding litigation. I appreciate the fact that these matters are more easily understood when set out on paper than in debate. But if the Government wish to tie the matter down in the way indicated in his speech by using the word predominant as part of the test of establishing primary action, they should really consider including the word in the legislation at the next stage. It is not so at the moment. Our amendments may not be helpful. The Minister will not allow himself to be helped by them; I therefore beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 17 not moved.]

On Question, Whether Clause 4 shall stand part of the Bill?

Baroness Turner of Camden

We now come to a discussion of Clause 4 as a whole. I oppose the Motion that Clause 4 stand part of the Bill. We have attempted to amend the clause. As has been said, it removes immunity in tort from all secondary action—I prefer to call it sympathy action—other than that arising during the course of peaceful picketing by workers at their own place of work.

In making those proposals, the Government are departing from their earlier philosophy, enunciated by their then Secretary of State for Employment, the noble Lord, Lord Prior. When dealing with previous amendments my noble friend Lord Wedderburn spelt out in great detail what was involved. Back in 1980, the noble Lord, Lord Prior, identified, as we have seen, two gateways to legality. I make no apology for repeating the argument. I believe that it is important.

Action taken against a first customer or supplier, or an associated employer, fell within the scope of the immunities found in Section 13 of the Trade Union and Labour Relations Act 1974. According to the noble Lord, Lord Prior, those two gateways to legality were necessary if the freedom to strike were not to be rendered illusory. The noble Lord, Lord Boyd-Carpenter, who, I am sorry to say, is not now in his place, asked whether that meant that we supported the 1980 Act. We do not, but we believe that it is better than what is proposed in the Bill, because the Government have now abandoned that philosophy. It will now be possible for an employer merely to split up his operation into several so-called subsidiary companies and to transfer work to one of them when facing a dispute at a particular company.

The union will not be able to match that action by starting a dispute at the site at which the work has been transferred even if it legitimises that action by a ballot of the workforce. Surely that cannot be regarded as even-handed. It blatantly favours the employer at the expense of the workers.

I have never understood why the Government should apparently regard sympathy action as so discreditable. On the contrary, as I said on Second Reading and again this afternoon, it has the merit of being disinterested and unselfish. If workers are prepared to give assistance to colleagues who are indirectly involved it is because they understand that their colleagues' battle could be their battle the following day, especially as under the propositions contained in the Bill the company could well be the same company but diversified to prevent the union exercising full leverage.

There can be serious questioning of whether the proposals are compatible with the United Kingdom's international obligations under the ILO Convention No. 87. I make no apology for referring again to the ILO. We should not hold the ILO in contempt. It has already ruled that the Government have introduced unacceptable restrictions on the right to strike, and further legislation cannot therefore be justified. The ILO committee of experts has observed that secondary action is protected by Convention No. 87, especially where the action, relates directly to the social and economic interests of the workers involved in either, or both, the original dispute or the secondary action, and where the original dispute and the secondary action are not unlawful in themselves". I cannot agree with Members of the Committee opposite that we can disregard ILO conventions. At one time the United Kingdom government were in the forefront of progressive legislation and support for international standards. We cannot abandon international standards. We are becoming increasingly out of step with other countries in Europe. No other country in Western Europe prohibits sympathy action in all circumstances. In Belgium sympathy strikes are lawful; in France sympathy strikes for political reasons are not lawful, but such disputes with an occupational or professional aim are; in the Netherlands the right to strike is virtually unlimited except where manifestly unreasonable; in Denmark sympathy strikes are permissible where there is a reasonable degree of interest between the two groups concerned; and in Germany, where the restrictions are the most tight, as my noble friend Lord Wedderburn said, there are industry-wide collective agreements, and workers are held to have an interest if covered by the same collective agreement.

The picture throughout Europe is that we have the most restrictions. The position will be even worse if these provisions are carried. I repeat, I do not believe that the Government can go on ignoring European practice indefinitely. Nor does there seem to be any pressing need for the provision in the Bill based on United Kingdom industrial experience. I was told recently by the CBI that when asked about obstacles to competitiveness in the run-up to 1992 its member firms did not include industrial relations in the United Kingdom as one of the obstacles. They all identified the lack of an appropriately skilled workforce and the low educational attainments of many school leavers as the prime cause for our lagging behind when it comes to competition with the rest of Europe.

In response to the Motion, could we please not have reference yet again to Fords at Dundee? I repeat again that we are not talking about secondary action. The noble Lord, Lord Campbell of Alloway, was correct when he said that the issue was basically one of recognition. If we had a fair and reasonable way of settling such issues, the problem would not have occurred; but the Government abandoned the provisions of the Employment Protection Act in that regard and have not replaced them with anything else. Incidentally, I am surprised that Members opposite, in view of the Government's alleged concern for individuals and individual choice, are apparently prepared to favour arrangements where union officials reach agreements with managements about who should represent the workforce before a brick has been laid and a worker appointed. What employee choice is involved in that? We are dealing with another of the Government's ideological obsessions about unions. They seem to believe that another helping of anti-union legislation will assist them to win the next election. I hope that we shall prove them wrong if that is their objective. This clause—unhelpful, unnecessary and desperately unfair—should not stand part of the Bill.

Lord Rochester

I am in something of a dilemma concerning the Motion of the noble Baroness that Clause 4 should not stand part of the Bill. The Committee may recall that at an earlier stage I felt obliged to oppose or any rate not to support—which I suppose amounts to the same thing—either Amendment No. 11 or Amendment No. 12, two of the main amendments concerning secondary action under the clause. On the other hand, I very much agree with the noble Baroness that it is important that there should be even-handedness between employers and employees.

The Minister did not altogether succeed in dispelling the fear that I expressed earlier: that the clause may encourage the unscrupulous employer artificially to divide his company into separately owned organisations, simply to defeat what would then become secondary action. Therefore if the noble Baroness presses her Motion to a Division, I am afraid that I shall not be able to support the Government.

Lord Renton

I am sorry to hear the noble Lord, Lord Rochester, say that. From time to time during the past 10 years he and his party and we on this side have agreed that what should be done on behalf of the members of the trade unions, in accordance with their wishes, and what should be done in the national interest are matters on which our views have coincided.

I was surprised by the speech of the noble Baroness, Lady Turner of Camden. She seemed to be going back many years in the views that she put forward. It has sometimes seemed to many of us on our side, and to members of the public, that the Labour Party have considered it more important to try to follow the maxim, "Workers of the world unite!" and do whatever a minority dictated, than to follow the maxim that in the case of each trade union and each strike we should act according to the wishes of the members and try to safeguard the national interest.

Clause 4 acknowledges the right to strike so long as reasonable provisions laid down by Parliament are observed. We must make up our minds. Should we say that the wishes of the members of a union are to be paramount together with the national interest? Or should we follow the wishes and sometimes the dictates of trade union leaders in other unions which have a strong influence on the union which may be striking? Are they to have the right to carry the dispute into fields with which the members of the union are not concerned?

Clause 4 should always ring a bell in the minds of Members of the Committee opposite—even though in another context! I should have thought that this Clause 4 dealing with secondary action has got it right. It is the next stage in ensuring that the wishes of the members of the unions principally concerned in the dispute should override the purely party political interests of other unions or of the Labour movement as a whole. That may conflict with the national interest. So despite the strong feelings and opinions of the noble Baroness, Lady Turner of Camden, and, I was sorry to note, the views of the noble Lord, Lord Rochester, I hope that the Government will stick to their guns on this Clause 4.

Lord Strathclyde

Clause 4 of the Bill removes immunity for organising or threatening to organise secondary industrial action. It thereby establishes the principle that an employer should have a remedy if he is threatened with industrial action even though he is not a party to a trade dispute. The only exception is to be for inducing secondary action in the course of peaceful picketing as the current law allows. The clause makes no change to the legal liability of anyone taking part in industrial action as my noble friend Lord Renton explained. Its terms are relevant to the legal liability of those persons or bodies who call for or threaten to call for secondary action. Nor does it affect immunity for organising primary action—a dispute between workers and their own employer.

Perhaps the most important justification for the clause is the simple point of principle that no employer should be at risk of having industrial action organised against him if he is not party to a trade dispute. The noble Baroness, Lady Turner, explained at some length how the ILO had found the Government guilty of all kinds of transgression against what is fair, right and proper. I hope that this is the last time we shall hear about the ILO—

Noble Lords


Lord Strathclyde

If that is the case, must say yet again that the Opposition are not giving all the facts. It is untrue that the ILO has condemned the present law. It is equally untrue to suggest that the ILO has yet condemned Clause 4, as drafted. We have every reason to believe that that body will not condemn Clause 4. However, what is true—

9.15 p.m.

Lord McCarthy

If I may say—

Lord Strathclyde

I hope the noble Lord will let me finish what I have to say. The whole point is that we never reach the end of the story on the ILO. Let us get the position absolutely right. Last summer an ILO advisory committee made an observation on aspects of UK compliance with ILO Convention No. 87. There was absolutely nothing extraordinary about that. The very same committee, in its report, queried aspects of the law in various European countries. There is nothing wrong with that. A process of dialogue between that kind of committee and the governments of member countries of the ILO is quite normal. The United Kingdom Government have responded to the committee's observations. However, as is always the case, the response was given to the ILO in confidence. Members of the Committee opposite know that.

Finally, it is significant that the TUC subsequently withdrew the complaints it made to the ILO advisory committee after it issued its 1989 report. Clearly, the TUC had no confidence that the ILO would uphold its complaints. I wish that Members of the Committee opposite would stop going on about the ILO.

Lord Wedderburn of Charlton

The noble Lord has not quite sat down. I found his intervention most helpful. It is perfectly true that the committee of experts has also raised the matter of contraventions of the convention with the German Government, the Government of the Netherlands and, I believe, the Government of Greece. Is the Minister aware that the Government of the Netherlands—I understand that this is also true of the German Government according to a report which I recently read—have entered into a constructive dialogue with the committee to try to reduce the incidence of contraventions in their legislation? Without disclosing the confidential communication to the committee, will the Minister assure us that this Government have also entered into a constructive dialogue with the committee to bring our legislation into conformity with the convention, as those other governments have promised to do?

Lord Strathclyde

As I understand the position, as the TUC has withdrawn its complaints to the ILO, there is simply no need to have any constructive negotiations because there are no complaints to discuss. No doubt we shall enjoy some more debates on the ILO as the Committee continues on its course through the Bill.

The noble Baroness, Lady Turner, talked about Ford USA in relation to Dundee. The behaviour of the TGWU in response to the plans of Ford to set up a plant at Dundee illustrated the potential scope, through blacking, for lawful organisation of targeted secondary action, and the damage that such action might cause to new firms and to overseas investment in this country. The noble Baroness cannot deny that that is the case. There may well have been an argument about recognition, but there was still that threat to do untold damage to inward investment in this country. As a result, 1,000 jobs were lost in Dundee.

Lord McCarthy

When the noble Lord says that the potential for damage was there, what he means is that it was not actually there.

Lord Strathclyde

That is purely an argument of semantics. We have now got rid of that potential. If Members of the Committee opposite support that kind of action, it is entirely a matter for them. Perhaps they do not go to Dundee very often. I do. It is difficult to talk to the people of Dundee on this issue following the loss of the Ford plant.

This clause will give an employer a remedy against attempts to organise industrial action against him even though he is not in dispute with his own workers. It is much more straightforward than the provisions of Section 17 of the 1980 Act. It reflects the essence of a worker's real employment relationship; that is, his relationship with his own employer.

I suggest that the real reason that the Labour Party is opposed to this clause—I regret the fact that the noble Lord, Lord Rochester, does not agree with the Government's position on the clause as he has agreed with us throughout our discussions—

Lord Renton

Does my noble friend recollect that in earlier debates on this vital question of secondary action the Liberal Party in those days made common cause with us?

Lord Strathclyde

Yes. The noble Lord, Lord Rochester, has done so again today, so I am not sure why he has decided that Clause 4 should be opposed.

Lord Rochester

I thought that I had made my position absolutely plain. The noble Lord had not altogether dispelled my fear that, in order to escape, employers in that situation might seek to set up separate companies in order to defeat what would then become secondary action. Noble Lords opposite may disagree, but I am entitled to express that view which I consider to be important. In effect, I have supported the Government on a number of amendments. I did not feel able to support them on that point and I cannot therefore conscientiously support the clause in total.

Lord Strathclyde

That is an entirely reasonable position for the noble Lord, Lord Rochester, to take. However, he will admit that there is no evidence to suggest that any employer ever has gone or ever will go to all the sweat of setting up separate companies so as to create what would now be illegal secondary action, whereas, by supporting the socialists and opposing the clause, he allows such things as the blacking of Ford USA, Dundee to occur. We have seen the threat and potential disaster that that has caused.

The Labour Party opposes the clause because its union paymasters do not like the constraints that the present law places on their ability to threaten industrial action in the hope or expectation of regaining the positions of unrestrained power and undeserved influence that they once enjoyed. There is a saving grace: the British public will be left in no doubt that the Labour Party is, has always been and is determined to remain the party of the bully-boy's charter and the flying picket. I recommend that the clause stand part.

Lord Rochester

Before the noble Lord sits down and if the Chairman will allow me, I want to make my position plain on one other point. The noble Lord said that in this I was supporting the Labour Party. I am not supporting the Labour Party. I did not say that I would vote with the Labour Party. I said that I did not find it possible to vote with the Government.

9.27 p.m.

On Question, Whether Clause 4 shall stand part of the Bill?

Division called.

The Deputy Chairman of Committees (Baroness Lockwood)

The Question is, That Clause 4 stand part of the Bill.

In the absence of any Lord to say "Not-Content" at the second Question, I declare that the Contents have it.

Clause 4 agreed to.

Lord Wedderburn of Charlton moved Amendment No. 18: After Clause 4, insert the following new clause: ("Industrial Action In this Act, the Employment Act 1982, the Trade Union Act 1984, the Employment Act 1988 and sections 13, 62 and 62A of the Employment Protection (Consolidation) Act 1978, "industrial action" means concerted action in combination by persons under a contract of employment or a contract under which they personally do work or perform services for another, done in contravention of one or more obligations under such contract, or a concerted refusal by such persons in combination to fulfil their obligations under such contract.").

The noble Lord said: This amendment proposes the addition of a new clause to the Bill. It is one of two that we are moving on industrial action to which this part of the Bill relates. In the light of debates that we have had, especially those on Clause 4, and with regard to the firm way in which views have been exchanged across the Chamber, I am well aware that a genuine difference of approach makes it unlikely that the amendment will be acceptable to the Benches opposite. However, that difference of approach presents itself to us as a starting point with regard to the basic civil liberty of the right to withdraw one's services in the employment relationship.

I suspect that the contrary approach will interpret a civil liberty in a much narrower sense. However, despite that the amendment is relevant to both approaches. One might consider that both approaches would agree that an employee should not suffer disadvantage in law except where some wrong had been done. That is the normal situation with strikes and industrial action. Although we shall later suggest that the time is coming to change the draconian rule that the system represents, in our system the employee who goes on strike is seen to break the contract of employment and can normally be dismissed. However, since 1971 industrial action in some areas of law has had an odd meaning. The industrial relations legislation which introduced this concept has a new and wide meaning. It refers to industrial action which was introduced to exclude the new clause on unfair dismissal. That was a bipartisan addition to our new labour law in that period, especially in what is now Section 62 of the 1978 Act and Clause 8 of this Bill. That refers to dismissal of those taking part in industrial action. The rule has been that the employer has the right so to do but cannot victimise only some of those taking part. It has been described both in judicial and commentary authorities, in the words of Sir John Wood as having the objective: ostensibly to remain neutral in the face of industrial action". In 1977 Mr. Justice Phillips described the curious area where the employer must dismiss all those taking part to avoid actions in the tribunal for unfair dismissal. But the phrase "those taking part in industrial action" has a very wide meaning beyond breach of contract of employment. Mr. Justice Phillips called it a kind of legal laissez-faire or neutrality in industrial disputes.

We say that in many respects the Government have departed from the area of neutrality in so far as that was a correct description. In this Bill they departed from such neutrality in Clause 8 in particular. Clauses 4 and 6 do not represent anything like a bipartisan attitude to these matters.

Before proceeding I simply point out that there is one other area where industrial action as a legal term occurs without a breach of the contract of employment; namely, in relation to the employees' continuity of service for the qualifying period. Since 1965, again on a bipartisan basis, that has been placed on the footing of industrial action freezing but not breaking the continuity, whether or not a breach of contract occurs. There seems to be no suggestion, and I hope that there will be none, from the Government that that should be changed.

Step by step, as we have heard this evening, there has been an approach towards a new attitude. Therefore we say in the amendment that in the important areas where rights and obligations rest upon the concept of industrial action where employees suffer disadvantage from the concept of industrial action, as a general matter that should arise only when there is a breach of the contract of employment. It may be said that that is not a very great step to take. I would agree with that. Much of the industrial action that occurs is a breach of the contract of employment. However, in regard to dismissal it is quite important.

The Minister was kind enough to write to me setting out some of the authorities on which he will rely later in the Bill. One of those is the case of Power Packing Casemakers v. Faust of 1983 in the Court of Appeal. In that case workers who took industrial action in the form of an abstention from overtime work which they were not obliged to undertake, even though they committed no breach of contract, were held in this context of dismissal under Section 62 to have engaged in industrial action within the special meaning of that part of the law. Lord Justice Stephenson said that the phrase "industrial action" covered: even more clearly a refusal used as a bargaining weapon whether it is a breach of contract or not". We say that because industrial action is not a wrong in itself and because the balance of rights and duties has moved so very strongly against, in particular, the individual employees. The organisers of industrial action do not commit a tort—a civil wrong—unless they induce employees to do wrong in terms of their contract of employment. Employees should have their rights assessed in terms of their contract of employment.

I suspect that those on the Benches opposite will look back—we shall not blame them as they blame us when we look back—and say, quite rightly, that a Labour Government were one of the administrations—the Minister is nodding—who agreed to this structure of the law and contributed to it very strongly in their legislation of 1974 to 1978. That is true, but some of us have learnt over the past 10 years. We have learnt that things could be worse than we thought. One of the lessons that we have learnt from that period is that the protection traditional to British employees is too fragile. If one believes in individual rights at work it is proper to say that an individual employee should not suffer disadvantage, at any rate unless he or she breaks the contract of employment. That is not a very radical or Bolshevik proposal to put before the Committee.

The bipartisan tradition is better represented by that than it is by the opposite. The liberty of association should be preserved in practice in that way, or at least as a first step. That is the general purport of our amendment. I appreciate that there are many points that could be made about whether any further Acts or provisions in Acts should be added to the list in the amendment. We have tried simply to set out the major provisions of 1982, 1984 and 1988 and one or two other sections of the 1978 Act. If the Minister got as far as that in considering the amendment we should be quite pleased because he will have taken it seriously, as we hope he has done. I beg to move.

Lord Strathclyde

It is certainly true that the term "industrial action" appears, or will appear by virtue of provisions of this Bill, in a number of statutes without the sort of definition proposed by this new clause. However, to accept the new clause would mean that those provisions, in some cases, could have quite different effects from those which would otherwise apply. The Government believe that any such change would be highly undesirable.

What the new clause completely fails to address is the fact that it is quite possible for workers to bring pressure to bear on their employer, or for workers to be induced to bring pressure on their employer, by means which do not involve breach or interference with the terms of the contracts under which they work.

There is absolutely no reason to assume that the only damaging action which workers can take to bring pressure on their employer necessarily involves breach or interference with the performance of their contracts. For example, the Court of Appeal judgment—mentioned by the noble Lord, Lord Wedderburn—in the case of Faust v. Power Packaging Casemakers recognised that a refusal to do voluntary overtime could constitute "taking industrial action" if it was motivated by certain considerations.

As regards employees' individual employment protection rights, courts and tribunals have rightly been reluctant to place a rigid limit on activities which might constitute "industrial action". In addition to the Faust case, they have found that standing round a new machine for a short time to prevent the employer from testing its operation (Thompson v. Eaton Ltd. 1976), or holding a disruptive union meeting at the peak point of production (Rasool v. Hepworth Pipe Co. Ltd. (No. 1), 1980) constitutes "taking industrial action" for the purposes of Section 62 of the 1978 Act. What the employees did in such cases might arguably not have involved interference with their contracts of employment, but I think it is clear enough that it is right to treat it as "industrial action".

It follows that if such activities prevent an employer providing work for other employees, the provisions of Section 13 of the 1978 Act should disqualify them from entitlement to guarantee pay, as envisaged by the terms of Section 13(2).

As regards immunity for threatening or calling for industrial action, the position is rather different. There can be no liability in tort for doing something which does not involve inducement to breach or interfere with the performance of a contract. In that context, therefore, if a union is required to ballot its members before calling on them to take industrial action, it will not need to do so for the purposes of protection against liability in tort if it is calling upon them to do something which does not involve any such breach or interference.

However, Section 1 of the 1988 Act gives union members the right to restrain their union from calling on them to take industrial action whether or not such breach or interference is involved. That issue was debated at length during the passage of the 1988 Act in your Lordships' House. I hope it will suffice if I simply remind the Committee that there were sound reasons for this approach, including the fact that whereas union members will not have much difficulty in deciding whether they are being called upon to take industrial action, it could be difficult for them to know whether they were being called upon to breach or interfere with the performance of their contracts; and as employees, they would be liable to non-selective dismissal if dismissed while taking part in any industrial action whether or not the action involved any breach of or interference with the performance of their contracts.

As the noble Lord, Lord Wedderburn, pointed out, when the Labour Party enacted the provisions of Section 62 of the 1978 Act it saw no need to define industrial action as it now proposes. It was right not to do so, and to leave it to courts and tribunals to recognise industrial action on the basis of the description of events given to them in disputed cases.

It is naive to suppose that workers cannot cause damage and inconvenience to their employer by doing, or refusing to do, something in a way that does not involve actual breach of or interference with the performance of their contracts. Accordingly, it is right to treat such activity, for relevant purposes, in the same way as industrial action such as a strike which does involve breach of contract. This new clause, however, would adopt exactly the opposite approach.

I hope that the noble Lord, Lord Wedderburn, will consider carefully what I have said and will agree that the approach which he proposes in the new clause would not be the best one to take.

Baroness Seear

I hope that the Government will think again about the proposed new clause. Over recent years the whole sphere of industrial relations has become more and more legalistic and restrictive by law. We, on these Benches, agreed that some changes in the law were necessary. However, we believe that the Government have gone much too far in their legalistic approach.

I was always taught to believe that the more we kept people like the noble Lord, Lord Wedderburn of Charlton, out of industrial relations, the better. These matters should be settled without this highly legalistic approach. The Government have over-encouraged legalism and made it much more difficult for decent industrial relations to develop free from legal intervention. The amendment is desirable to the extent that it would reduce the legalistic approach. The Government have been pursuing trade unions beyond the point at which it is sensible and reasonable. Some relaxation is long overdue.

9.45 p.m.

Lord Lucas of Chilworth

I am surprised that, with her great knowledge of these matters, the noble Baroness should accuse the Government of being over-legalistic. All that has happened over recent years is that the Government have attempted to get in front of the barriers that the trade union movement have regularly set up in a legalistic framework backed by industrial action to circumvent the best endeavours of our better industrial companies towards industrial relations.

Baroness Seear

If the noble Lord will allow me to intervene, many of our best industrial companies share the view that we have become overly legalistic.

Lord Lucas of Chilworth

That is perfectly true. They do share that view. It is something which they would not wish were it not for the actions taken in recent years which have circumvented the law which has been in place and has given rise to the situation that other laws have to be put in place to give a balance to precisely the argument to which the noble Baroness refers.

Lord Strathclyde

Perhaps I can briefly say to the noble Baroness that she must be aware that by this current Bill we get rid of the closed shop and secondary action; and we are about to get rid of unofficial action. We are making things less and less legalistic. We are getting rid of the type of problems in which the noble Lords, Lord Wedderburn and Lord McCarthy, seek to indulge. We are less legalistic. It is precisely this new clause that would create the kind of problems that the noble Baroness does not wish to see.

Lord Wedderburn of Charlton

I agree with the noble Baroness, Lady Seear, that lawyers should retreat so far as possible from industrial relations. My only amendment to her proposition is that they should be preceded by Ministers of the present Government.

The Minister said some interesting things, and perhaps I can comment quickly on two. We are more and more winkling out the Government's approach. Now that they have reached this point of their step-by-step approach—I do not mean the Minister personally—they are becoming over-confident; they are beginning to explain what the Bill is about.

The Minister refers to workers who bring pressure to bear on their employer; later he said that employees who inconvenience their employer must suffer disadvantage whether it is a breach of their contract or obligation or anything else. We do not hear very much of employers who bring pressure to bear on their employees or who inconvenience their employees.

This does not amount to pressure and disadvantage used to make employees work to their contract, which we say is the rule of law. The rule of law is that one works to one's contract and is made to work to that contract, not necessarily by specific performance but by appropriate sanctions. To make the worker work as opposed to working to his contract—which is what this Bill is involved in—without inconvenience to the employer, is the labour law of the master and servant Act and the Poor Law. It contains precisely that philosophy. We shall read Hansard. The Minister may want to amend what he said.

The Minister is right that the present case law from Thompson v. Eaton, Rasool, Faust, and a large number of other cases, makes it clear that industrial action in this area of dismissal and strikes does not depend upon breach of contract. I am delighted that we are agreed on that point. I knew that we would agree because of our correspondence. That will be important when we come to Clause 8.

It is in this area of dismissal that this amendment could have had its most important effect. It is a paving step towards the debate. I say now that it will be a complex debate. It will need to consider a large number of legal authorities; but that is what this Chamber is for. I hope that when we come to Clause 8 we shall at least have saved a little time by having had this useful exchange on this point of breach of contract. I am sorry that the Minister will not consider the matter further. I agree with the noble Baroness but this is an area which should be looked at, in a sense, quite apart from the Bill. However, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5 [Minor amendments relating to ballots]:

Lord McCarthy moved Amendment No. 19: Page 5, line 25, at end insert ("provided that where it is not reasonably practicable for members of a trade union who are employed under such contracts to be included in the ballot, a failure to accord them entitlement to vote shall not constitute a breach of section 11 of that Act.)".

The noble Lord said: I hope that the Minister is not entirely ad-libbing tonight. He seems to be getting off his script on occasions. If he is telling us that the more restrictions on immunity we have and t he fewer rights we have the less law we have, so that if we have no immunities and no rights we would be totally free, that is a novel doctrine. On the other hand, if he is saying that he wants to get rid of law, not just law which binds upon employers but law per se, perhaps he will follow this amendment and, if he will leave his brief, say that he will look at it sympathetically.

This minor amendment deals with a clause which the Government themselves say is putting through a series of minor amendments. Therefore, we have a minor amendment to a clause which itself introduces minor amendments. This very small amendment releases the law a little in ways that may help workers a little and which possibly may find support from the Government.

The purpose of Clause 5 is to add a number of additional restrictions and to widen the area of balloting. That is why the noble Baroness, Lady Seear, does not like it. She says that it is giving us more and more law. The purpose of the first part of the clause is to extend the scope of the balloting provisions to cover strikes involving contracts of service as well as contracts of employment. Therefore, restrictions which previously merely applied to contracts of employment are now to apply to those who may be involved in industrial action and who have contracts of service only: in other words, the self-employed and, more particularly, those in the construction industry who are working in some form of labour-only sub-contracting.

The purpose of the amendment, which, as I said, is a very modest one, is to introduce that familiar concept, the reasonable or practicable caveat, into requirements of ballot legality; to say, in fact, "Yes, of course, you must organise now or seek to organise a ballot in terms of the 1984 Act and the 1988 amendment. However, if it is not reasonably practicable to include all the workers who are under the kind of contracts covered by the extension of the clause, the mere fact that you have not included all those workers does not make the action unlawful".

The Minister will know, and no doubt will tell us, that this whole subject was raised, debated and rejected in another place. At that stage the Minister said (cols. 197–200 of Commons Hansard) that Section 11(1) of the 1984 Act provides only that one must include those members of a trade union who believe they will strike and if the trade union has no reason to believe they will strike and does not ballot them they are all right. Secondly, he said that Section 11(6) of the 1984 Act states that the right to vote need only be given to those who are entitled to vote as far as is reasonably practicable and, if you put those two things together, in effect you get what we are asking for in this amendment.

With respect, we do not think that that is the case. We are not just suggesting that we should take account of those who are left off the ballot because the union never thought that they would strike and therefore did not put them on the ballot—that is what Section 11(1) does—and we are not referring to those who offend against the provisions of Section 11(6). We are asking for a somewhat wider caveat, exemption or allowance than that. Consider the situation of a mixed ballot, as there might well be, in which the union is introducing a number of workers who have contracts of employment on, say, a building site, but also involved in the strike action are a number of workers on the lump who have contracts of service or who are self-employed.

We are asking why there should not be a special provision as it is much more difficult to contact these people. They are more mobile and they have probably been in the union for a shorter period of time. They may also be out of compliance and therefore may not be on the employer's list of members. It is possible that they are not on the employer's computerised payroll, which is frequently the source from which the unions obtain the names of their people. In those circumstances we are saying why not have a small and modest provision—provided that the union can show that it was not reasonably practicable to include the people concerned in the ballot—to allow the industrial action to be lawful? I beg to move.

Lord Boyd-Carpenter

I wonder in what circumstances it would not be reasonably practicable for members of a trade union who are employed to be included in a ballot. If they are available to be called out on strike, it seems that it should be possible to include them in the ballot. I am a little puzzled when the noble Lord says that there may be some persons whom one can call out on strike but who cannot be included in the ballot. Can the noble Lord explain that point?

Lord McCarthy

If these people come out on strike and they are included in the strike, unless they have been balloted in an entirely legal way which is laid down with great precision in the legislation, then that act of validation will be unlawful. If the union unfortunately gets into its strike force some people who did not get a ballot form and therefore did not vote for whatever reason, then the ballot becomes unlawful.

We say that the union should do everything that is reasonably practicable to include such people in the ballot. For the reasons I have given there are difficulties in including them because of the rate of turnover and the absence of their names on a computerised payroll. Another reason may be that they have been on the site for a shorter period. Therefore, in terms of simple solidarity, if one may use that strange phrase, they may involve themselves in industrial action. It may be that their terms and conditions of employment are involved. If they are on strike and they are not included in the ballot, then unless this amendment is passed it would be an unlawful ballot.

Lord Boyd-Carpenter

The noble Lord has not explained the circumstances in which it cannot be reasonably practicable to include these persons in the ballot. If they can be called out on strike, they can surely be included in the ballot. Is not this provision possibly opening quite a gap in the law?

Lord McCarthy

I do not wish to keep jumping up like a jack-in-the-box. There is so much wrong with the noble Lord's view. The trouble is that he thinks that everyone is called out on strike as though all trade unionists have little pieces of string attached to them; the string is pulled, but in the absence of the string, they do not come. Therefore, if trade unionists have the string around their necks and it is pulled, why cannot they be made to sign the ballot before the string is pulled? Strange as it may seem people come out on strike. They are not always called out. They may feel themselves involved and have an interest in the matter. They may even want to support other people. They come out on strike but it may not have been reasonably practicable to give them a paper to put a cross on. Therefore, the ballot is unlawful.

Lord Boyd-Carpenter

Why not?

Baroness Seear

Perhaps I may suggest to the noble Lord that the instructions for the ballot may have been sent by post. In the present state of the Post Office it is possible that the paper was not received.

10 p.m.

Lord Strathclyde

That would fulfil the reasonably practicable aspect of the clause. Perhaps I may more fully explain what exactly Clause 5 does. It remedies an anomaly in the present law. As explained in the Green Paper, Removing Barriers to Employment, the present requirements of the law on union industrial action ballots apply only in respect of action taken by those employed under contracts of employment defined in a particular way. However, it is perfectly possible for a trade dispute to involve workers doing work under other kinds of contracts. The law would give immunity for inducing industrial action in contemplation or furtherance of such disputes by such workers.

As an example one may consider the position where industrial action is in prospect by all the union members on a construction site where 90 per cent. Of those members are working as freelancers under contracts of services and 10 per cent. are working under contracts of employment as presently defined for the purposes of the relevant law. The way in which the present law is framed means that the union can still have immunity for organising the action even if it does not give a vote in a ballot to the 90 per cent. of its members who happen to be working under contracts other than contracts of employment. It has to ballot only the 10 per cent. who work under contracts of employment, the situation which the noble Lord, Lord McCarthy, wants to protect.

Whether or not any such situation has arisen in practice, it cannot be right to allow that law to remain as it is. There is simply no good reason to deprive such workers who are members of a union of the right to a proper ballot as is available under the Government's legislation to union members who happen to be working under contracts of employment. The noble Lord has claimed that it is too difficult for a union to give entitlement to vote to the members who would be given such entitlement by virtue of this clause. It is no more difficult to give such members an entitlement than it is to give it to members who do work under contracts of employment.

In any case the law already caters for a situation in which it is in practice impossible for all members with such entitlement to be given the opportunity to vote. First, the balloting constituency—that is, the members who must be given entitlement to vote—is and will continue to be defined by Section 11(1) of the 1984 Act. That means entitlement to vote must be given to all those members of a trade union who it is reasonable at the time of the ballot for the union to believe will be induced to take part or, as the case may be, to continue to take part in the strike or other industrial action.

Secondly, Section 11(6) of the 1984 Act specifies that, as far as is reasonably practicable, every person properly entitled to vote must be given a voting paper and a convenient opportunity to vote. Thus the law already applies and will continue to apply a reasonable practicability test. It means that if it really is not reasonably practicable for a union to give some of those properly entitled to vote in industrial action ballots the opportunity to do so, the ballot can nonetheless give the union protection for calling industrial action.

I am sure the noble Lord will agree that it is entirely right that a union should make reasonable efforts to satisfy the requirements of the law as regards establishing the balloting constituency and giving those entitled to vote the opportunity to do so. It is also right that if it fails to make those efforts the union should be at risk of proceedings if it goes ahead with organised industrial action, since it will have denied members their democratic rights. That is fundamentally what it is all about. I hope I have reassured the noble Lord that the amendment is unnecessary and that he will therefore withdraw it.

Lord McCarthy

The noble Lord is now saying something quite different from what the Government said in another place.

Lord Strathclyde


Lord McCarthy

Yes, quite different. In another place the Government said that we could not have this amendment because it would unfairly and unduly widen the area of immunity. The noble Lord now says that we do not need the amendment because it does not do anything new. I suppose we ought to call this the ILO answer. We are getting the ILO answer—"I can't tell you why we are against it; we have told somebody secretly, privately, confidentially. We always do it secretly, privately and confidentially, and you must take it on trust." I suppose that that is what we shall get.

Even then, the noble Lord should not misrepresent our position. We have never said—at least we have never said in this amendment—that we are opposed to extending ballots to contracts of service. That is not the purpose of the amendment. If one has to have ballots in the way that they are prescribed in the legislation there is a certain logic in introducing and including contracts of service alongside contracts of employment. We are not arguing about that. We are saying that in the circumstances, and given the difficulties of contacting workers who are on contracts of service, there ought to be some reflection of that in the legislation. We were told in another place that we could not have it because it was too wide. Now we are told that we cannot have it because it is exactly the same. Nevertheless, at this time of night, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Wedderburn of Charlton moved Amendment No. 20: Page 6, line 9, at end insert: ("(6) The following subsection shall be inserted in section 10 of the Trade Union Act 1984 (3B) Where a trade union holds a ballot which complies with this Part of this Act and with the support of that ballot induces persons to take part, or to continue to take part, in industrial action, nothing in this section shall cause an act to be actionable by reason only that those persons include one or more who have been engaged by an employer party to the dispute to enter his employment since the date of the ballot".".).

The noble Lord said: The amendment deals with a point which has emerged recently in the courts but which has worried some people for some time. To put it briefly, it concerns a ballot being held and a call later for industrial action to the union's members in a dispute with one employer—a proper trade dispute; nothing the Government could object to. Those who actually join the stoppage include employees who were not employed by the employer at the time of the ballot. As the noble and learned Lord, Lord Donaldson of Lymington, the Master of the Rolls, said in the recent case of The Post Office v. The Union of Communication Workers in the Industrial Relations Law Reports at page 147: The Union clearly cannot identify and ballot those of its members who are not employees of the employer at the time of the ballot, but who will, in the event, join the workforce at a later date. It would seem to follow that any call for industrial action following a ballot should expressly be limited to those who were employed by the employer". I interpolate that the noble and learned Lord is interpreting the statute and that the word "should" means that this should be limited to those employed by the employer. He continued by saying that they should be, given an opportunity of voting at the time of the ballot. For the avoidance of doubt, let me say at once that I am not concerned, I do not think that any court would be concerned, at small changes in the workforce but, de minimis apart, this point may repay consideration".

In context, it is clear that the noble and learned Lord thought that that was perhaps the proper reading of the statute. When one hears a court say, "de minimis apart", one knows that very often it is facing a conclusion that it thinks is not altogether sensible and is retaining some elbow room for itself in a case where only a small error, as the statute would say, has been made.

However, it does not seem very sensible that that should be the position. I do not believe that that was anyone's intention. I do not remember and I could not find any evidence of the point ever having been discussed as regards the enactment of the 1984 legislation. As I said, I do not believe that it was anyone's intention that this should be the position.

After all, it is the employer and not the union who hires the extra employees in the short time after the ballot, which we assume to be positive, as in that case; or at least it would have been had they managed to regularise the position. Moreover, when the union calls out its members it does not seem reasonable, if a few who are more than de minimis—however many that may be—then join, as members would naturally do in such a dispute, that that should so to speak invalidate the entire operation which otherwise the union has, we assume, carried through in strict conformity with the statutes.

Maybe there are problems with the wording proposed in the amendment. However, we thought it right to raise the matter because it is a situation which can lead to great uncertainty and legal argument. For example, no one knows how many people are included in the expression "de minimis". There may also be argument about exactly who was hired and when. It seems to me to be a quite unnecessary piece of legalism in the ordinary run of industrial affairs to get in the way and possibly even affect negotiations in a dispute. I beg to move.

Lord Strathclyde

The noble Lord, Lord Wedderburn, will be glad to know that I think his amendment is unnecessary. Section 11(1) of the Trade Union Act 1984 requires the union to accord an entitlement to vote to all those members of the trade union who it is reasonable, at the time of the ballot, for the union to believe will be induced to take part or, as the case may be, to continue to take part in the strike or industrial action. It is clear that the question of entitlement to vote falls to be decided by reference to union members employed by the relevant employer at the time of the ballot. Therefore, to suggest that the ballot could be invalid because individuals who joined the group at a later date were not given a vote makes no sense.

The noble Lord, Lord Wedderburn of Charlton, mentioned, in support, the judgment of the noble and learned Lord, Lord Donaldson of Lymington, in the case of The Post Office v The Union of Communication Workers. The Government agree that it would not be reasonable for a union to be expected to ballot members who had not been employed by the relevant employer at the time of the ballot when it had no way of knowing that it would later be called to take the action to which the ballot relates. No proceedings could be brought on that ground. I hope that I have reassured the noble Lord that the law already adequately covers the point and that the additional protection which the amendment seeks to provide is unnecessary. I hope that with that explanation the noble Lord will be able to withdraw the amendment.

Lord Wedderburn of Charlton

I always exert myself to the utmost of my powers to be reassured by the Minister. I fear that on this occasion too he has been unsuccessful. In the passage that I read the noble and learned Lord, Lord Donaldson, said: It would seem to follow"— that is, follow from the Act— that any call for industrial action following a ballot should expressly be limited to those who were employed by the employer, and given an opportunity of voting at the time of the ballot". Of course we cannot expect the union to ballot people who are not employed by the employer. That is not the point. The point is that there appears to be emerging a legal rule that the union can call out people or induce them to take part in industrial action only if they were employed at the time of the ballot. That is the obverse of the issue, and that is the problem.

I ask the Minister to reconsider this matter. It is a silly little problem. It need not cause any difficulty. It will get in the way in a dispute which might otherwise be settled. It may not happen all that often. It is just the kind of difficulty which arises—here I say, in my experience—once the lawyers become involved. If I am briefed—for whichever side—it is my job to take such a point, to win, and to obtain an injunction if I am for the employer. The noble and learned Lord, Lord Donaldson, is saying that the employer might obtain an injunction on that point. That is silly. The Minister thinks that it is silly. That is why he spoke about something else. Subject to the noble Baroness, Lady Seear, intervening, I shall withdraw the amendment.

Baroness Seear

The Minister has implied that he agrees with the amendment. He said that it is unnecessary because the point is already covered. He will have heard of a belt and braces. What is the trouble with accepting the amendment and making the position clear? Why cannot he accept the amendment? As he says that the matter is covered, it would not do any harm. If there is any doubt, it would make the position clear.

Lord Strathclyde

I thought that that was the point the noble Baroness was trying to make in respect of a previous amendment when she said that we did not want any more legalistic stuff. Here is an example of the Government saying that more law is unnecessary while the noble Baroness is saying that we should have the amendment in any case.

Lord Strathclyde

The noble and learned Lord, Lord Donaldson of Lymington, said that the point would repay consideration. The Government have considered it. They see no reason to change the law.

Lord Wedderburn of Charlton

For a moment I believed that the Government were going to reconsider the point in the light of the noble and learned Lord's admonition. I seriously ask the Minister to consult on the issue if he does not wish to leave the Bill in a curious state and does not want bad law. We do not want more law; we want better law. Managers will not necessarily thank the Government for leaving the position as it is. The unions have a little to gain from the amendment. Managers will gain from the fact that they will not be able to put the matter to their lawyers as early as they otherwise might. Subject to that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5 agreed to.

10.15 p.m.

Clause 6 [Responsibility of trade union for acts of officials, &c.]:

Lard McCarthy moved Amendment No. 21: Page, 6, line 24, after ("union") insert ("where the committee or official is not prevented by the rules of the union from doing, authorising or endorsing that act").

The noble Lord said: I wish to move Amendment No. 21 and speak to Amendments Nos. 22 and 25. In many ways this is the most serious clause in the Bill—not the most disgusting, that is Clause 8. It is the most serious example—to paraphrase the Minister—of setting the workers free by restricting their freedom. The amendment makes virtually any officer of any union, and any committee of any union responsible for the acts of a member of the union which happen to be outside the boundaries of law.

It is a long story. Some Members of the Committee may not like us going back into the past, and believe that if we do so we shall get stuck there. I apologise to them. I shall turn to the present; but I must start with 1971 when the previous Conservative Government succeeded in removing the blanket immunity in tort which had been re-enacted in the 1974 TULRA. They did it in a way which was generally thought by most people subsequently to have been—intentionally or unintentionally—a mess. That led to a series of cases in which judges at various levels of the judiciary said that certain bodies inside unions were either responsible for the acts of the members or should make the union responsible. Other judges said that other people should be responsible.

It was generally thought that when in the 1980s the Conservative Government wanted to consider this legislation again, they should take a totally different approach. We did not want it at the time but the form of liability that was introduced in 1982 was to spell out the responsibilities in the statutes of that year, to state specifically who would be legally responsible, who could commit the union and therefore commit tortious liability, clearly and precisely in the statute. This has turned out to be a rather clearer and better way of doing it than the way that it was done in 1971.

Yet the Government wish to change it. Everyone would say that a wide range of people under the terms of the statute are responsible for the actions of the union: the union's principal executive; the president and general secretary; any other employed full-time official of the union; any committee to which any of those people report; and those authorised under the rules to do this anyway. I should have thought that net was wide enough. There should be no need to go further in the way that Clause 6 does and say that virtually everybody in the union who could be said to be an official or to serve on the committee of the union—whatever the rule books may say—could commit the union. It is their responsibility and the union could find itself at risk, it could incur considerable penalties and costs. The only escape, once the union knows that this is the case, is the act of repudiation.

Therefore we ask for a modification. We do not ask that there should be no change from the present situation. We ask for a limitation on this global, general, vague liability under which branch treasurers might put the union into a situation of liability. The average branch steward—not a shop steward—might put the union into a liability. We suggest that if the rule book says clearly and precisely that such-and-such an officer has no such authority, that will be one condition to be satisfied. However, even then these two conditions should run together. The rule book clearly states that such a person is in no such position of authority, and if the person himself is not in the employment of the union—he may be a lay member or a doorkeeper, a branch secretary or a branch treasurer—he should not be put in a position where he can be made responsible for, or authorise, industrial action.

Once upon a time the Conservatives wished to introduce an element of liability and responsibility and they wanted to take away blanket immunity. However, they believed it was unfair and unjust to put every single officer or lay official of a union, however minor he may be, in a position where he could commit the union. They had several reasons for thinking that, but they also felt that would put a union in an impossible position if the only way it could escape such a liability was by an act of repudiation. We shall be considering acts of repudiation in the context of this Bill in subsequent amendments. The legal position is uncertain as regards an act of repudiation taking place. What is the legal position of a union as regards an act of repudiation and a validating ballot?

In this amendment we propose that liability should be limited, even if the Government wish to extend it. I hope that the Minister will give us some hope and some assistance tonight, and that he will try to spell out some of the reasons why the Government feel it is necessary to introduce a provision of this kind. I hope that he will try to put some flesh on the bones of the general arguments in the Green Paper which suggest that there has been a tremendous increase in the number of unofficial strikes. Those arguments further suggest that it is that increase in unofficial strikes which has made the Conservative Party and the Conservative Government depart from a position which I consider they have held since the early 1970s.

The Green Paper refers to a few random unofficial strikes. However, it makes no significant attempt to provide statistical evidence to demonstrate that the proportion of unofficial strikes has increased over the past five or 10 years. It has no considerable body of evidence to suggest that the number of working days lost as a result of strikes has increased over the past few years. It contains an assertion that three-quarters of the disputes that could be classified were found to be unofficial. However, we do not know how many of the alleged disputes could not be classified and we do not know what proportion of them were finally classified. Even on the figures that the Minister gave over the two years for which they are available, only 20 per cent. of working days lost were due to unofficial action. However we do not know whether the figure for previous years was 10, 15, 25 or 30 per cent. So far the Government have provided no statistical analysis or case studies to demonstrate why they should depart so completely from their former policies. I beg to move.

Lord Rochester

As these are the first amendments dealing with potential union liability for unofficial industrial action, I should say that in my view Clause 6 will do nothing to improve this country's industrial relations. It may well create more difficulties for management by prolonging procedures for resolving disputes. That in turn may provoke employees to take more unofficial action rather than less. There is a further danger. The Government's aim in introducing this clause is to curb such action. However, my fear is that it may have the reverse effect in that unofficial action will escalate into major official disputes legitimised by a ballot.

One reason why the Government have introduced the clause is that they want to put a stop to the practice whereby unions have sometimes connived at unofficial action in order to escape liability for it. What troubles me is that their proposed remedy may prove worse than the disease.

In the past, as a manager, I have had to deal on a number of occasions with unofficial action taken by members of the AEU. That union makes it plain in its rule book that only the executive council or the national committee may authorise industrial action of any kind. My first reaction to such trouble was to call in the union's district official to persuade his members to go back to work before trying to get the dispute resolved. If necessary, the national officer was roped in. The effect of the clause as it stands will be to undermine the authority of that union and distance it from its members. The amendment has the merit of seeking positively to uphold rather than to diminish the union's authority. That, rather than the Government's penal policy, is the approach which in my view should be encouraged.

Perhaps I may now turn to Amendment No. 22. The effect of subsection (3) is to make any obscure shop steward, elected perhaps by only a handful of union members, responsible for their acts. In order to repudiate that action, the union will have to go through the whole elaborate process of repudiation set out in subsection (5). It will have to do its best to give written notice of repudiation to every member of the union who takes part or might otherwise take part in that action.

What happens if a shop steward calls for action by people outside the section that he has been elected to represent? There does not appear to be anything in the Bill to limit the responsibility of an official to his section of the union. Presumably, the matter will have to be settled in the courts. That may be fine for lawyers, but, so far as I can see, it will do nothing to help management maintain good relations with their employees in the workplace. The amendment aims to limit the damage that the clause may cause by confining liability to officials who are employed by the union. For that reason, I support it.

Lord McCarthy

Before the noble Lord sits down, perhaps I may draw his attention to subsection 3(B) which makes it clear that the union would be liable in the circumstances to which he referred. It states: The provisions of paragraphs (b) and (c) of subsection (3) apply notwithstanding anything in the rules of the union, or in any contract or rule of law". In other words, even if the shop steward was involved in industrial action in which he was in no way a representative, he might be liable.

Lord Strathclyde

The Green Paper Unofficial Action and the Law explained the case for changing the present law on union liability for certain acts done by its officials and committees. If I had to summarise the nature of its particular proposals, I would say that they involved, first, widening the potential liability of unions, so that this applied in respect of relevant acts done by any of its officials or committees, including shop stewards; and, secondly, ensuring that, where any union official or committee called for industrial action and that act came to the knowledge of the union's executive, president or general secretary, they would have to make it clear to all concerned if the union repudiated what the official or committee had done.

That is what the provisions of Clause 6 are all about. They build upon the present law concerning union liability for relevant acts—that is to say, Section 15 of the 1982 Employment Act—so as to update that law.

The amendments before us now, and the next 18 or so amendments to the clause, seek either to undermine the intended effects of Section 15 of the 1982 Act as it would be modified by the clause, or to provide scope for unions or their officials to evade liability by adopting rule book devices or by getting others with whom they are associated to do the relevant act on their behalf. I hope that it will be accepted by the Committee that that is what the Opposition are trying to do.

I should add at the outset that, while the provisions of Clause 6 certainly involve modifying and extending the present law, they do not involve any new principle in terms of setting out special statutory provisions for union liability for relevant acts.

I accept that in various respects both the present law and the law as it would stand modified by Clause 6 are 'unique" in terms of creating special rules for the vicarious liability of trade unions. However, it has long been recognised, by Labour governments as well as Conservative governments, that unions are very special bodies whose affairs should be subject to appropriate legislation.

In historical terms—the noble Lord, Lord McCarthy, was interested in the historical precedent of trade union legislation since 1971—the Labour Government enacted such law as part of the 1974 and 1976 Acts. What the Labour Government did meant that union funds, unlike those of companies or other bodies, were not put at risk even if union officers or officials committed unlawful, tortious acts.

What we have done and what we propose are very different. We have recognised that when union members are called upon to take industrial action by a shop steward or a group of which their shop steward is a member, so far as the members are concerned that will he a call by "the union". That reality will be reflected in the provisions of the modified Section 15.

However, it is vital to appreciate that we are not going so far as saying that a union cannot avoid liability for relevant acts of its officials or committees. Other provisions mean that such liability can be avoided where a union finds it necessary and appropriate to do so by following the procedure for "effective repudiation". That, too, is reasonable and right.

I am sure that the noble Lord, Lord Wedderburn, will not like the idea of repudiation and will regard it as being far too onerous on unions. It is not, as we shall see when we continue through the amendments.

Bearing those points in mind, let me examine these amendments. Amendments Nos. 21 and 25 would enable a union to avoid potential liability for any relevant act of its officials or committees if they were, prevented by the rules of the union from doing, authorising or endorsing that act as expressed in Amendment No. 21, or if the union happened to have a rule which provided that in relevant circumstances an official who did a certain act was no longer to be regarded as "an official"—the obvious implication of Amendment No. 25.

What would happen if any such option were to be open to unions? It must be reasonable to assume that unions would proceed forthwith to make such rules as were necessary to restore the status quo. Certainly, the union's rules might then deny shop stewards the authority to call for industrial action on behalf of the union. But would members appreciate that sort of technical difference? I venture to suggest that they would not.

As paragraph 2.7 of the Green Paper explained—

10.30 p.m.

Lord McCarthy

Will the noble Lord take it from me that there are virtually no rule books which give shop stewards the right to call strikes and commit the union? That is why this Bill has to say, "Ignore the rule book".

Lord Strathclyde

But by passing this amendment and specifically excluding it in the rules, the unions would get round the effects of this clause entirely and there would not be any point in having it. There would be no requirement to repudiate.

Lord McCarthy

I am sorry to interrupt again, but that is not so. It is only the case in respect of lay officials. We do not say—if we do say it in this series of amendments we are wrong and will correct them—and it is not our intention to say that they can write themselves a rule book so that the general secretary, the executive and the rest are not responsible. We say that this can only be done if it is in the rule book and is being done for lay officials and not for full-time officials.

Lord Strathclyde

I am not sure that I understand the point that the noble Lord is trying to make. Presumably the rule book could be changed to take account of that. So far as I can see, it is totally unnecessary to accept this point on the basis that the unions could adjust their rule books in such a way as to avoid the repudiation of procedure and avoid the total effect of the clause. I may well be wrong, but that is what I understand.

Lord Wedderburn of Charlton

It may be helpful to put it in this way. The distinction is between the employee and the agent. The amendment would provide that one is still liable for one's employees in respect of anything done in the course of employment, or of the authority. However, for those who are not employees but are lay agents from time to time, there is the capacity to determine the authority within which one will be liable. That would seem a reasonable proposition.

Lord Lucas of Chilworth

Before the Minister responds, can the noble Lord, Lord Wedderburn, explain to the Committee how those people—they may be called branch secretaries or branch treasurers—who may not be empowered under the terms in the rule book may be separately identified by the membership as not being officials and therefore unable to call an action? I should have thought that anybody of a particular standing within the organisation would be thought of by rank and file membership of a trade union or any other organisation as having authority to perform a certain action. Whether at a later stage a trade union can repudiate that action because of what is in the rule book seems somewhat immaterial. I cannot understand that argument.

Lord McCarthy

The relationship between trade unions and their members is rather complicated. We do not have bits of string that we pull. The rule book is usually extremely clear. Only the national executive can authorise industrial action. If one authorises industrial action, in most circumstances one pays benefit. Only the national executive is entitled to pay out the money. Therefore most activists, officials, in the union know only too well who is entitled to authorise official action on behalf of the union. If any union had rules which were significantly different, it would go bankrupt.

Once one gets away from the "string" mentality it does not mean that groups of workers will not come out on strike and will not have people whom they regard as leaders. But that happens with non-unionists. That is unofficial action. We are talking of trade unions. We are saying that unions should be responsible only for those lay members who are specified in the rule book to have that responsibility.

Lord Strathclyde

The noble Lord, Lord McCarthy, said that trade unions were complicated. We are trying to make them less complicated by making sure that repudiation affects everybody, lay or official, who calls action in the union's name.

Perhaps I may explain precisely why we feel the way we do. In the Green Paper we said: Unofficial action may be seen by a union as a useful means of putting pressure on an employer before or during negotiations. Paragraph 2.8 mentioned that the National Union of Mineworkers has rules which preclude officials below a certain level in the union hierarchy from calling for industrial action on the union's behalf. However, British Coal has pointed out that in reality there has often been very close involvement by lay officials in industrial action affecting particular collieries, and the union has failed to intervene in any way.

This is neatly summed up in the Green Paper as follows: Where the union passively acquiesces in unofficial action organised by lay officers or by officials forbidden under the union's rules to authorise or endorse it, the effect is that the union escapes responsibility and avoids the need to fulfil certain requirements which would apply if the union itself organised industrial action, such as holding a proper ballot". That is what it is all about. These amendments seek to allow such a situation to continue and to flourish. They are accordingly quite unacceptable. My noble friend Lord Lucas of Chilworth is quite correct.

Amendment No. 22 is, if nothing else, direct. It would completely reverse the intended effect of a key change to be made to Section 15(3) of the 1982 Act by Clause 6(3). It would mean that the provisions of the section applied only to relevant acts of employed union officials or committees.

Section 15 as it stands already renders a union potentially liable for a relevant act by any official "who is an employed official"—that is to say, employed by the union. Therefore, if the amendment were to be accepted, the status quo would be restored and the intended effect of the clause would be completely undermined.

As I have already explained, it is not a valid argument to point out that what is proposed in the clause is the creation of special vicarious liability which is to apply to unions in a way that would not be the case for other bodies. That is simply irrelevant once it is accepted—as I believe that it must be—that unions are really very special bodies, with unique purposes. Moreover, in the real world, the influence of officials not employed by the union they are perceived to represent is also, in a very real sense, unique. It is not difficult to find evidence of that in almost every unofficial dispute.

Clause 6 is an important part of the package of measures which the Bill proposes to help deter and discourage unofficial action. It is entirely right that unions should in future be responsible for threats of, or calls to take, industrial action by any of their officials, or committees, or relevant groups with which officials are associated. The amendments would subvert the measures which are necessary to establish such responsibility. I hope that the noble Lord will not press them. I also hope that he will not press the other amendments to the clause because they all relate to the same basic problem—they seek to allow the union to avoid the requirements of the clause.

Lord McCarthy

The noble Lord's replies are a mixture of the general and the obvious; the particular and the mistaken. He has taken us generally through the Bill and told us what the provisions of the Bill are. I am bound to say to the Minister, at twenty minutes to eleven, that we know what the provisions of the Bill are.

He then took us through our amendment, and stated the general and the obvious. He said that the intention of our amendment is to widen the degree of immunity. Of course it is. He said that it reduces the number of those who carry liability. Of course it does. If we were not trying to widen the area of immunity and to reduce the level and area of liability, there would not be much point in putting down an amendment.

When the noble Lord came to the particular and the specific and tried to take us through what he said was the meaning of our amendments, he was almost invariably wrong. I do not want to bore the Committee at this time of night with examples; but the best example was the result of a number of interventions from this side of the Chamber. The Minister told us that the amendments meant that the union would be put in a position in which, by changing its rules, it could create a situation in which no one in the union would be liable. The amendment is not intended to interfere with any of the powers in existing legislation. The position with regard to those who are liable under the existing legislation and the need to operate the revocation procedure will remain exactly the same - the principal executive, the president, the general secretary and the other employed officials. That will remain exactly the same. All we are trying to do is to modify some of the extensions proposed in the Bill. Nevertheless, at this time of the night we do not intend to divide the Committee. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 22 not moved.]

10.45 p.m.

The Chairman of Committees (Lord Aberdare)

If Amendment No. 23 is agreed to, I cannot call Amendment No. 24.

Lord Wedderburn of Charlton moved Amendment No. 23: Page 6, leave out lines 28 to 33.

The noble Lord said: That eventuality is not highly likely. In moving Amendment No. 23, it may assist the Committee if I refer to matters which arise from both amendments.

Just as my noble friend has outlined an arguably reasonable approach to liability which would still, had the previous amendments been passed, be rather more strict than the normal rules of vicarious liability for bodies generally, so in this amendment and the one that follows we see the extreme character of the Bill. I concentrate on lines 28 to 33 because one sees from them just how far the Bill takes liability for what the Minister has called this special body on special principles. It takes us not merely to the case in which an official exceeds his power, but to the case in which the official joins with or visits a group of persons. I suggest that on Report we should look again at paragraph (b) on page 6 of the Bill.

The real situation is one where trouble has emerged and the manager sends for the local union official at whatever is the appropriate level according to different union customs. He then comes in to see what is the problem. Perhaps there has been a stoppage. The official finds a group of his members. Given the industrial relations system which we have, it is also very likely that some of his members will be with members of another union or non-unionists. In a large plant, there may be conveners from different unions. He joins them in order to find out the problem.

That is fatal to union liability. That is the Government's contribution to solving industrial problems. Managers will tear their hair out if the Bill is passed in its current form. Thereafter, the most incidental purpose of the group may be to organise or co-ordinate industrial action. As those people have a grievance against the management it is likely that such action will be contemplated in some form. It might be thought that the Bill would then state that the union is liable for anything done by the official or that the union is liable for anything done by the group. That is how the matter was put by the Minister. It might be thought that the Bill would say that the union is liable for anything done by the person who had previously been organising or co-ordinating the group. That is much too reasonable. The Bill actually states that the union is then liable for anything done, authorised or endorsed either by the group of persons—and it is highly accurate because it is understood that that may not be a member of the union at all—or by any member of that group of persons.

The Government cannot mean that. The issue was debated in another place. The defence of it was weak. Are the Government so determined to make the union liable for acts done by any person, be he a member of the union or not, in a group of persons, one of whose purposes was co-ordinating industrial action where there was a genuine grievance and where there has been a visit by a union official?

I know what the Minister will say. The Minister will say that that can always be repudiated by the union. The Government could have relied upon that answer if they had made reasonable the repudiation procedure. When one looks at the Bill, that is not so. The union must write to each individual member. We shall discuss later the matter of repudiation although we are all making wide-ranging speeches to get through the matter more quickly. However when one looks at the repudiation procedure, one can see that it is ridiculous. A union is required to write to every member who may have been affected and to write to every employer. Six months later, letters must be written to those who inquire. However, we shall return to that matter.

That is so not because one of the union officials or a union member has taken action but because the official had visited a group of people which included a person who had been mixed up in the dispute and who took action later; for example, he went to the paint shop and said, "All out". The union is liable unless it repudiates that. That is quite absurd.

I hope that the Government will at least look at one small point so that we have some common ground. Will the Minister look at the words, "or by any member"? Can he go that far? That is the most unreasonable part and that is why I beg to move the amendment.

Lord Rochester

In my view subsection (3A) (b) of Clause 6 goes over the top. A trade union official may be a member of a group which, unbeknown to him, decides to organise industrial action. He may not even be present at the meeting at which it is decided to take such action. Nevertheless, he may be held responsible for the acts of the group unless his union goes through the whole process of repudiation, to which we shall come in a moment.

It is worse than that, as the noble Lord, Lord Wedderburn, said. The union could, under the clause, be held liable for the actions of a single member of the group in question. That goes much too far. The amendment seeks to delete the offending subsection and I therefore support it. I join with the noble Lord, Lord Wedderburn, in expressing the hope that the Minister will look at this again, particularly the point that the union could be held liable for the acts of a single member of the group.

Lord Strathclyde

I am glad that the noble Lord, Lord Wedderburn, mentioned the procedure for effective repudiation, although, like him, I am aware that we shall be discussing that point in greater detail in a few moments. An understanding of the process of repudiation is vital. We cannot have exceptions to the clause brought in by noble Lords opposite. The point of the clause would be ruined. Effective repudiation is an easy hurdle to overcome. It is reasonable and right; it is not too onerous. Therefore unions always have the ability to say that they are not responsible. If they do that, they have no liability and there is no problem.

Perhaps I can briefly look in detail at the amendment. The new Section 15(3A)(b) is needed to ensure that a union will be potentially liable if a relevant act is done by a group of persons of which an official is a member. If this was not done, it would be impossible to know whether a union was liable for a relevant act done by such a group unless it could be established that the official had personally done the act in question.

There is a necessary limitation in these provisions so that there will be no union liability for what may be done by a group, or a member of a group, whose purposes do not include "organising or co-ordinating industrial action". So, just because a union official belongs to a group which has no such purpose—perhaps a social or sporting club—there is no danger of union liability being created by what another member of such a club might do.

The provisions of Section 15(3A)(b) proposed by Clause 6 will not prevent union officials using their influence to avoid or end industrial action organised by others. But neither will they allow a group which calls for unofficial action to have the authority which might be imparted to it by a shop steward being among its members unless the shop steward is willing to risk making his union potentially liable for what the goup, or any of its members, do by way of organising industrial action.

That is the point of the amendment. And that is why I believe it to be unnecessary. I hope that in the light of that explanation and assurance, the noble Lord will withdraw it.

Lord Wedderburn of Charlton

I am not at all reassured. The Minister has given us even more to think about before Report, and that is why I shall not move Amendment No. 24. He appears unwilling even to consider the kind of direction in which that goes; namely, that the purpose of the group has to be substantial.

We have been told many times that there cannot be exceptions, although why we are here if we cannot debate exceptions I am not sure. However, one would have expected a reasonable statute to say a group, "of which the principal purpose", or perhaps, "of which the substantial purpose". We must think about that more carefully for Report stage. As the noble Lord, Lord Rochester said, this provision is far too extreme.

The Minister has given us something else to think about. The fantasy world of this paragraph becomes Alice in Wonderland with mention of the union sporting club. I had not thought of that. The Minister has undreamt-of resources in these matters. The union sporting club goes cycling off; the official joins it. For 90 per cent. of the time they are enjoying a mini Tour de France. Suddenly they have a beer and begin to discuss the latest stoppage at work. I see what the Minister means. They may well come within the paragraph. But this is absurd. Surely we must come back to this matter on Report. It cannot be allowed to go through without a battle. If this Chamber cannot look at a paragraph of this sort and see that it is unreasonable there is not much point in debating the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 24 and 25 not moved.]

Baroness Turner of Camden moved Amendment No. 26: Page 6, line 42, at end insert ("and for the purposes of this section the date of repudiation shall be the date on which any of them sent a written notice to the committee or official under subsection (5) (a) below.").

The noble Baroness said: Clause 6 is all about repudiation. I do not want to go into the whys and wherefores of the clause as a whole. I do not agree with the clause and I share the views already expressed about it. The object of the amendment is to deal not with repudiation as an issue but with what happens when repudiation takes place.

For example, what happens when a union discovers that unofficial action is taking place? Most unions have a rule book under which the powers to repudiate are vested in the national executive council. The executive council is often made up of lay members. The general secretary has to summon the executive members to a meeting and they have to consider the issues before them and make a decision to repudiate. The date on which they repudiate can be extremely important. Therefore, the amendment sets out what that date should be. It states: for the purposes of this section the date of repudiation shall be the date on which any of them"— that is, the committee— sent a written notice to the committee or official under subsection (5) (a) below". That is the subsection which states: written notice of the repudiation must be given to the committee or official in question, without delay".

But what does "without delay" mean? There has to be an indication of exactly what that date should be. If it is the date when it is actually received, we all know that there can be postal delays and there could be arguments about the date. However, there cannot be much argument about the date when the written notice is prepared at the union's head office. That seems to be a reasonable amendment and I hope that when he replies the Minister will not say that this is an amendment that seeks to subvert the clause. It is not. The amendment seeks to tie up the position so that there is no argument as to when repudiation actually takes place. I beg to move.

Lord Lucas of Chilworth

I am grateful to the noble Baroness, Lady Turner of Camden, for explaining the position. However, she is quite wrong. The amendment does exactly the opposite to what she said. I ask the Committee to consider what my noble friend Lord Boyd-Carpenter had to say about best endeavours and reasonable practice when we debated Amendment No. 18. Similar arguments obtain on this amendment. As I read the Bill, subsection (4) requires that the union shall do its best. The words are: as soon as reasonably practicable". Surely the unions will accept that, rather than try to fix a specific date for repudiation. I cannot see how the amendment strengthens the unions' position. I believe it weakens it. Here we have a not impractical task. Surely it must be in the unions' best interests to inform all their members of repudiation of an action as soon as is practicable. That is all that the provisions require. In my view, the amendment does nothing to strengthen that.

11 p.m.

Lord Strathclyde

I say to the noble Baroness that in this case she is quite right. The amendment does not subvert the clause. Instead it seeks to introduce uncertainty and delay into the repudiation process. That is why the amendment is unacceptable. Superficially it might seem to involve only a minor change to make it easier for unions to comply with the law. It will not improve the positive intent of subsection (5).

The amendment seeks to extend the time period between the Act coming to the knowledge of the principle executive committee or the president or general secretary, and the effective date of repudiation by providing, in effect, that repudiation occurs when written notice of the repudiation is sent to the official or committee who called the action.

I am not aware of any statistical evidence on the average turnround time for correspondence in large organisations, but it is clear that this provision could be manipulated to add several more days to the period, during which the unofficial action could continue with impunity. As the legislation stands, the date of repudiation is the date on which any of the specified union leaders makes the decision to repudiate the call for industrial action. The legislation requires them to do this, as my noble friend Lord Lucas said, as soon as reasonably practicable after coming to the knowledge of any of them. That allows a certain amount of leeway for them to investigate the circumstances of the dispute and make their decision.

The extra requirement which the amendment seeks to build in before repudiation becomes effective merely adds further delay which benefits nobody. I therefore hope that the noble Baroness will withdraw the amendment and that we do not see it again at Report stage.

Baroness Turner of Camden

I am rather surprised at the way in which the Minister has dismissed the intentions of this amendment. I believe that it makes things much clearer for everybody. If you have a lay executive it has to be called together. It has to be given notice and arrangements have to be made for it to come. It may take 48 hours to get it together. The executive may meet at the weekend. It then has to make its determination and the repudiation has to be issued.

I believe that it is a good idea to have a date for repudiation, that being the date on which a written notice is sent. However, the Minister does not feel disposed to accept the wording of the amendment. I shall look carefully at what he said in the Official Report tomorrow and see whether a different form of wording may be a possibility at Report stage. As he suggests, I do not feel inclined to let go of the idea completely. I shall think about the matter and perhaps I may return with a different wording on Report. It seems to me that what we are suggesting on this side of the Committee is quite sensible. The Minister agrees with me that the amendment is not subverting the clause but tightening things up so that everyone knows where they stand. Nevertheless, I do not intend to press the amendment at this hour of the night. I beg leave to withdraw it.

Amendment, by leave, withdrawn.

Lord McCarthy moved Amendment No. 27: Page 7, line 1, leave out from beginning to end of line 5 and insert: ("(b) the union shall do what is reasonably practicable to give notice without delay.— (i) to every member who the union has reason to believe is taking part, or is likely to take part, in industrial action as a result of the act either by individual notification or by such other publication which it is reasonable to believe will come to the attention of such members within reasonable time, and").

The noble Lord said: We are now discussing the issue of repudiation. The purpose of this amendment is to introduce a more reasonable set of repudiation conditions. It does that by making use of a phrase which is common in the Government's legislation in saying that something should be so far as is reasonably practicable. The Minister laughs but he likes the phrase when he uses it. Perhaps he will get used to it when we use it.

Let us go quickly over the theory of repudiation to see how reasonable it is. Repudiation in its new and extended scope has to be done for every official, committee or individual of the committee of the union. It is an action that must be taken by the principal executive of the union as soon as reasonably practicable after any of the principal executive members of the union have knowledge that something has been done which may be unlawful.

Action has to be produced in two directions. A specified letter has to be sent without delay to every member who the union has reason to believe is taking part, or who might otherwise take part, in the action, and to all the employers. As has been said by my noble friend, the union must act consistently with such repudiation or it will not count. It must affect all action by anybody who subsequently turns out to be acting unlawfully on any ground. It must be done as soon as anyone in the principal executive knows that it is taking place even if he has no idea as yet that it is unlawful. It may be that its illegality is not as obvious as was at first thought to be the case. It may not be that someone is refusing to have a ballot. It may be that there is or is subsequently found to be something unlawful or wrong in the way that the ballot is conducted; or it may in the end merely be that there is some form of injunctive remedy because there has been a serious case to answer as to whether or not it might have been unlawful in the first place. If the union had any reason to suppose that any of these eventualities might occur, the implications of the Bill are that it had better repudiate as soon as possible.

We leave intact the great majority of this blunderbuss. We merely suggest that in carrying out these requirements we should change or modify the necessity for a requirement in terms of an individual written notice. We allow in the terms of our amendment, in addition to the individual written notice, such other publication which it is reasonable to believe will come to the attention of such members". This could mean, for example, a branch circular or a shop steward's bulletin. It might even be a notice on a locker. There must be a publication. We do not say that we can go back to that horror of horrors for the Government - the shop floor meeting. We say that there must be a publication. But to insist that it should be an individual written notice is a great deal to expect, not so much in the context of the requirements so far, but in the context of the extension of the requirements involved in this part of the Bill. They are now to be extended to all officers of the union, any committee of the union and so on. In that context we say that the degree of participation and what is required for the revoking procedure should be modified in just a small way. That is the purpose of the amendment. I beg to move.

Lord Lucas of Chilworth

I meant no discourtesy to the noble Lord by my humorous interjection when he was describing the purpose of the amendment. I just found it extraordinarily humorous that, in moving her Amendment No. 26, the noble Baroness, Lady Turner, objected to the provisions in the Bill for repudiation as soon as reasonably practicable for a wide variety of reasons: calling the lay members, having weekend meetings and so on. Then in moving Amendment No. 27 the noble Lord, Lord McCarthy, wanted to insert the requirement that the union shall do what is reasonably practicable. That seems to be a contradiction in terms. He then added one or two small details of who and how.

All the amendments with which we are faced tonight in Clause 6 hinge around a piece of hurdle or fencing. None of them could sustain any kind of action. Anyone could walk through them. I wonder exactly what is the real purpose of this series of amendments. Whether it is early in the afternoon or later in the evening, they are nonsensical, quite contrary and quite contradictory to all that we have talked about throughout our debates.

Lord McCarthy

They are only contrary or contradictory if the object of the exercise is to tie down the workers and the union in every conceivable way. It may be that if one put them all together and if by some moment of aberration the Minister allowed us to have them all, the result would be somewhat confusing. It may be that there would be a good many of them. But we have to keep trying and putting it in this way and that way in the hope that we might make a little pinhead of a hole. Of course we never do.

My noble friend Lady Turner tries to do this in one way but the Minister does not like it. I try to do it in another way, but he does not like that either. We are just trying to make it easier for those who will have to implement the provisions of the legislation. Naturally, that is not what the noble Lord wants.

Lord Strathclyde

This amendment seeks to transform a clear statement of a union's repudiation into a lottery. It will make it uncertain who has been notified and how. It will benefit neither union, nor employer nor members. Of course, that is exactly what the noble Lord, Lord McCarthy, wants.

The arrangements to be established by Clause 6 mean, among other things, that a union is to be free to avoid liability for an act done, authorised or endorsed by any of its lay officers or officials if it is prepared to repudiate the act or acts in question effectively. But there can be no excuse for leaving a union free to do this in a hole-in-corner way; it is an essential part of the policy behind these provisions that the union should have to make its position quite clear to all those most directly concerned. Accordingly, following repudiation by the PEC, president or general secretary, a union will in future have to do its best to give individual written notice of its repudiation to all its members who were or might have been induced, and to their employers. However, this is not an absolute duty—which we recognise might be impossible for a union ever to satisfy in this context—but the requirements are couched in terms which mean that a union which did not make a sufficient effort to satisfy the conditions would be at risk of an injunction or damages.

Amendment No. 27 seeks to replace the requirement in Section 15(5)(b) of the 1982 Act by providing that if a union gives individual notification to those members it believes are taking, or are likely to take, part in the industrial action, or puts the repudiation notice into its journal or one of its circulars that relevant members normally receive or see "within reasonable time", that would be held to satisfy the requirements of new Section 15(5)(b).

However, although the amendment provides that the union could give individual notification to all its relevant members, it does not specify what form this notification should take. It is not even necessary that the notice be written. Similarly, it only states that the journal should be seen by members "within a reasonable time". What may be a reasonable time for the compilation and publication of a union journal is unlikely to correspond to the provisions of Clause 8(4) which allows one working day between the date of repudiation and the date on which the employer may start selectively to dismiss those taking the unofficial action.

If there was a dispute about whether a union had satisfied the requirements of Section 15(5)(b), it would be for a court to determine the matter in the light of the full facts. The amendment would make it very likely that neither the employer, nor the union members, nor even the union itself would know whether it had effectively repudiated the action. That cannot be in anyone's interest.

The Opposition's amendment simply reveals yet again what my noble friend Lord Lucas of Chilworth wanted to say but in fact did not; namely, that noble Lords opposite want unions to be able to continue to fudge and mudge and to leave doubts as to whether a union has effectively repudiated a relevant act. Perhaps they did not hear my noble friend Lord Harmar-Nicholls say that we should leave the Bill as it is and that we should stop looking for chinks in the armour. There cannot be any pin-holes because we must cover every position so that the union is left with no choice but to repudiate the action and therefore escape any liability. It is as simple as that.

Lord McCarthy

I hope that the Minister has finished reciting the contents of the Bill. Even if he does misrepresent my arguments, that is, at least, a 50 per cent. improvement in the situation. However, he misrepresented my arguments in two inconsistent ways. He said, first, that what is proposed is too wide and that it would help the union. He also said that it brings us back to fudge and mudge. However, he then said that it would help neither the union nor its members and that that was what I wanted.

I suppose that that is the kind of argument we can expect to receive at this time of night. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Chairman of Committees

I should remind Members of the Committee that if Amendment No. 28 is agreed to, I cannot call Amendments Nos. 29 and 30.

Lord Rochester moved Amendment No. 28: Page 7, leave out lines 9 to 12 and insert: (" 'Your union has learned of the call for unofficial industrial action to which this notice relates and is doing all it can to resolve the dispute in question. Meanwhile you should return to normal working. Otherwise you may be dismissed and you will then be unable to complain of unfair dismissal.' ").

The noble Lord said: On Second Reading I drew attention to the peremptory form in which the notice of repudiation of industrial action must be given by the union to its members under this clause. I added that at Report stage in another place the Minister of State for Employment had eventually seen the point and had said that the Government, are prepared to consider whether the proposed words for the union's repudiation statement are the best and most apt in all the circumstances … We shall not close our minds on that issue.—[Official Report Commons, 17/5/90; col. 1071.]

The amendment gives the Committee the opportunity to test the Minister's words. The statement, as it now stands in the Bill and as it will stand with the addition of the proposed Government amendments grouped with this amendment, is altogether too blunt, and even provocative, to facilitate the reduction in unofficial action that we all wish to see.

Those Members of the Committee who have experience of dealing with such action will agree with me that it is helpful if the union becomes involved as soon as possible, and if members know not just that the union is aware of the dispute but that it is taking urgent action to resolve it. That explains the first sentence of my amendment.

Such an approach is more likely to keep the union and its members together, and so help in reaching a settlement, than if the union is obliged immediately explicitly to repudiate the actions of its members in the words of subsection (5) (a) and thus limit its freedom to manoeuvre in helping to end the dispute. Of one thing I am sure: that well-managed companies would not for a moment think of using such language when dealing with their employees. Why should a union be obliged by law to do so?

Similarly, the second sentence of the amendment, rather negatively emphasising the union's unwillingness to support its members, as the subsection proposes, tells them positively to resume normal working. The last sentence makes the effect of the members' action—that is, possible dismissal and the inability to claim that it is unfair—plain enough to them, without labouring the point already made in the first sentence that that action is unofficial.

If the subsection is allowed to remain as it is, the union will no doubt tell its members that it is repudiating and will give their action no support; but in doing so it may well be more inclined to add that it proposes to organise a ballot to make their action official, which will help no one.

There may well be flaws in the wording of my amendment; but it, or something like it, is more likely to lead to the settlement of disputes and the limitation of unofficial industrial action than the stark words proposed by the Government in the Bill. I beg to move.

11.15 p.m.

Lord Wedderburn of Charlton

We are discussing Amendment No. 28 moved by the noble Lord, Lord Rochester, Amendments Nos. 29 and 30 tabled by the Government, and our Amendment No. 31. I shall take four points, if I may. It is curious that it has not proved more distasteful to more people that persons or bodies should be subjected to Government diktat about the words that they must say or write. I find that distasteful. I am surprised that the Government have found it necessary to go so far. It does riot seem to us that the evidence, such as it is, requires that action.

However, the Government are not just telling the union that it must send a notice; they are writing it for the union. After what we have heard this evening, Ministers will soon be telling trade unions what they wanted to say, but did not. There is no doubt a point in sending a notice to members to inform them of the position. In so far as the notice is informational, we have suggested that it is inadequate, which is why we tabled Amendment No. 31.

At the moment, the required confession tells members of the position in relation to unofficial industrial action. If members are to be given information on the legal position, they are entitled to be given a comprehensive view. They are therefore entitled to know that even if the union authorises or endorses the industrial action and they take part in it, none will have a right to complain of unfair dismissal if the employer dismisses them all. To omit that part of the necessary propositions is to make all the statements written compulsorily rather misleading. The members may think that the action is endorsed and if they come out on strike after a ballot they cannot be dismissed, or at least that they have a right to complain of unfair dismissal. The Government should look at the misleading effect of their words.

I quite understand that the noble Lord on the Liberal Benches moved the amendment with the intention that he put to the Committee of easing all the difficulties the wording of the Bill would entail. However, I fear that we do not find the noble Lord's words an improvement. For example, to force a union to write "You should return to normal working" is—to make the point by reference—to step firmly in that direction on which the noble and learned Lord, Lord Devlin, poured scorn in the report on the ports industry in 1965. It concerned making the union the policeman in industry. I could not agree with the noble Lord and the noble Baroness on such a statement written compulsorily.

A further problem arises where, after the statement is made, in the Government's wording a district official is found not to be doing all that he can, or is not abstaining from support. The union is liable for that until it repudiates him again. Finally, what is the legal standing of these statements? The union is made to promise by law that it will give no support to such action. Is that promise made with the intention to create a legal relationship? Is it something on which the persons to whom it is made can rely? What is the union's liability?

I ask the Minister to comment, first, on the case of an official who does not do what the statement says the union is doing. In the light of the rest of the clause the union is liable until it repudiates him again. Secondly, apart from that vicarious liability, what is the legal status of the statement itself? Is it capable of being contractual or of giving rise to other liabilities? There is no legal defence in the Bill to any liability—no privilege or immunity. The Government must have thought about this and will no doubt give us an answer. That point was not traversed in the other place. In the light of that, the Committee will not be surprised to know that we cannot support this method of forcing the union to make the statements in the proposed amendment.

Lord Wade of Chorlton

As I understand it, we are dealing with a practical situation where, as a result of unofficial advice, an unofficial strike takes place in a company. No work is done. Everything is brought to a halt because of unofficial action which the union plans to repudiate. Is it not in the interests of the union and everyone else for the matter to be put right as soon as possible? That will benefit those who are not obtaining service, the company that has come to a halt and those whose jobs are affected.

I should have thought it would be in the interests of everyone, particularly the noble Lord who is fervently in favour of trade unions, to have a clear-cut system. There should be non-provocative wording to bring the employees back to work in the shortest possible time. I hate to disagree with the noble Lord, Lord Rochester, but the government wording clears the point that it might not be right for people to use such blunt language. In this instance, blunt language is necessary to put the matter clearly to bed as soon as possible and to get people back to work.

Lord Strathclyde

The Green Paper Unofficial Action and the Law proposed that when a union repudiated a call for industrial action by any of its officials, it should be required to make it clear to all relevant members that the repudiation was unequivocal. That is the purpose of having a statement which is required to be part of the written notice of repudiation which a union will have to send to relevant members when it repudiates such a call. I stress that a union will be free to put other statements or remarks on a repudiation notice. Doing so will not affect the status of the written notification as part of the effective repudiation procedure unless any such additional statement is not compatible with the repudiation itself. That is the point that my noble friend Lord Wade made.

As the noble Lord, Lord Rochester, said, the Minister of State in another place promised to give consideration to the required statement as it appeared in the Bill with a view to ensuring that it was quite apt. Following that consideration, we have tabled Amendments Nos. 29 and 30 because we believe that they ensure the required statement better reflects the actual nature of the repudiation process and what it involves.

As regards Amendment No. 28, it is common ground that unions should do all they can to help to resolve disputes and to discourage their members from taking unnecessary industrial action. As an example of the Government's position on these matters, a statutory code of practice on trade union ballots and industrial action recommends the union should do whatever is practicable to resolve disputes without recourse to organising industrial action. However, the resolution of disputes must be left to the parties directly involved. It is by no means an automatic presumption that they will include a union, even where union members are taking industrial action. For example, even in such circumstances, or where a union official has called for industrial action by union members, it should be open to a union to decide that it wanted nothing whatsoever to do with a dispute or with its resolution. I hope that is not a likely scenario, but it is a possible scenario and it is one which the amendment of the noble Lord, Lord Rochester, would not be able to cater for.

Amendment No. 31 seeks to add words which have nothing to do with the repudiation process and have no necessary relevance to union members receiving such a notice. There is no need to require the repudiation notice to say anything about liability to non-selective dismissal while taking industrial action.

Doubtless some sort of argument could be mounted for telling union members about almost any aspect of the law—for example, that they have a remedy if their union attempts to discipline them for taking part in industrial action, or that calling for industrial action to establish or maintain any kind of closed shop practice is unlawful. However, the truth is that these provisions have no more necessary relevance to a repudiation notice than those which the Opposition propose to add. Where industrial action would be unofficial by virtue of a union's repudiation of a relevant act, the written notice of its repudiation should leave members in no doubt about where their union stands. That is what the required statement helps to achieve. Bearing that in mind, I hope that the Members of the Committee opposite will accept the Government's amendments and withdraw their own.

Lord Rochester

I am naturally sorry that the noble Lord, Lord Wedderburn, did not feel able to support this amendment. There have been a number of amendments which he has moved today with which I have disagreed, and therefore he is quite entitled to take the view that he has. In any case, my aim here, as I hope I made plain, was to test the words of the Minister in another place. I have taken the view that the notice as it stands, and as it will stand if the Government's amendments are accepted, is altogether too stark. I believe that is the word I used.

My fear is that if the clause remains as it is, a union will do what it is told to do by statute; but it may well be more inclined in doing so to add that it proposes to organise a ballot with a view to initiating official action. I believe I said that earlier. However, it is plain from what the Minister has said that the Government believe that, with the addition of the words that they have introduced, the wording in the Bill is the most apt in the circumstances. Having put the matter to the Committee in that way, I have no alternative at this stage but to withdraw my amendment.

Amendment, by leave, withdrawn.

11.30 p.m.

Lord Strathclyde moved Amendment No. 29: Page 7, line 9, leave out ("any call") and insert ("the call (or calls)").

On Question, amendment agreed to.

Lord Strathclyde moved Amendment No. 30: Page 7 line 10, leave out ("such action") and insert ("unofficial industrial action taken in response to it (or them)").

On Question, amendment agreed to.

[Amendment No. 31 not moved.]

Lord Wedderburn of Charlton moved Amendment No. 32: Page 7, line 21, leave out paragraph (a) and insert: ("(a) is a party to a relevant commercial contract;").

The noble Lord said: The amendment raises a point which comes later - possibly six months later - in the process of repudiation. It relates to new subsection (6A) which requires that the union respond in the way set out to a request within six months of the purported repudiation where the person involved: is a party to a commercial contract whose performance has been or may be interfered with as a result of the act in question and has not previously been told of the notification of repudiation.

I had some sympathy with one remark of the noble Lord, Lord Wade, who said that, in the situation with which this clause particularly deals, it was right to settle the matter as soon as possible. I have no quarrel with that. In certain ways, some of our amendments have been directed to that. The problem here is that the union cannot be sure whether its repudiation has stuck until six months have passed.

Furthermore, our amendment does not try to unseat the Government's position in that respect. That would be an exception that would make the Minister respond in a way that we all recognise. It seeks to modify the position. The Government are introducing a risk for the unions that someone of whom they have never heard, about whom they know nothing and whose commercial contract might have been interfered with will write to them. The tenses in the Bill are rather strange, but I take it that the union will receive a letter saying, "My commercial contract is one of which the performance either has been or might have been interfered with. Will you please confirm your repudiation?". That is unnecessarily burdensome.

The normal principles on which one proceeds surely in regard to the kind of liabilities that can emerge from an interference with the performance of contract are those which, broadly speaking, are similar to the tortious liability since Lumley v. Gye in 1853, where some kind of knowledge and intention is required. We have put it on the footing, possibly even less advantageous to the union, that the commercial contract must be one that the union could reasonably foresee would be substantially interfered with at the time of the act. If the union could not possibly reasonably foresee that a contract would be invoked, it seems rather onerous that a person with some other contract could act.

Let me take an example. I agree with the noble Lord that the normal case will be spontaneous action in the plant or office. We must never forget that it is not only in the plant that these actions occur. White collar workers have their problems too. But I cited the example in Truro. I do not know why, but I did. The union officials did their best to settle the grievance and the union repudiated the action as required. It consulted its lawyers—and it will have to consult its lawyers on many such matters which will create their own problems as well as expense. The matter is thought to be settled and the file put away. They congratulate themselves.

Unhappily, the General Secretary and the Truro branch secretary are both rather unwell and die three months later. Two months after that the new General Secretary gets a letter from someone in John O'Groats who says that his contract was or might have been interfered with by this action, which by now almost everyone has forgotten. Indeed, no branch minutes can be found because the Truro branch secretary's wife—many branches operate from home—cannot find them. One day short of the six months' limitation period there appear letters from parties to commercial contracts from various parts of the globe—because I apprehend that this is not necessarily limited to the United Kingdom in its extent. That cannot be reasonable.

I quite understand that the Minister is tired of our amendments and we must apologise for them. But surely that kind of situation cannot be something that this legislature wants to put on the statute book. Some limitation to new subsection 6(A) must surely be allowed. There must surely be a limitation to commercial contracts which are within the foresight or apprehension of somebody at the time of the relevant act which is being repudiated. Otherwise, quite the opposite situation will arise from that which the noble Lord indicated to us.

The matter will not be settled as soon as reasonably possible. The question of whether the union has effectively repudiated will hang about for month after month waiting to find out whether anybody writes in and whether the requisite letter is sent in return. I cannot believe that that is a sensible system of law. It is certainly not one of which I know any parallel anywhere in the world.

If the Minister can give us any kind of assurance on this point, I think we should all be very happy to see some improvement made in what is a not very sensible part of the Bill. I beg to move.

Lord Strathclyde

I rather feel that the noble Lord, Lord Wedderburn, is making very heavy weather of all this. The provisions of the new Section 15(6A) are not necessarily the most significant or important of the changes that Clause 6 would make to Section 15 of the 1982 Act; nonetheless they are useful and logical changes. There is certainly no case for removing these provisions or modifying them in the way proposed by the amendment.

The new section recognises that there are others, besides relevant union members and the employer or employers of any such member, who have a legitimate interest in knowing whether a relevant act has been repudiated by a union. To give an example: a vehicle manufacturer might be properly interested to know about the status of industrial action being called or taken if it affected the supply of some key component—even though the inducement arose in the context of a dispute between workers and another employer.

The provisions recognise that the interest of any such party is not to be taken as "automatic" in the same way as, for example, the interest of the employer of members who are the target of the relevant act of inducement to take industrial action. That is why the new Section 15(6A) only requires a union to "confirm" its repudiation "on request" from a party to a commercial contract.

There does not seem to be any reason to limit the right to request (as proposed by these amendments) and obtain relevant information to those who can convince or persuade the union that they face "significant" problems. It is quite enough that there would be some effect in terms of interference with commercial contracts. Indeed, that is the "normal" test in respect of tort. On that basis I hope that the noble Lord will read carefully what I have said and will withdraw the amendment.

Lord Harmar-Nicholls

As a listener, if I had to give a judgment on the submission that the noble Lord, Lord Wedderburn, gave on his amendment, I should have thought that the submission proved that the words in the Bill were about right. He had to kill two people; he had to have a widow left who could not read or write; and so on. It was an amazing submission; one had to go to those extremes to prove the point. It was rather like the prim old lady who called in the police to say that the chap in the window opposite was doing things that she found rather unpleasant. When the police said, "But you cannot see in that window," she replied, "You pull up a table, put a chair on top, stand on top of that, and then you'll be able to see." It was a submission that was not in keeping with the normal clarity of the noble Lord.

Lord Wedderburn of Charlton

I am sorry that I did not tempt the noble Lord, Lord Harmar-Nicholls, into the spirit of the example. I appreciate that I would never win many cases in front of him if he were on the Bench.

My submission was a quite absurd case. But it is one way of testing a Bill. One does not test a Bill with the easy cases. Anyone can do that. One tests a Bill with the absurd cases. One says, "That is ridiculous. Of course the union would not be liable there." But they would.

I put the submission the other way, as the noble Lord wishes. The Minister mentioned that the position was parallel to liability in tort. With great respect, that is wrong. Such liability in tort involves some knowledge, intention or foresight in respect of the new-(angled liabilities. Those examples are not absolute. The parallel is absolute.

Secondly, the noble Lord says that the union has only to confirm. The union can hardly do anything else. The union cannot write letters to all the traders in the world saying, "By the way, do you have a contract that might be interfered with by the action that was repudiated five months ago?" Of course the union can only confirm. Even the Government cannot go further than that.

Thirdly, and most importantly, I waited to see whether the Minister's examples were of contracts which were not reasonably foreseeable by the union as involving an interference of their performance. He gave no such examples. The example that he gave was a fair one which would fall within our amendment. Our amendment would make his contract between the vehicle manufacturer and the component manufacturers manifestly and reasonably foreseeable by the union. Indeed, if the union has to work to this structure, it might wish to write off its own bat to the component manufacture, "This is all off. We have repudiated it."

The Minister's example represents a speech for the amendment. He has not produced one example (nor were examples produced in another place) of a contract, not foreseeable by the union or known about by the union, where the Government say that it would be reasonable for the union to be at risk of a letter during a period of six months which, if there were to be a mistake, could totally destroy its repudiation. The liability is absolute.

If the repudiation is destroyed, the liability to damages for a particular period of interference with the contract could be quite substantial. Yet such liability will turn upon adventitious factors which even the Government cannot defend by giving an example of a contract in the performance of which interference is not foreseeable.

I believe that the Minister's response puts an obligation on the Government to consider this matter before Report. It is most serious. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

11.45 p.m.

Lord McCarthy moved Amendment No.33: Page 7, line 26 leave out ("forthwith") and insert ("within two weeks").

The noble Lord said: This is without doubt the tiniest amendment of the day. Since the Government have not listened to any previous submissions—we have not made so much as a pinhole—we hope that they will consider the possibility of changing the word "forthwith". I cannot imagine who this mysterious vehicle manufacturer would be, or the circumstances under which this situation would arise. However, when this imaginary vehicle manufacturer comes out of the bush and says, "Five months, three weeks, two days ago, I believe there may have been a repudiation that affects me," without looking at the record, without knowing what on earth it is about, the union has to send a letter in writing "forthwith". When I looked up the word "forthwith" in the Oxford English Dictionary it stated "immediately". I could not even find "without delay". We say, "For goodness sake, you might give them two weeks". I beg to move.

Lord Strathclyde

The amendment adds an arbitrary period of two weeks to the requirement to inform a customer or supplier whether the union had or had not effectively repudiated a relevant act which had affected or could well affect commercial contracts to which it was party.

It is worthwhile pointing out—and perhaps the noble Lord, Lord McCarthy, has overlooked the point—that the union is only being asked to confirm something that has already happened. The union is, of course, entitled to expect the request to be made in appropriate terms which enable the union to identify the inducement which the customer or supplier wishes to know about. It will then be a very simple matter to confirm that the inducement has been repudiated where that is the position. A court would not expect a union to do more than was practicable to satisfy the requirement to respond to the inquiry forthwith.

I see no reason why it should be preferable to fix a standard period of two weeks during which a union could ignore a relevant request, provided that it responded at the end of that period. I cannot see the argument.

Lord McCarthy

Suppose that the note comes in five months and four days after the event. The first thing that the poor old general secretary will ask is "How do we know that it was us and not the AEU or the T&G?". Unless the Government want the union to send out repudiation notices that have nothing to do with it, it should be given a few days to ring round and find out who was responsible. Perhaps nobody was responsible. The union should have some time. It should not have to respond forthwith, or immediately, but within two weeks.

Lord Strathclyde

Will the noble Lord accept that we are not talking here about repudiation but about confirmation? That is all. It has nothing to do with any other union. Surely the union will know whether it repudiated something, even it it was five months ago. It just has to confirm it. It is simple.

Lord McCarthy

What the union repudiated was a primary action, because it made everything else illegal. Here, from out of the blue, comes not the man who was involved in the primary action, not the man the union wrote to—the union keeps his letter on file—but a vehicle manufacturer who is a party to a commercial contract. The union will not know how many people who are party to commercial contracts were involved in its strike six months ago. Give the union a fortnight to find out.

Lord Strathclyde

I believe that the noble Lord, Lord McCarthy, is getting excited about nothing. He simply has not proved his case that it is not possible for the union simply to confirm that it has repudiated something. It cannot be that difficult. The court would not expect a union to do more than was practicable to satisfy the requirement to respond to the inquiry forthwith. That is why I feel that the noble Lord is getting excited about nothing. He has not made his case.

Lord McCarthy

Is the noble Lord saying that the union should repudiate it whether or not it was involved, whether or not it was the AEU, that that does not matter and the union should just repudiate immediately? Why can it not have time to find out whether it was involved?

Lord Strathclyde

I am not sure that the noble Lord has yet grasped that we are not talking about repudiation but confirmation. All the union has to do is confirm "Yes, we repudiate it". By all means, why does the union not confirm that it repudiated action which had nothing to do with it? It does not seem to make much difference so long as the union provides the confirmation.

Lord Wedderburn of Charlton

Suppose that the union does not believe the letter it receives. Suppose that it thinks that the company is trying it on again. Suppose that it thinks "He is a confirmation of repudiation collector. We do not believe him. He did not have a contract". Is the union allowed to check up? Is that permitted within "forthwith"? Does it have time to do that?

The Minister must take the matter seriously. Here is a union, a responsible body, which first has its hands tied as to the words it must write in its repudiation and now is to write compulsory letters. Some general secretaries and national executives will not take easily to that. If the Government say that they are not even to have time to check up on the bona fides of letters they receive, that will stick in their gullets even more. If they are to have time then "forthwith" seems rather strict.

Lord Strathclyde

The noble Lord has failed to appreciate that the amendment we are discussing does not change the position. The trade union could easily wait two weeks before it sent off its confirmation and exactly the same situation would exist as if it were sent forthwith.

Lord McCarthy

We have had this so often in the past. In effect, the noble Lord says to us that he has reason to believe that a judge would say that a fortnight is "forthwith". He cannot say that. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 34 not moved.]

Lord McCarthy moved Amendment No. 35: Page 7, line 33, at end insert: ("(7A) The Secretary of State shall by regulations make a scheme providing for payments by the Certification Officer towards expenditure incurred by independent trade unions in respect of such payments required in giving notice to members by reason of this section under section 15(5) (b) (i) of the Employment Act 1982.").

The noble Lord said: This is a small attempt to make the Minister generous. Since the 1980 Act, the Government have introduced a payment scheme for ballots. We are suggesting that that state payment scheme should be used, invoked and operated for repudiation notices.

The Committee will remember that Section 1 of the 1988 Act created the state payment scheme in respect of secret ballots under the control of a certification officer. It covered a whole range of ballots on industrial action, elections, and so on. As a result of that scheme, last year the registrar's report said that 67 unions applied for refunds for 483 ballots to a total value of £1.3 million; that is, something like 50 per cent. of the cost of those ballots, because the scheme does not cover the whole cost.

We are saying that if repudiation gets under way there will be a considerable cost to a union because that must be done in the way prescribed by the Bill. A personal letter must be sent not only to all the workers involved but also to all the employers involved. The Government are imposing the costs of that upon the union. They have accepted in the past that as regards the cost of the ballot requirements for the unions they should provide some support. It is only reasonable to suggest that a similar scheme should cover repudiation. I beg to move.

Lord Strathclyde

It is exceptional for the costs of carrying out statutory duties to be subsidised from public funds. The position in respect of trade unions is no different and there is no good reason why the public should bear any of the costs which properly fall upon trade unions in discharging their statutory duties.

By contrast, the ballot funding scheme was established to encourage the voluntary extension of balloting before industrial action. The law was subsequently changed to require unions to ballot their members as a condition of securing immunity from legal proceedings but the Government have not as yet seen fit to terminate the scheme. If the Opposition is concerned about an alleged inconsistency, that can soon be removed by the abolition of the ballot funding scheme, although I must add that at present there are no plans to do so.

Lord McCarthy

The noble Lord must have left his brief. I cannot believe that his adviser has written that, even at ten to midnight. Are the Government really telling us that they are going to abolish the statutory ballot scheme? What an argument. That is what the Minister is threatening. He is saying that we should not ask for this or they will take away that. I cannot believe that that is a reasonable, sensible, logical answer.

Lord Strathclyde

The noble Lord knows that that is not what I said. He argued that there was an inconsistency. There need not be an inconsistency. There is no inconsistency and there is no basic right that statutory duties should be subsidised from public funds. It is as simple as that. I made the position quite plain as regards the ballot funding scheme. The Government have no plans to abolish it.

Lord Wedderburn of Charlton

What the Minister says is rather worrying. He says that there is a juridical difference between this clause and those clauses concerning ballots. He says that that is why no funds can be provided here but can be provided there. He says that that is a statutory duty. I do not follow that.

It is rather worrying that that has been introduced as a statutory duty. There is no statutory duty on the union to repudiate. If it chooses not to do so, it is liable. If it chooses not to hold a ballot, it is liable if the employer sues. There is no difference whatever. Both are matters of civil liability and both are conditions imposed by statute framing the civil liability or exculpation. There is no ground whatever for saying that one is a statutory duty and the other is not. If that is the Government's case, the sooner they produce the money to fulfil the work they are creating, the better.

Lord Strathclyde

The noble Lord is right. The union has a very clear choice as to what it does; the point of the statutory duty is that it gives the choice. However, as I said—though I do not believe the noble Lord heard me the first time—the ballot funding scheme was established to encourage the voluntary extension of balloting before industrial action. The law was subsequently changed to require unions to ballot their members as a condition of securing immunity from legal proceedings. Just because we did that then, does not mean that we need to do it now. It is as simple as that.

Lord McCarthy

It is not as simple as that. The Minister says: "When we introduced the scheme we gave you the money because it was voluntary". If that had been the Government's policy, they should have taken the money away when the scheme was made statutory. That would have been consistent. We would have complained and said that it was typical of the Government; but at least it would have been consistent. If they had done that, we would have had no case to bring before them tonight.

For whatever reason, perhaps because they were thinking logically for five minutes, the Government did not do that. They allowed a situation to be created in which the scheme became a statutory scheme; in which there were no options and in which it was compulsory, and they gave the money to fund it. That is the present position. Now along comes another statutory scheme. Under this statutory scheme they are saying that there shall be no money. That is inconsistent and unfair.

Lord Strathclyde

There is nothing more that I can usefully add. If the noble Lord does not accept what I have said, then I am sorry. We do not see why public funds should be used to subsidise this scheme. The noble Lord has not made a case except to say that because we provide funds in one case, we should do so in another. That is not much of an argument.

Lord McCarthy

I shall not divide the Committee tonight. I shall bring this matter back on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Wedderburn of Charlton moved Amendment No. 36: Page 7, line 33, at end insert: ("(7A) Nothing in this section shall render a trade union liable for any act done by an official at a time when he has, in accordance with the rules, ceased to be an official of the trade union.").

The noble Lord said: Amendment No. 36 touches on a point which goes to the whole clause. This clause makes the Bill as it stands, especially in the light of the debate, legally ambiguous; indeed it is almost impossible. The reason is fundamentally the difficulty that one gets into when one tries to create vicarious liability without any reference to authority in the doctrines of agency.

The new subsection (3B) excludes the rules of the union for the purpose of the application of the preceding paragraphs (b) and (c) of the new subsection (3). Clause 6(7) repeals the definition of "official" which hitherto applied in Section 15 of the 1982 Act. In another place it was quite rightly pointed out by government ministers that the definition of official that will apply to the Bill is contained in Section 30 of the Trade Union and Labour Relations Act 1974. It is necessary to read a few words of that definition. It says that the word, 'official', in relation to a trade union, means any person who is an officer of the union or of a branch or section of the union or who (not being such an officer) is a person elected or appointed in accordance with the rules of the union to be a representative of its members or some of them, including any person so elected or appointed who is an employee of the same employer as the members". That last phrase normally makes us think of shop stewards and other lay representatives.

Therefore the new subsection (3B) excludes part of the definition and the whole clause becomes circular in its ambiguity. If a shop steward is appointed without any authority under the rules of the union and induces members to take industrial action, then the union is liable. That is clear. Theoretically—and to some extent in practice—the union can then repudiate under the new and cumbersome procedures of repudiation. However, let us suppose that the union's national executive committee, fearing that the shop steward or any other representative is to commit some further act for which the union may be liable, and—to go into the vortex of continuous repudiation—let us suppose it withdraws his credentials, to put it in the way that would apply to a number of unions, what happens if he now induces members on the shop floor to take further action? The withdrawal of credentials would, under many rule books, amount to the end of his status as an official. But we are not allowed to look at the rule book. The new subsection (3B) states: The provisions of paragraphs (b) and (c)" of subsection (3)— they are the paragraphs that create liability— apply notwithstanding anything in the rules of the union". How does the union cause an official to cease to be an official? We submit that the amendment is necessary as a matter of pure commonsense to say that in accordance with its rules, which is in accordance with the definition in Section 30 of the 1974 Act, the official ceases to be an official when the union ends that relationship. I cannot believe that the Minister will find this an impossible amendment. I beg to move.

12 midnight

Lord Strathclyde

The amendment would enable a union to avoid potential liability for any relevant act of its officials or committees if the union happened to have a rule which provided that in relevant circumstances an official who did a certain act was no longer to be regarded as an official—the obvious implication of the amendment. What would happen if any such option was to be open to unions? It must be reasonable to assume that unions would proceed forthwith to make such rules as were necessary to restore the status quo. Certainly the union's rules might then deny shop stewards the authority to call for industrial action on behalf of the union. But would members appreciate that sort of technical difference? I venture to suggest they would not.

Paragraph 2.7 of the Green Paper explained: Unofficial action may be seen by a union as a useful means of putting pressure on an employer before or during negotiations". As I said in reply to a previous amendment in regard to British Coal, the National Union of Mineworkers has rules which preclude officials below a certain level in the union hierarchy from calling for industrial action on the union's behalf. However, in reality there has often been very close involvement by lay officials in industrial action affecting particular collieries and the union has failed to intervene in any way. On that basis I do not feel that the amendment can be accepted.

Lord Wedderburn of Charlton

I accept one point made by the Minister. An automatic cesser clause—that is, words which made the official cease to be an official in the event of certain facts which might create liability—would evade the purpose of the new section. It would be easy to amend the words of our amendment to avoid automatic forfeiture, so to speak. However, with the rest of his remarks the Minister confirmed my worst fears. It seems that once you are an official within the meaning of Section 30 of the 1974 Act you are an official for ever—for life if you want. The union can never get rid of you under its rules and that is the end of the matter.

I thought we were in Alice in Wonderland earlier in the evening but something more Kafka-like now begins to appear in the Bill. Unions when they appoint officials—however they do so, and it is done in many different ways—and especially lay officials cannot rely on their rules ever to get rid of them. I cannot believe that the Minister wants that in the Bill. I cannot believe that the courts would accept that that is in the Bill because it is so absurd that surely they would find a way round it.

Lord Strathclyde

The Government certainly do not want to look absurd in putting through this legislation and it is fair that the noble Lord, Lord Wedderburn, should point out the inadequacy of this point. I do not like the amendment but there may be something in what the noble Lord says so on that basis I am happy to reconsider the matter without any commitment to bringing forward something on Report. However, I will examine the position carefully.

Lord Wedderburn of Charlton

I am grateful to the Minister for that minimum statement of reassurance. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Chairman of Committees

If Amendment No.37 is agreed to I cannot call Amendments Nos. 38 or 39.

Lord Wedderburn of Charlton moved Amendment No. 37: Page 8, leave out lines 5 to 7.

The noble Lord said: There is a certain difficulty about this matter at this hour. Perhaps I may explain to the Committee what I propose to do about it. Amendment No. 37 deals with that part of Clause 6 that goes into something different from the rest of the clause. Similarly, Amendments Nos. 38 and 39, which are grouped with it, and Amendment No. 59, which has been brought into the same group, deal with contiguous matters.

The place of the interlocutory injunction is what really matters at the end of Clause 6. What really matters is that, if the union is liable, can someone easily get a court order against it? The answer is yes, and unfairly so. We say that when vicarious liability is extended as has been done here, the ease with which the interlocutory injunction can be obtained and, in addition, the risks of contempt of court that the union may have to bear are much too great.

Subsection (8) gives the courts power to make wider orders than is customary. That is then applied as well to contempt of court proceedings. The reason I have spoken to these amendments is that it is necessary to put on record our firm conviction about these procedures on interlocutory injunctions, in particular in relation to ex parte injunctions, and even in respect of the extensions of liability in recent years in relation to contempt of court. In order to stop anyone leaping in about enforcing the orders of the court, I say that they must be enforced. The judgments that are enforced by contempt of court powers in the High Court in England in particular are sanctioned by very severe remedies, and not merely in trade union matters, which are totally unmatched in civil jurisdictions in the courts of most countries in Europe.

These are matters on which I wish to speak. However, I put on record our concern with this area. We are particularly concerned with the extensions both of liability and of enforcement powers in Clause 6(8). I put the matter that way because there is not grouped with these amendments the subsequent Amendment No. 56. The issue which we wish to raise in connection with injunctions can perhaps be more properly raised on Thursday rather than now. It is not possible not to move these amendments because that would mean that we registered no point about them. They are not amendments about which I wish to develop a long argument at this time of night. It is a somewhat technical argument that I shall have to develop. With those remarks I move this amendment with a clear indication to the Minister that I shall ask leave to withdraw it. I beg to move.

Lord Strathclyde

As the noble Lord has said these amendments bring us into the territory of a matter which I know is one which Members of the Committee opposite regard very strongly. It may be helpful if I first address Amendments Nos. 37 and 80. These seek to remove the provisions of Section 15 and Section 1 of the 1988 Act proposed by the Bill. The effect would be to prevent the provisions of Section 15 of the 1982 Act from applying to contempt of court proceedings. I should add that Amendment No. 38 appears somewhat otiose since it proposes to remove a word that is in one of the lines that Amendment No. 37 proposes to delete.

Following our earlier debates on Clause 6, I think we can say that there is no dispute between the Government and Members of the Committee opposite that the provisions of Section 15, and of that section as it would be amended by Clause 6, create special conditions for establishing a union's vicarious liability for certain acts of its officials and committees. We may not agree on the need for such arrangements but we can surely accept their reality. Section 15 establishes potential union liability for certain tortious acts. It also applies to the determination of whether a union is to be held to have induced members to take industrial action for the purposes of Section 1 of the 1988 Employment Act.

If relevant proceedings are brought against a union, and the court issues an injunction or order against the union, the terms of that order may require the union to refrain from doing certain things, or may indeed require it to take certain steps. The question then arises of how to determine whether what a union official then does, or fails to do, following the issue of the injunction or order, is to be taken to be an "act of the union" for the purposes of determining whether the union has obeyed the terms of the injunction or court order.

The Government believe that for such purposes it must be sensible to apply the provisions of Section 15 in the same way. That is precisely what Clause 6(8) proposes in the words which Amendment No. 37 seeks to remove: The provisions of this section apply in relation to proceedings for failure to comply with any such injunction or interdict as they apply in relation to the original proceedings". The previsions of Paragraph 3(4) of Schedule 2, which Amendment No. 80 seeks to delete, do the same in respect of proceedings which may follow the issue of an order against a union under Section 1 of the 1988 Act. Without that provision, the courts would apply common law principles of vicarious liability, as is apparent from the judgment in the case in 1985 of Express and Star Ltd. v. NGA. But it cannot be right to allow, for example, a shop steward, whose act of calling for industrial action has led to an injunction being awarded against the union, to flaunt an order of the court which requires the union to withdraw the call without laying the union open to possible contempt of court proceedings. Yet that is exactly what might happen if these amendments were accepted.

Amendments Nos. 39 and 81 appear to be deigned to make it impossible to obtain ex parte injunctions if any such application depends on provisions in Section 15 of the 1982 Act or in Section 1 of the 1988 Act. That would certainly be their effect. But what would this mean? In a nutshell, unless a union designed to turn up at the relevant proceedings, the person making the application would find himself absolutely stymied. Unless the union happened to be willing to appear before the court, it would either have to be forced to attend or the applicant would be in a hopeless position. I can think of few more effective ways to ensure that unions were once again placed completely above the law. Indeed, the situation would be even worse in that respect than it was in the 1970s. The protection afforded against ex parte proceedings would be such as to mean, in effect, that unions were protected against penalties which a court would impose for unlawful acts as long as they chose not to turn up in court.

In summary, the new clause is neither necessary nor desirable. The Government have confidence in the courts, even if that confidence appears not always to be shared by all noble Lords opposite. Accordingly, we do not see any problem with the present law that needs the kind of remedy proposed by the new clause. I know that the noble Lord intends to withdraw the amendment, but I hope that he will read carefully what I have said.

Lord Wedderburn of Charlton

I must make two points to the noble Lord. I was trying to avoid this until Thursday but he has a brief at which we shall have to look again in the context of Amendment No. 56.

First, it is really not the case that, in the light of the Express and Star Ltd. decision in the Court of Appeal—I hope that the noble Lord has the Court of Appeal decision—and without the provisions that the amendments would remove, a union would escape liability in the situation which he described. That is not the case. The Court of Appeal made the union liable. It was a contempt decision because the union had acquiesced in a manner which made it guilty of nods and winks to officials about obeying the order. That was done on common law principles. It did not need the extension in the Bill to decide that case in the way in which it was decided.

Secondly, one point on injunctions must be made. It is not a question of confidence in the courts. It is a question of confidence in procedures. Perhaps I may draw the analogy of family matters. It is not a lack of confidence in the courts that has made us reorganise our family law and send 1,000 judges of various ranks on admirable training schemes. It is a revision of the procedures. That which applies sensibly in one area of social life does not always apply sensibly somewhere else. The reality of the ex parte interlocutory injunction obtained in the absence of the trade union defendant is a scandal.

This section in the 1974 Act is supposed to have stopped it. Yet we find that in 1987 a trade union whose members were engaged in industrial action for over a fortnight was subjected to an injunction obtained by counsel from the judge at his home on a Sunday afternoon over the telephone. No doubt everyone acted as they thought proper. However, that is not a procedure which is sensible in modern industrial relations.

Moreover, if you add what happens now to what the Government will enact at the end of Clause 6, there will be far more explosive situations. There is much more to say about this matter and hope that we can traverse some of the ground in respect of injunctions with Amendment No. 56. With those remarks, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 38 and 39 not moved.]

12.15 a.m.

On Question, Whether Clause 6, as amended, shall stand part of the Bill?

Lord Wedderburn of Charlton

We; have given notice of our intention to oppose the inclusion of this clause in the Bill. It is perhaps wrong that the record should cease without a few brief closing remarks. What do we see when we look at Clause 6? We see a clause which is determined to make the trade union liable. It is determined to make it liable whether or not those who acted for it had any authority. It is determined to make it liable whether the persons concerned could possibly be known to the trade union either as a group or, as we saw, as individuals or members of other unions. It is a departure from every conceivable principle of law which applies to other bodies.

I shall quote what the Minister said at 10.39 p.m. this evening. He said: Unions are very special bodies". Indeed they are. However, West End clubs are very special bodies, but we do not make them liable for someone who is neither an agent, an employee nor anyone of whom they have never heard. Of course we do not do so. We sit down and consider what are the right principles of law to apply to such a social institution. That is a line of argument which we have developed and one which I do not feel the Minister has answered. I say that because if the only answer is that unions are very special bodies", we do not know where we are. We do not know what principles should apply.

The nature of the liability which is emerging from the discussion of the repudiation provisions, for example, is such that there has never been such a legal liability for unknown acts of unauthorised third parties since the Roman law liability for acts done by wandering tame animals. You could not get out of it. If you had one, then you were liable. It is rather like that situation. If you have someone who gets himself called an official, that is it; there is no possibility of avoidance of liability.

To all of that is added the ease of the injunction and the risk of contempt of court. When you add it all together, what is being done is a step-by-step march to clarity. The Minister has said many times that what he wants is clarity. However, that clarity means that the union will be liable. Once one reaches that point, I am afraid—as the noble Lord Lord Rochester and I have pointed out by way of examples—that union officials will be forced to retreat from the kind of situations in which they can at present be of most assistance to a good management which wants them to help to clear up the grievances which may exist in a company.

The union officials will have to retreat and management will feel that it cannot ask for their assistance. On the telephone they will say, "If you ask me to become involved, I have been told by the general secretary to be very careful about it. Our funds are going down; we are forced to write 3 million letters a year in repudiation to all our members at risk; and we get all these letters from people from Omsk to Vladivostok of whom we have never heard who have commercial contracts". The situation is quite absurd. If you want positive, progressive industrial relations, you do not start from that point. It is rather like not starting from York if you want to get where you are going.

Clause 6 is the worst clause of the Bill in many ways. It is the hinge of the legislation. The vicarious liability principles of any part of the civil law are those which really make the rest of the legislation stick. Therefore, although we shall not take the further step that we would have liked to take if it had been earlier in the evening, by dividing the Committee on the clause, it would be wrong not to register our profound regret that such a clause could possibly be included in any Bill concerned with employment and industrial relations.

Lord Rochester

I too must briefly protest. Far from doing anything to improve this country's industrial relations Clause 6 may, alas, have the reverse effect from that intended by the Government in that it may provoke employees to take more rather than less industrial action. I am not sure that I can agree with the noble Lord, Lord Wedderburn, that Clause 6 is the worst clause in the Bill. I believe that that distinction may apply to Clause 8. However, I must join with the noble Lord in saying that it is a bad clause.

Lord Strathclyde

It is right that a union should be responsible when any of its officials call, or threaten to call, industrial action which will interfere with contracts. The time is right to amend the provisions of Section 15 of the 1982 Act which are relevant to union liability for such acts. It is spurious to argue that a union's liability for such acts should not be subject to statutory prohibitions. First, the basic immunity for such acts is itself a statutory creation. Secondly, unions are bodies which the law has long recognised as appropriate for special treatment, and there is no valid comparison with West End clubs of any kind. Thirdly, there is no valid analogy with other bodies or associations as their purposes are different from those of trade unions.

Unofficial action is a problem which cannot be ignored. Noble Lords opposite wish to ignore it. The clause is designed to make unions properly responsible for the acts of their officials and that is why it is appropriate and necessary. I commend the clause to the Committee.

Clause 6, as amended, agreed to.

Viscount Ullswater

I beg to move that the House do now resume.

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

House resumed.

House adjourned at twenty-two minutes past midnight.