§ 11.35 a.m.
§ The Parliamentary Under-Secretary of State, Department of Employment (Lord Strathclyde)
My Lords, I beg to move that the Bill be now read a second time.
This Bill is brought forward for your Lordships' consideration in furtherance of the Government's highly successful step-by-step reform of industrial relations and trade union law. It is no coincidence that our reform of this law has been accompanied by a remarkable transformation from the industrial relations chaos bequeathed to us by the Labour Government in 1979.
The Employment Acts of 1980, 1982 and 1988 and the Trade Union Act of 1984 have redressed the imbalance of power that existed between trade unions and employers in the 1970s, and protected union members against abuses of power by their leaders. But the Government have always made clear that the process of review and reform must continue, and that we stand ready to take whatever steps may be necessary to deal with any newly identified problems or abuses.
It was against this background that we published two Green Papers in 1989: Removing Barriers to Employment, and Unofficial Action and the Law. Those Green Papers proposed measures to deal with the remaining abuses of the closed shop, secondary industrial action and unofficial action. Following consultations which showed solid support for action on these matters, we brought forward the present Bill which carries the process of step-by-step reform an important stage further forward.
The first three clauses of the Bill deal with the pre-entry closed shop. In making it unlawful to refuse anyone employment on the grounds that he or she is not a union member, these clauses remove the last vestiges of statutory protection for the closed shop. The Government have always made clear their firm belief that in a civilised society no one should be denied employment simply because he does not hold a union card. This Bill represents an important landmark for human rights in this country by ensuring that such uncivilised practices will in future be unenforceable.
By the same token, and as a natural extension of the Government's policy expressed in existing legislation on unfair dismissal from employment, the Bill will also protect union members from being refused employment simply because they are union members. It is thus entirely even-handed in its treatment of union members and non-members and, as such, we have every right to expect that the relevant clauses of the Bill will be warmly welcomed on all sides of this House.
The Green Paper, Removing Barriers to Employment, presented important new evidence of the continuing extent of the pre-entry closed shop. British trade unions, almost alone in Europe, continue to abuse individual employees' rights through their enforcement of this nefarious practice. The Labour Government's 1976 closed shop legislation was condemned by the European Court 538 of Human Rights in 1980. Ever since then the Opposition have known that there could be no return to that oppressive legislation. But they made no public recognition of this until December of last year when, following publication of the European Commission's proposals for a social charter, which included a clear right both to join and not to join a trade union, the Opposition in another place gave us to understand that they had now executed a remarkable volte-face on the issue of the closed shop.
If that is truly so—and the many loud voices of dissent from the Opposition's Back Benches in that place, and from trade unions, certainly give no grounds for confidence that it is—I look to the Opposition spokesmen in this House to make that abundantly clear. And will they further make clear whether they now believe that strikes to enforce a closed shop should remain unlawful and that union-labour-only clauses in contracts should remain unlawful? Will they join me in urging the trade unions to take immediate steps to dismantle the closed shops that still enforce union membership on more than 2 million people in this country? There is no need to wait until the Bill is passed. They can act now to end this blatant denial of human rights.
I turn now to Clause 4, which deals with secondary industrial action. That is action by workers who have no quarrel with their own employer. The 1980 Employment Act limited immunity for organising such action so that only employees of the customer or supplier of the company in dispute, or of an associated employer to whom disputed work had been transferred, could be lawfully induced to take such action. This contributed to a marked reduction in secondary action but events have shown that nevertheless it left scope for some extremely damaging forms of industrial disruption.
I refer of course to the irresponsible threats made by the TGWU in 1988 to black a new plant which Ford USA had proposed to construct at Dundee. The company had reached a single union agreement with the AEU over terms of employment for the new plant. Ford USA decided, as it was fully entitled to do, that it did not want to recognise or bargain with the TGWU at its proposed new plant. The TGWU responded by threatening industrial action against other Ford operations in the UK and, as a direct result of this threat, Ford USA decided to take its £40 million investment and 1,000 jobs to Spain instead.
There was no justification for the TGWU's irresponsible threats of secondary action over Dundee and not even the Opposition have attempted to provide one. But they have nonetheless opposed the provisions of Clause 4 of this Bill and, indeed, have now come forward with proposals for making secondary action lawful once again. Indeed, the terms of their proposal would quite specifically protect secondary action of the kind threatened over Dundee.
Let no one be in any doubt about the seriousness of what the Opposition are now proposing. While the Government want to protect jobs and investment the Opposition are apparently aiming to achieve exactly the opposite by, once again, licensing the flying picket and widespread secondary action.
539 The Government firmly believe that the time has now come to remove immunity for organising any industrial action by any workers who have no dispute with their own employer. Clause 4 removes immunity for any such secondary action except in the course of peaceful picketing at the picket's own place of work as the present law allows.
The third major area of abuse which the Bill addresses in Clauses 6, 7 and 8 is unofficial industrial action; that is industrial action by union members which is not authorised by their union. As the Green Paper Unofficial Action and the Law pointed out, unofficial action costs jobs and undermines our international competitiveness. Unofficial strikes tend to be sudden, unpredictable and disruptive. This makes them particularly damaging to business. They can make it difficult or impossible for firms to meet deadlines, to fulfil their obligations to customers and to manage their businesses effectively. This applies not only to the employer directly affected but also to his customers and suppliers. Unofficial strikes can have a serious effect on the business of many firms (and the general public) which have no involvement with the particular issue in dispute.
Well over ½ million working days were lost through unofficial action in 1987 and almost 1.5 million were lost in 1988. A broad categorisation of the stoppages covered by the employment department's industrial disputes statistics shows that three-quarters of those which could be classified were unofficial. In addition to those recorded by the department there are numerous small and unofficial strikes not included in available statistics.
Furthermore, the problem has continued to be evident ever since the Green Paper proposals were made. For example, at the end of last year the motor industry was seriously hit by unofficial action at Ford plants. We have since seen other instances of such action affecting rail services, the Post Office and maintenance engineers at Heathrow.
No one doubts the seriousness of the problem of unofficial strikes. But as the law stands, trade unions have no statutory obligation to do anything to bring unofficial strikes to an end. Indeed, unions have immunity for action called by their own shop stewards even if there has been no ballot. In the Government's view that is a wholly unsatisfactory state of affairs and this Bill tackles it directly.
Clause 6 will change the present law on union liability so as to make unions properly responsible for any calls for industrial action by any of their officials, including shop stewards. If a union is to avoid such liability, it will have to make its repudiation of any such call absolutely clear and let its members and others with a legitimate interest know that it has done so. It will no longer be enough for union leaders to turn a blind eye to calls by their shop stewards for unballoted unofficial action or engage in nods and winks when such action puts extra pressure on employers during negotiations.
The Government believe that union members are entitled to vote in a secret ballot before being called to take industrial action and to know whether their 540 shop steward's call to take industrial action is supported by their union. The provisions of Clause 7 of the Bill, therefore, complement those of Clause 6 and will require a union to specify on industrial action ballot voting papers who it wishes to have the authority to call the action to which the ballot relates.
This will protect both union members and employers against the kind of irresponsible behaviour which we saw at Ford's last year, when certain shop stewards called prematurely and unofficially for industrial action following an official ballot which had been organised by their union.
Clause 8 provides for further measures which will deter irresponsible industrial action. In particular, it addresses the anomaly in existing law whereby an employer faced with such action will risk claims for unfair dismissal if he dismisses selectively any of those taking the action. The present law means that an employer must dismiss all those taking the action or none of them. Clause 8 removes that anomaly.
The Bill also deals with other matters which, while not perhaps as significant as those I have described, are nonetheless important and worthwhile measures. They relate to the conduct of trade union ballots, the powers of the Commissioner for the Rights of Trade Union Members, the revision or revocation of certain statutory codes of practice, the merger of the redundancy and national insurance funds and the provision of work experience for school children.
This is the sixth major Bill to reform industrial relations that the Government have introduced since 1979. Every one of them has been opposed by the Labour Party but each one in turn has become an accepted part of the framework of industrial relations in this country. Indeed, opinion polls have consistently shown that our legislation has the support not only of the overwhelming majority of British people but also of most trade unionists. Yet the Opposition, immovable from their 1960's timewarp, have consistently opposed each and every measure that we have brought forward. They have recently published their own yet again revised proposals on industrial relations legislation. However, despite continuing large areas of imprecision and omission, even these latest ineffectual proposals have been met by a chorus of disapproval and dissension from many of their own supporters.
The Government's position, in stark contrast, is clear for all to see and our record speaks for itself. We believe that the law should protect workers, employers and the community from abuses of trade union power. This Bill, by extending personal liberty against the closed shop and safeguarding jobs and prosperity against the threat of irresponsible industrial action, will assist those objectives. I commend the Bill to the House.
Moved, That the Bill be now read a second time.—(Lord Strathclyde.)
§ 11.48 a.m.
§ Lord Wedderburn of Charlton
My Lords, I thank the Minister for taking the House through the Bill. He has acquitted himself of what is now the annual 541 task of presenting an Employment Bill which has little relevance to the employment needs of the nation. It contains nothing on training, industrial accidents or of course on industrial relations procedures. Noble Lords sitting with the Government prefer to debate industrial relations polices next Wednesday. They are right in doing so because the Bill contains nothing to promote better industrial relations policies.
First, the Bill tries to create work for the idle hands of institutions, such as the commissioner, CROTUM set up to calm the Government's fantasies about the oppression of union members. In Committee in another place it was revealed that during its first 12 months the CROTUM received 30 requests for assistance of which 12 fell within its remit. We know from its first report that of the first 10 requests only one let to a writ. That is one writ, 12 cases and all the resources of a statutory commission dealing with the problems of 10,238,000 trade union members.
That is the kind of world that government policy inhabits. Indeed, the Bill makes the world worse because it increases the prohibition upon workers who are dismissed even to go to a tribunal to challenge the arbitrariness of the dismissal. This Bill is more unfair and more extreme. It is widely recognised to be way over the top not only among trade unionists but also among management, as the recent statement by the British Institute of Management made clear, even on the Government's premises.
Since this Bill deals with freedom to strike, perhaps I may make two preliminary points. First, we see freedom to take industrial action as a civil liberty. The renowned American trade union leader, Samuel Gompers, said in 1908:It is our aim to avoid strikes, but I trust the day will never come when the workers of our country will have so far lost their ‥ in independence as to surrender their right to strike".Secondly, when the Government speak about days lost, they should be rather more specific. Of course the legal factors have a considerable effect. And yet if one looks at the comparative figures of the five years before 1980 when their first Bill was passed and the five years before 1987 which are the latest comparative figures, one finds that the working days lost in disputes in Britain fell by 63 per cent., in France by 82 per cent., in Italy by 71 per cent., in Sweden by 86 per cent. and in Ireland by 76 per cent. We do not say that the Government's laws have had no effect but those other countries have not changed the structure of their laws. Therefore, they are perhaps pursuing policies in other ways which are rather superior to those of this Government. That would be a preliminary conclusion from such data.
We say too that the Bill must be judged on the standards set out in the international conventions of the ILO, the Council of Europe's social charter and the Community's social charter, which is linked to both of those sets of international instruments. When the Minister speaks of our being consistent in our opposition, perhaps he should reflect that that may have something to do with the consistency of principle with regard to the rights set out in such documents.
542 He says too that this is a landmark in the law of human rights. It is. It is the most flagrant breach of the minimum standards of human rights at international level for two reasons: first, because of the increased powers for an employer arbitrarily to dismiss employees exercising a liberty of industrial action which is integrally part of the freedom of association; and secondly, by the ban on all forms of sympathetic industrial action without exception.
The new power of dismissal, which is lightly justified by government statements here and in another place, gives an employer a power to victimise by selective dismissal workers who are union members without any limit and without any power for the worker to go to the tribunal. It is offering to macho employers Rambo powers. The British Institute of Management is quite right in suggesting that many managers will be happy not to seek recourse to those proposals because the industrial action which we are considering may not even be a breach of the worker's contract of employment. Any concerted action is covered, even if it is not a breach of the contract.
Therefore, the Government have shown some desperation in finding justification for this wholly imbalanced proposal. In the Employment Gazette in January in one of their rare ventures into comparative labour law they said:The Government believes that employers in this country should have the same freedom to respond to unofficial action as employers in West Germany".The employers in the Federal Republic have no such powers, even in the face of an unlawful unofficial strike. The dismissal of a striking employee must be notified to the works council, which can even prevent it on certain occasions. Secondly, the worker is able to challenge his dismissal in the labour court where the employer has to prove grounds for dismissal even in such a case. He is not shut out, as the British worker now is if he does not satisfy all the conditions of this Bill, from even going to the door of the tribunal if he is willing to pay the £150 which the Government imposed last year as a charge for workers to go to a tribunal.
There is no evidence of any need for this measure. Indeed, the record is very odd. On 23rd February 1989 the Minister, the noble Lord, Lord Trefgarne, speaking for the Government assured your Lordships:Unofficial action is not a significant problem at the moment".—[Official Report, 23/2/89; col. 844.]Not a word of the problem appeared in the March Green Paper of that year, but by October, when it had been decided that there was need of another annual step in trade union law overruling the Secretary of State's first instincts, the tune had changed. The second Green Paper of October said that unofficial action is a major problem and that in 1987 three-quarters of stoppages which could be classified were unofficial.
That too is odd because three months earlier the official statistics in the Employment Gazette of July 1989 had stated, as it regularly does now, that because of the practical difficulty in determining the category, a distinction between official and 543 unofficial disputes was no longer made in the statistics after 1981.
Government statements are based upon calculations which are wholly uncertain in that respect or, at least, they have not published the sources for their calculations. What is more, both the Secretary of State in another place and the second Green Paper said that that was a phenomenon almost unique to this country. The truth is that spontaneous walkouts—unoffical or unpredictable protests—take place in every country, in every office and in every factory. The legal consequences are diverse and complex. Most of the spontaneous action is short-lived. Much does not appear in any statistics. The sensible response was that given by the spokesman for the CBI in the Financial Times of 13th October 1989 when he suggested that such stoppages are best dealt with by effective management control and the following of grievance procedures. The important thing is to settle the grievance and solve the dispute.
When we come to the union's function in that, in which union officials play a major part, as any manager knows—and no wonder that the BIM and its constituents are worried by this Bill—if it endorses a stoppage before a ballot to try to save its members from arbitrary dismissal, the employer can obtain an injunction against the union. The employer exchanges his right to victimise the workers ultimately for a right to sue the union. If the stoppage is not endorsed, the employer can dismiss anyone he likes.
Let us suppose that the union feels that its members have a case. Should its officials go in to help, as they do, to solve the dispute? If they do, they run the risk under other clauses of the Bill of being liable not merely for the official but also for those with whom the official consorts in a group, even if those persons are not members of the union.
Therefore, this Bill can do nothing but make more difficult the job of union officials and managers on the ground-floor level to solve disputes. It is a flagrant derogation from international standards. I quote the words of the ILO Freedom of Association Committee and I put a question to the Minister. Does he not agree that Convention 87 of 1948 on freedom of association is acceptably construed by the Freedom of Association Committee such that a refusal to re-employ strikers or the dismissal of strikers constitutes a violation of freedom of association? That is the committee's authoritative view.
The ILO Committee of Experts on 28th April 1989 concluded in paragraph (f) that even as it stands today our law is a breach of the right to freedom of association because a striker has no:right to present a complaint against dismissal to a court or other authority independent of the parties".That point has been put to the Government before. They have rightly replied that for procedural reasons that case went no further. However, that does not answer the analysis of the Committee of Experts, a group of internationally respected jurists.
544 The Government have said also that the legislation of all parties has contributed to this position in our labour law in Britain. That is correct. However, I am proud to say that my party is not tied to the past in a manner which prevents it from being pledged to bring our law on the right to strike up to minimum international standards observed by all major European systems of law, which includes all systems within the Community.
The Bill's breach of international standards is redoubled by the discrimination between union member and non-member. So far that has received little attention in this country but it will receive great international attention. The non-unionist who consorts only with non-unionists is given industrial rights which are far more extensive than those of union members. Merely to state that proposition is to state an anomaly which is a further clear breach of the standards of all the conventions concerned.
The Bill is equally a breach of international standards in banning all sympathy action. The Committee of Experts of the ILO in the same report said of British legislation of 1980–88—even before the Bill—that,the overall effect of legislative change in this area since 1980 is to withdraw protection from strikes and other forms of industrial action in circumstances where such action ought to be permissible … by Articles 3, 8 and 10 of the Convention".The committee specifically asked the Government to remove those impediments to the honouring of their obligations of the convention which they have ratified. The Government's response was to repeal even the tiny and ineffective gateways to legality for sympathy action in the 1980 Act.
Why do the Government disagree with the Secretary of State of the time—now the noble Lord, Lord Prior? He thought that that arrangement was balanced and reasonable, although as events in the courts later proved and as we said at the time, we thought he greatly overrated their effectiveness. But he thought then that a simple repeal of immunities for all secondary action would not be right. He set out his reasons at great length but the Government have never confronted those.
One of the reasons is that the Government do not understand secondary or sympathetic action. The character of sympathetic action is not determined, as the Minister seemed to think, by workers. It is defined by the employer or the employers. That is why the ILO Committee of Experts and the Freedom of Association Committee made clear that if workers have a direct interest in a dispute the boundaries of the employment unit do not define their right to strike under the convention. We agree with that.
If 1,000 workers are employed by a company and take industrial action, that is primary action. If the employer then splits the business into two companies and only the first company can answer a demand on the same matter, but it affects all 1,000 workers, the law now says that the group in the second company are taking secondary action. However, as far as the workers are concerned it is still the same matter.
The change was brought about largely by alteration of employers' employment units. We saw how that worked out in the Dimbleby case of 1984 and the Wapping dispute. It is true that every legal system 545 puts some limits on sympathetic industrial action. That is a truism, but no other European code of labour law bans sympathy action altogether. There is a variety of tests. There is what may be called The Ally test, as in German law, where the question is whether the second employer is in an economic sense part of the first employer's undertaking or, as the Federal Labour Court put it, has departed from his neutrality in the industrial conflict.
There is then the rather different test of interest, which is used in Italy, France, Belgium, Greece, Spain and the Netherlands. There are different forms of deciding the legality according to the nature of the interest which the second group of workers have in the first. I am afraid that the Minister, in suggesting that such a test was ridiculous when we put one forward in our programme, was only showing once again that Her Majesty's Government have no interest regarding what happens in other member state systems of law.
Most of those countries have economies which are eminently competitive with ours; some lose more days from strikes, though most lose fewer. But not one of them bans sympathetic action altogether. What do the Government think is wrong with British employers or managers that they need protecting in this way? It is hardly a vote of confidence in either management or indeed the workforce. That is the lesson which is derived; confidence is hardly what either side of industry gets from the British employment laws as they have developed.
The case which the Government use to justify their action is that of the Ford Motor Company. It is the only one they put forward. Only the Ford motor problem can give them justification for this part of the Bill, and I leave that topic by saying that the Ford Motor Company statement was much more detailed and complex than the Minister suggested. In fact the union position was not the only major factor in it. Secondly, it did not involve any act or threat of secondary action at all. It was not a secondary action case. They are therefore left with nothing.
The Government's characteristic Nelsonian perception of even-handedness permeates the Bill at every point. When they come to the Community social charter—I congratulate the Minister for mentioning that today; we shall no doubt one day bring him into accord with it—they say applicants for jobs should not be rejected by employers by reason of membership or non-membership of a union However, where is the corollary principle that blacklists of workers should be banned? Or the parallel principle from the package of rights in the social charter that workers should be given the right to be represented by their union or—most important of all and central to the social charter's package of rights—that they should enjoy the right of collective bargaining to determine their terms and conditions of employment? They are not there at all.
We on these Benches reaffirm our support for 100 per cent. trade unionism: for legislation where there is a right to bargain and a right of representation where the package is in place so that the older problems of union security fade into insignificance. It is no answer to a programme which takes that 546 posture for the Minister to invite people to do everything that he wants without all the other rights which are a necessary part of a civilised system of employment law.
We must consider the Bill's effect on ballots. The Government added a further clause and, more important—which this House must consider—new parts to the schedule on ballots; after four months they decided that it was necessary to insert those new provisions. One of them prevents a union from calling upon its members to support industrial action before they vote in the ballot. The union must not call upon them. If that is not an invitation to a court to find that in many situations a recommendation to vote yes is illegal, then I do not know what is. The point has been put to the Government; they have never answered it. We shall press it in Committee.
The Government have not even seen fit to adopt the elementary justice of the Bill introduced and passed through all its stages in this House by the noble Lord, Lord Campbell of Alloway, to allow the four-week period in which a ballot is valid to be extended through the period of litigation and its appeals if an employer decides to launch an action in the courts. One should have thought that there was elementary justice in that, but the Government do not think so.
The clauses on which a union is to be made vicariously liable and on which I can only make one point, are perhaps the least meritorious in the Bill. If one of your Lordships is made a defendant in an action for an act done by some other person, you are vicariously liable for that other person if he or she is an employee acting within the course of employment or an agent acting within the course of the agency, express, implied or ostensible. Of course that produces difficult legal problems.
That is what everyone else in the realm is judged by, but not trade unions—not since 1982. They came under the Industrial Relations Act 1971, but not under this Government. Now the Bill tightens the screw. The unions are now to be made liable for acts done by an official—even a lay official—in a branch, whether authorised or not, no matter how wrongful; more than that, even by a member of a group which the union official happens to have attended where that group is co-ordinating industrial action, even if that member of the group is not a member of the union. That is Alice in Wonderland trade union law and we feel sure that it cannot last long.
We say that the Government's aim is to attempt to extend what the noble Lord, Lord Donaldson of Lymington, recently called judicially:a minefield from which it is all too easy to stray from the paths of safety and legality".The Bill is the worst of the annual steps backwards in employment law. It breaks international standards; it offends elementary fairness; it answers no proven need; its objectives are to continue to harrass workers' collective organisations in a labour market which the Government ideologically and sincerely, but desperately want to individualise. We shall press in Committee to correct its inequities, but shortly after that we shall sweep them away together with the Administration which begat them.
§ 12.10 p.m.
§ Lord Rochester
My Lords, I thank the noble Lord, Lord Strathclyde, for the clear way in which he introduced the Bill. On these Benches we welcome the provision which makes it unlawful to deny employment to people because they are trade union members or because they are not, but we regret that the Bill, in our view, fails to do anything positive to improve industrial relations and we fear that the proposals to amend the law relating particularly to unofficial industrial action will result in further legal disputation rather than contribute to the peaceful resolution of disputes.
I deal with the main clauses of the Bill in turn. My party's opposition to the pre-entry closed shop is of long standing and we welcome the Government's belated decision to bring it to an end. In the debate in this House last February on the social charter I was intrigued, but not altogether convinced, by the exposition of the noble Lord, Lord McCarthy, who I am glad to see is in his place. Perhaps I should call it a rationalisation of how the Labour Party has at last reached the same conclusion. I am bound to say that I found little of what the noble Lord, Lord Wedderburn, had to say on the subject any more convincing, but that is just an aside.
Clause 1 provides that it is equally unlawful for someone to be denied employment because he is a trade union member or because he is not. The Government have come to that view rather late in the day, but it is nonetheless welcome so far as it goes. I put it like that because in Committee we shall need to be satisfied that a person should be debarred from employment no more because he has engaged in responsible trade union activities than because he is a union member. The issue is all the more important because of the way in which information concerning such activities is conveyed to employers by bodies like the Economic League.
Looking back I am glad that long ago in the company for which I used to work I was able to help in keeping that particular organisation in its proper place; that is, outside the factory gates. The question arises of whether the league's manually compiled files should be subject to the obligations of accuracy already imposed on computer records under the Data Protection Act. Many people suspect that the league is deliberately using record cards to avoid the provisions of that legislation. We shall have more to say on that matter in Committee.
There is another aspect that was touched upon at the Report stage of the Bill in another place. It concerns the circumstances in which an employer might offer employment but then withdraw the offer without a satisfactory explanation. I shall be grateful if the noble Lord, Lord Strathclyde, when he replies to the debate will confirm my understanding that the Government plan to introduce an amendment to put that right.
Clause 4 has the effect of making secondary action altogether illegal. This raises questions that are both complex and controversial. The Government's position, as I understand it, is that, whereas in 1980 the noble Lord, Lord Prior (as he has now become), as the noble Lord, Lord Wedderburn, reminded us, 548 considered that as a matter of principle a group of employees directly affected by a dispute should be entitled to take industrial action in support of others, there have since been abuses of the situation. In that connection the Minister cited the Ford America dispute in Dundee where the threat of secondary action prevented the creation of, I believe, about 1,000 jobs. The question we must resolve in Committee is whether the mischief that has occurred since 1980 has been sufficient to justify this new government measure.
As with so much recent industrial relations legislation, we are concerned lest in this instance too the law should be less than even-handed as between employers and employees. In particular, we wonder—I put it no higher than that at this stage—whether the Government's proposal may encourage an unscrupulous employer artificially to divide his company into separately-owned organisations simply to defeat what would then become secondary action.
I turn now to Clauses 6 and 8 which aim to curb unofficial industrial action and are at the heart of the Bill. Opposition parties are not alone in criticising these clauses. For example, in their response to the Green Paper Unofficial Action and the Law the Institute of Personnel Management said:What is required is the elimination of the causes of unofficial disputes and the development of voluntary procedures for the rapid resolution of any that occur. Further legislation could create more difficulties for management by prolonging the procedures for resolving disputes. This would tend to incite employees to take unofficial action rather than the reverse".Clause 6 provides that in order to avoid liability for the acts of its officials, including shop stewards, a union must almost immediately repudiate them by written notification to every union member who it has reason to believe is taking part or might otherwise take part in the industrial action. On this point the British Institute of Management states in its briefing memorandum on the Bill:Since the 1988 employment Act which inhibited a union's right to discipline its members, a simple repudiation of the action may do little to change the attitudes of those organising unofficial action. Again, managers will be faced with a situation that union officials are unable to deliver what may be agreed in good faith because their room for manoeuvre has been limited".Leaving aside the considerable administrative problems that the need for repudiation may produce, we learn from the new subsection (5A) to the 1982 Act that the notice given to members must contain this precise statement:Your union has repudiated any call for industrial action to which this notice relates and will give no support to such action. If you are dismissed while taking unofficial industrial action, you will have no right to complain of unfair dismissal".I was glad to see that the proposed wording of that statement proved to be too blunt for at least one government supporter—the honourable Member for Bedfordshire, South-West, Mr. David Madel, whom I happen to know and respect. He went so far as to say at the Report stage of the Bill in another place:That is not the language of industrial relations in the 1990s. It is too far removed from reality and too much like first world war generals barking orders to those on the ground".—[Official Report, Commons, 17/5/90; col. 1061.]The Minister of State for employment finally saw the point and said,
549we 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"—[Col. 1071.]We shall seek to test those words in Committee.
There is then the vexed question of whether a collective refusal to work on grounds of danger to health or safety does or does not constitute unofficial industrial action. In another place argument on that point ended in deadlock, each side contending that the law was clear on the matter. But legal opinion, as is often the case, apparently reached entirely different conclusions. As far as I know, at no point did the Minister give chapter and verse for the Government's view that such a refusal does not amount to industrial action.
In those circumstances, one would have thought that I here was good reason for including in the Bill some provision for what might be called avoidance of doubt on the question. However, as the Bill came to this House, there is none. The matter is all the more important because of its linkage with Clause 8, which is the clause that alters the present restrictions on selective dismissal or re-engagement so that an individual employee dismissed while participating in unofficial industrial action will in future be unable to claim unfair dismissal before an industrial tribunal.
That proposal has been criticised strongly by the IPM, though that institute is a management organisation, and by the Industrial Society, which is representative of both management and trade unions. Both of them fear that an unscrupulous employer—and there are still some of those about—could operate the proposal to his advantage by deliberately provoking unofficial action, perhaps in a redundancy situation, and then singling out for dismissal some individual without having to justify his action at a tribunal.
Again, I was glad to note that at Committee stage in another place a Conservative, the honourable Member for Elmet, Mr. Spencer Batiste, who clearly has considerable experience of these matters, put the point admirably when he said in Standing Committee D at col. 379:If employees are to be singled out I do not believe that an employer should arbitrarily be able to pick them out without having to justify or defend his actions".That seems to us to be an elementary principle of justice which we shall certainly wish to incorporate in the Bill.
The last clause I wish to deal with is Clause 7, which is the clause that stipulates that if a union is to retain immunity under the 1974 Act, voting papers for ballots on industrial action must specify precisely who is authorised to call for the action. It further prescribes:there must have been no call by the trade union to take part … in industrial action to which the ballot relates … before the date of the ballot".Thus, the clause appears to preclude a union from lawfully recommending that its members should engage in industrial action. I content myself with saying that that represents a major departure from past practice which we shall wish to question closely.
550 Clause 7 also applies to the Bill, as I read it, a period of four weeks within which industrial action must take place after a ballot if the action is to be lawful. That is the provision which is deplored by noble Lords in all parts of the House and which the noble Lord, Lord Campbell of Alloway—I am glad to see him in his place—sought to remove in his Trade Union Act 1984 (Amendment) Bill passed by your Lordships last year.
I very much hope that the noble Lord—better still the Government—will take the opportunity presented by this Bill to move amendments to bring the law into line with what the House then decided. There has been no prior consultation concerning this new clause. There was no mention of it or of its supposed merits in the Government's Green Paper. It was introduced only at Report stage in another place. Therefore, it was not possible to discuss its contents in Committee there. We shall certainly wish to do so here. We shall need to be convinced that the new provisions will serve a purpose good enough to outweigh the additional logistical and other problems which they may bring in their train.
The basic question that we should be asking ourselves about this clause and others in the Bill is whether they are likely to improve relations between management and employees rather than give rise to still more legal disputation. As the BIM put it:Placing excessive further legislation in the area of industrial relations immediately introduces an element of confrontation between employer and union, destabilising the relationship by providing one side with a weapon. Such legislation could provoke unnecessary confrontation by reducing the dispute between employer and union into a battle through the courts".I share that view.
I shall say no more about the Bill at this stage. In the ordinary way I might have ended by seeking to justify the statement that I made at the beginning and by suggesting a few positive ways in which industrial relations in this country might be improved. But, like the noble Lord, Lord Wedderburn, I have observed that next Wednesday we are to have a general debate on the Government's industrial relations policies. Therefore, it may be better if I wait until then before doing so.
§ 12.26 p.m.
§ Lord Mellish
My Lords, all noble Lords present today will be delighted to hear that I do not propose to speak for very long. First, with modesty, I wish to commend the noble Lord who opened the debate for those of us who sit on this side of the House. His case was superb. This Bill is supposed to be about industrial relations. It is supposed to improve the situation and produce a panacea for the employers and the unions so that they get together in a working partnership in order to make life better for the community. That is what the Minister really said.
However, the Bill does exactly the opposite. It creates a legal forum, as the noble Lord who speaks for the Liberals said. (I think they are called Liberals though I am never sure.) He quite rightly said that the Bill is a jungle of legal argument and disputation. I commend the noble Lord, Lord Wedderburn, for what was a very good exposition of the case from this side of the House.
551 I say with all modesty that I understand why the closed shop is unpopular. Perhaps I may also put the other side of the case and suggest why some employers have said that it is a necessary part of their structure. Some noble Lords will know that I was associated with the dock industry for about 20 or 30 years. The employers demanded and prayed that the employees would be members of a union because when they met trade union officials they then knew that they were speaking on behalf of the people.
I have never had anything but contempt for people who accept better salaries, wages and conditions and yet refuse to join the trade union that helps to get them those improvements. I have nothing but contempt for such people. It is a myth to put them up as freedom fighters and lovers of democracy. They are prostitutes.
§ Lord Mellish
My Lords, yes, they are. I say that frankly. Anyone who is first in the queue to put out his hand to take an increase in salary or an improvement in conditions but yet says "I shall have nothing whatever to do with the so-called trade unions who helped me get it", is a prostitute. That opinion may not be liked but it is true.
The argument about the closed shop is tainted. On paper it appears that the closed shop is very unfair. I ask the Minister this direct question. Will he be good enough to state the employers' organizations which have objected to the closed shop? If he has a case he should stand up and say so. He knows the attitude of the trade unions towards the closed shop. I ask him what the employers say. Have they objected to the closed shop?
I was associated with the engineering industry and the dock industry. In both instances the employers prayed that there would be universal membership of trade unions so that they could negotiate and talk in the way that they do.
I want to deal now with unofficial action. Honestly, and with great respect to the Minister, he should know that he is on a par for trouble here. To allow an employer the right to say that Brown, Smith and Jones are troublemakers and are therefore sacked is not a path to industrial relations harmony and is stark raving mad. Does he not realise that he will make them martyrs? Does he not understand that he will make these people worthy of a position that I frankly do not believe they should possess?
I was a trade union official at the ripe old age of 21. I know something about it. One of the biggest problems I had to face was the active trade unionist who was not politically motivated. That was the way I saw it. I do not deny that there are some whose only purpose inside the trade union is to get their way politically. I had no time for that type. I was only concerned with the person who was actively involved in trying to get better wages and conditions for those who worked in the industry.
One of the biggest problems inside the trade union movement today is apathy. I was a branch secretary, 552 believe it or not, at the ripe old age of 16. I had a branch membership of more than 2,000. I was lucky on a Friday night to get an attendance of more than seven or eight. Why? It was because the vast majority preferred to leave it to those who were running the branch. They said, "We will pay our subscriptions. We don't have to attend meetings. This is a cumbersome burden on us and we don't want to know". They left it entirely alone and just a few of us ran it. Am I to be described as the type who, being an activist, wanted to bring employers down, change the economic system and all that rubbish? Of course not. The truth is that I was only concerned—I really was only concerned—with improving wages and conditions.
Clause 4 deals with secondary action. If I may say so, unless Government are prepared to admit that they are taking away the right to strike, why should not a person be able to go into another industry affected by his industry and say, "Look, we are on strike", and picket it? It is absolutely right so to do. To describe those people as breakers of the peace is a bit much. The vast majority of disputes inside the dock industry were unofficial. They did not come about because the unions themselves mishandled the situation in any way. A cargo would arrive in respect of which it was set down in the schedule that so much per tonne was available. But when the cargo was examined it was found to be in a terrible condition and nothing like what was laid down in the schedule.
The men would say, "Look, guv'nor, we want more money". The employers would say, "Oh no, you don't get any more because that is what is laid down in the schedule". There was a strike that was unofficial. Were the union officials to say that that was wrong, that it should not have been allowed and that those people were taking the wrong kind of action? The only way to resolve that argument was to force the employers to realise that the price being asked for that cargo was not right. There would be a strike. Others would not go to work. If you stopped work on a ship it meant there was no work on the quay and no work in the warehouse, so two or three hundred men would be affected straight away. They would be on strike as well, I suppose. Until the employers devise a system to resolve such problems there will be unofficial disputes again and again.
The Government say that there should be a ballot in such cases. Have you ever heard anything so stupid in your life? Are you stark raving mad? Do you not understand what industry is about? You cannot have a ballot when you are dealing with matters that have to be handled straight away. You cannot have someone saying, "Let's all sit down first and let's all put crosses", and so on. Employers would quite rightly say, "We want that cargo dealt with and we want it shipped straight away". You cannot wait for a ballot. I ask the Minister a further question on that point. Who is demanding a ballot? Which employers' organisations are asking for ballots?
We have heard international organisations say that the Government are taking away the right to strike. I put this on record. I hope that noble Lords on both sides of the House will recognise that I am 553 by no means an extremist. All my life I have been a moderate, understanding type. I have always recognised that profit for any individual firm is right. No firm will work without a profit. I understand that. But what is important is what you do with the profits, how you operate and what conditions you apply to those who work for you. An employer should recognise that when he is employing a number of men he is in a way employing their wives and families. He has to accept responsibility for them. I object to the employer who does not give a tuppenny damn for any of that. That is why I say that the Bill does not serve its intended purpose, which I believe is better industrial relations.
It will create more trouble. It will be a jungle of law. The TUC—and I have my complaints about the TUC—has said again and again that it objects to a number of these unnecessary restrictions. I ask the Minister to justify his Bill not on party political grounds but by listing which employers' organisations have declared that the Bill is right and proper. My bet is that he cannot do it. He will say in effect that this is the brainchild of Conservative Central Office. That is a shame because we are dealing here with a very human matter. We shall see.
§ 12.37 p.m.
§ Lord Boyd-Carpenter
My Lords, when the history of this Government comes to be written, one of the features which will stand out most prominently is the change that they have been able, as a result of a series of measures, to introduce into our industrial scene. Your Lordships will recall not many years ago the domination of our economy and of a great deal of our life by the trade unions; the major strikes and all the hustle and flurry of midnight meetings at 10 Downing Street followed by a settlement which very often was expensive and very often was not accepted—the whole confusion caused by the excesses and misuse of trade union power. That was the picture—let us remember it—not many years ago. The Government, by a series of measures—as my noble friend Lord Strathclyde said, moving step by step—have changed the situation, largely, though not wholly, by changing the law.
This is a remarkable improvement which, because it has happened slowly and step by step, perhaps on the whole our fellow countrymen have not fully appreciated. Yet when noble Lords look around they can see how much better industrial relations now are than they were then or indeed at almost any time for many years. Noble Lords will see the limited number of strikes which now take place and the whole change that has been effected. I ask your Lordships to appreciate that this has not just happened by chance or by good luck. It has happened because the Government have bravely faced up to and tackled the overweening power of unions, some of them led by people like Mr. Scargill who did not care two hoots what damage he did to the national economy or ultimately, as it turned out, to his own union. They have been right to secure the steady step-by-step improvement.
I think I understand the step-by-step approach. I am quite sure that if in 1981 or 1982 a 554 comprehensive Bill embodying all that has been included in the last five or six measures had been introduced we would probably have had industrial trouble. It would probably have been thought that this was such an obvious onslaught on the unions that it must be resisted. The step-by-step approach has worked so well as to produce the much more satisfactory situation that we have today. I hope that this is not the last of such Bills because my one criticism of it is that it does not include what I had rather hoped a Bill about now would include—a measure dealing with the difficult problem of strikes in essential public services. In other countries employees in essential public services are sometimes restricted by law from taking strike action. They are strikes which affect the public without generally bothering the employers at all.
A strike on the London Underground can do immense harm and damage to the economy, inflict appalling misery on many fellow citizens but do no harm at all to the board of London Transport. Therefore I hope that the prospect of dealing—I do not pretend that it is not a difficult question; I think that it is—effectively with strikes in essential public services has not been pushed under the carpet, and that we may have a measure next year dealing with that issue.
Having said that, I welcome the Bill. I welcome the abolition of the closed shop. It was noticeable that in a speech which did not err on the side of brevity the noble Lord, Lord Wedderburn of Charlton, made hardly any reference to that subject. He lacked therefore the courage in facing up to it which characteristically was displayed by the noble Lord, Lord Mellish. I find a little difficulty in replying to the noble Lord merely because I nearly always agree with and welcome what he says in debate in the House. This time I am afraid that I must differ strongly. He is right to say that the closed shop is sometimes acceptable and indeed agreeable to certain employers. That does not to my mind justify for one moment saying that a man may not be given employment because he is not, or because he is, a member of a particular trade union, or of any trade union. I believe that on reflection the noble Lord will feel that his reference to those people who are in employment in which there is a union but who do not join it, in which he described them as prostitutes, was grossly unfair.
There are many good reasons for not joining a union. Sometimes one may object thoroughly to a policy or the leadership of that union. I have in mind certain unions—I shall not necessarily mention them—in which any decent man would object to the leadership. It seems to me to be a basic right of the citizen to be employed or not employed, as the case may be, for reasons distinct from whether he is a member or not a member of a union. I believe that I know the answer that the noble Lord, Lord Mellish, would give. The noble Lord, Lord Wedderburn of Charlton, is perhaps more cautious. Is it really said that in this day and age a man or a woman, perfectly suited for certain employment should and can be refused that employment merely because he or she has not joined a particular union or has joined one? Is that to be justified in this day and age? Is it any 555 more justifiable than to discriminate because of race or religion or any other aspect of that person's views or opinions? I am therefore delighted that the Government have had the courage to tackle that issue and to see that the Bill marks the end of the closed shop.
I do not want to detain your Lordships at any great length. I should like to refer to one or two other provisions of the Bill. The noble Lord, Lord Wedderburn, went at great length into the question of secondary action; but I notice that he brushed aside the Ford Aberdeen case as if it were of no importance.
§ Lord Boyd-Carpenter
My Lords, I am obliged to my noble friend. One becomes confused by those agreeable Scottish cities. The Dundee case is of great importance, not merely because of the immediate loss of an enterprise which would have employed to begin with 1,000 and in due course 2,000 people. It involved big investment in this company. It involved the giving of employment in an area where it was greatly needed. What happened must have had a discouraging effect on Ford and perhaps other companies which were contemplating investment in this country. The noble Lord cannot merely brush that case aside and say that it is so unimportant that it does not need dealing with.
I do not suggest that the provision dealing with secondary action is justified solely by that case. It is justifiable wholly in principle. Action against an employer who is not one's employer merely to put pressure upon him indirectly is surely an oppressive piece of social action. It is right for the Government to tackle that issue. There have been examples of such action in recent years and the Government might well have been at fault if they had not dealt with it.
The noble Lord, Lord Wedderburn of Charlton, referred briefly to Clause 9 and the position of the Commissioner for the Rights of Trade Union Members. He scored a good laugh by pointing out that there have been only a few cases. Does he not appreciate that it may well be the commissioner's existence and of the rights so given that has made it unnecessary for people to exercise those rights? Surely it is no criticism of a police force that there is no crime in its area. Surely it is a good indication of the existence of a valuable piece of machinery that it has not been required to go into operation. Its existence has been known, and it may well be that that has had a significant effect. It certainly seems to me to be no criticism. I had in mind as the noble Lord was speaking that if there had been masses of cases he would have been equally cross and would have said what an outrageous interference it was with trade union rights and what trouble it was causing.
I find the Bill on the whole an excellent measure. It is one more step in the direction towards maintaining our good industrial relations. I wholly agree with so much of what the noble Lord, Lord Rochester, said on that subject. There is no doubting 556 the fact—the proof of the pudding is in the eating—that the change in the legal structure has been reflected by a great improvement in industrial relations. Therefore, although the noble Lord, Lord Wedderburn of Charlton, may work himself up into a characteristic passion about some of the provisions, they are provisions which follow others which have been proved, in practice, to work. I believe that these provisions will be proved, in practice, to work. I hope your Lordships will give the Bill a speedy passage.
§ 12.48 p.m.
§ Baroness Phillips
My Lords, as your Lordships would expect, I shall hardly be following my friend—if I may so describe him—the noble Lord, Lord Boyd-Carpenter. However, in relation to the closed shop I seem to recall that when we were discussing the Courts and Legal Services Bill a certain profession, of which I believe he was a member, showed clearly that it was not going to have any inroads made into the closed shop. The professions have known much more about the closed shop for generations than dockers or faceworkers. The closed shop is not in any way peculiar to certain kinds of trades.
§ Lord Boyd-Carpenter
My Lords, I do not like to interrupt the noble Baroness immediately but I believe that she is subject to a misunderstanding. The closed shop, as she calls it, in the legal profession is not based upon membership of an organisation. It is based upon people having obtained certain qualifications, which is a totally different matter.
§ Baroness Phillips
My Lords, as I understand the closed shop, that is equally true. I do not want to digress (says she, proceeding to do so) but perhaps we might talk about the theatrical profession. Why has it got a closed shop? It is simply because they do not want untrained and unqualified people coming in and down-pointing their job. That is the basis of the closed shop. It is an unfortunate title.
Like the noble Lord, Lord Mellish, I lived and worked among the dockers during the time when one person went out early in the morning and said to the men: "You are employed, you are employed and you are employed" and the rest of the men went home; I have seen men weep because they did not have work. It was obscene, and must never happen again.
I have been a long time in this House and I still rather pathetically believe that if a Bill has in its title "housing" it is intended to produce more houses or, if it is called "employment" it is something to do with producing more jobs. I had read about removing barriers to employment and so I searched in vain for some reference to something to do with training and finding jobs. The only reference that I could find to training was in the rather curious obtuse clause that we seem to get in all legislation, which refers to the period for which children may be employed for work experience. The Bill says that new words will be substituted. It refers to a child being taken: 557in his last year of compulsory schooling from the beginning of the term at his school which precedes the beginning of the school year in which, by virtue of section 9 … he would be entitled to leave school".I can see teachers having great fun trying to work that out. To me it is rather like saying there has been a noticeable falling off in the lack of apathy or referring to an upward move or a downward trend. It does not tell us anything. However, I was very heartened to read that in Clause 1 we are dealing with a rather important point: it is unlawful to refuse a person employment because he is or is not a trade union member—it seems to me that it is the only vaguely fair clause in the whole Bill—all because he will not agree to become or to cease to be, a member.
That gives me an opportunity to raise my own particular bee-in-the-bonnet. If we are talking about discrimination, what is wrong with the Government extending this to age discrimination? That would fit in very neatly. If an advertisement specifies certain things and somebody applies, in the first place they may not be discriminated against and, in the second place, they can actually take action against the employer.
As your Lordships will know, I was involved in a Bill about age discrimination and I am very intrigued to know why the Government do not realise what a vote catcher that could be. A lot of people write to me about this matter. I do not know why I should hand this to the Government on a plate, but it is worth considering; I just want to see the legislation introduced. When will the Government bring employers into line with those in the United States and most of Europe? We are all asking about this. Are we talking about a number of people? Yes, we are talking about a large number of people. To start with, we are talking about 1½ million who are "aged" because they are over 40.
We all know that to refuse to employ somebody because of age is not really the reason; it is really money. One can offer an 18 year-old far less money than one can offer a 50 year-old. It is not good enough to let the employers deal with this themselves. Certain companies are now appearing as "the goodies" because they are appealing especially to the over-60s. Of course they do not say—I read this in a particular article—that they do not pay the over-60s as much as they would pay the 50 year-olds. This is not peculiar in any way to certain trades. The answer is not to undercut—that is not the answer at all.
This Bill provides the Government with an opportunity to introduce at least one clause that I hope will have all-party support. I give them notice that I intend to promote an amendment to that effect. I would not dream of referring to the other clauses and trying to follow the brilliant exposition of my noble friend on the Front Bench, but I endorse everything that has been said.
The Prime Minister seems to like the Polish trade unionists and why she does not like the British trade unionists is just one of those strange things. I appeal to the Government, if they have a heart (which I often wonder about) to bring forward something which will benefit a very large section of the 558 community and provide employment. That will be needed, if not today then certainly tomorrow.
§ 12.55 p.m.
§ Lord McCarthy
My Lords, my noble friend Lord Wedderburn has taken us through the 15 provisions of this Bill and no doubt we shall go back to them again in Committee. I do not wish to go over any ground that he has covered. The Minister has adopted a somewhat narrower focus. So far as I could see, and I was following his speech with the aid of a copy of the speech of the Secretary of State in another place, he followed the Secretary of State quite often word for word, except that he took one-third of the time.
He seemed to focus on three areas: the closed shop, unofficial strikes and the way in which the Government's legislation has transformed the economy. The latter phrase was also used by the Secretary of State. We have debated the closed shop at some length in this House, recently during the debate on the social charter. I appear to have made my argument clear to the Minister, although I am not sure where it landed me. That was clear to the noble Lord, Lord Rochester, but not how I got there. We shall be going over this ground again in connection with the first few clauses of the Bill, and no doubt these matters may be made clearer then.
The Minister then turned to unofficial strikes, and I think we shall have to put down a Question for Written Answer on this. So far as I am aware, this is the first time that we have had a statement from the Government about working days lost by unofficial strikes. The general position has always been, "You can't do it". I only hope that when we put down a Question for Written Answer we get a better Answer which gives more information than where the Government got their figures from regarding the closed shop. The House will remember that the only way you can work that out is to assume that somehow somewhere there are half a million members of Equity who have not got on to the union books.
I have looked at the figures and I think I have got them right because the Minister quoted them. If 3.5 million working days were lost in 1987 and 3.8 million were lost in 1988, I take it that the Minister is telling us that less than 25 per cent. of working days were lost in those two years due to unnofficial strikes. It is quite a minority problem, if one is bothered about working days lost. We are glad to have that, and would like to have some of it supported.
I turn to the doctrine of transformation by law. I am bound to say that the Secretary of State gave some figures in another place about this. I may be wrong but I do not think that the Minister today gave us any figures, particularly strike figures. In that sense the was joined by the noble Lord, Lord Boyd-Carpenter, who preferred the qualitative approach.
Nevertheless, I would take exception to—and I have said this several times in your Lordships' House—the way that the Government, when they 559 list their legislative assault (and I want to be fair to them) always leave out a few Acts. We have had seven "sons of Frankenstein": 1980, 1982, 1984, 1986, 1988—it gets quicker then—1989 and 1990, all in one way or another designed to narrow individual rights and attack trade unions. Therefore I wonder why the Government talk about three or four Acts and why the noble Lord, Lord Boyd-Carpenter, hopes that we will go into double figures.
The Secretary of State in another place put forward a justification for the transformation of the British economy by laws against strikes, and I now quote from what he said in the other place on Second Reading at cols. 38 and 39 on the 29th January:There can be no doubt about the transformation which has taken place in British industrial relations in the past decade …That transformation has occurred because this Government, unlike our predecessors, have had the courage to put sensible step-by-step reforms on to the statute book".The Oxford English Dictionary states that a transformation is a metamorphosis—a total alteration in existing forms or substances. Therefore we must ask when and where the Government have put forward evidence of that transformation or metamorphosis of industrial relations. In so far as they have offered evidence, they have advanced three contentions. They assert that the law has transformed productivity and that there has been a productivity miracle. They further assert that the law has ended the problem of wage induced inflation. They have said again and again that the law has produced an improvement on the strike record. I am afraid I shall not be able to attend the House next Wednesday but I understand that a debate will take place to explain that assertion.
There are five things to be said about productivity. The first thing to be said is that the Government only claim to have transformed manufacturing productivity. They do not claim to have achieved a general improvement. They claim that manufacturing productivity has improved by 5 per cent. a year since they took office. Secondly, that transformation has not occurred throughout the whole of the Government's period in office. It started in 1983 and 1984 and it has now stopped. It seems to be linked to rising GDP. When GDP rises, the rise in productivity occurs. Thirdly, this has occurred many times in the past. It occurred under the Heath Government and under the previous Labour Government. When a recession occurs followed by a recovery, there is a rise in productivity. Finally and most importantly, it is claimed that the improvement in productivity is linked to the law. However, it does not phase with the law very well. Most of the improvements occurred before there was any law in this area. The more legislation that is introduced—there has been a doubling in the number of restrictive laws since 1988—the more the rate of improvement in productivity is reduced. Most people would say that, in terms of overall productivity and not merely in terms of manufacturing productivity, the productivity miracle is over. Most people would consider that there will be no improvement in overall productivity 560 over the next two years and that it cannot be correlated to the law.
The same phenomenon occurs with inflation. The fall in the inflation rate pre-dates the restrictive legislation. That fall occurred in 1980. As legislation increases, the problem of wage induced inflation gets worse. The root of wage induced inflation at the moment—the Government more or less accept this now—does not lie with organised workers at all. Wage induced inflation is being pushed up from the top. The further down the ladder one goes, the lower the rate of wage increases. If one consults Incomes Data Services, that body will reveal that in any month of the year the average annual rate of settlement in the organised sector of the economy is somewhere between 8 or 9 per cent., whereas in the unorganised sector which constitutes businessmen, personnel executives and chief executives the average annual rate of settlement is 20 or 25 per cent. In the case of the chairman of British Airways it is 100 per cent. Therefore the rate of inflation has nothing to do with the level of wage settlements because that level this year is roughly the level of the retail prices index.
I suggest that as regards productivity and wages there is little to be said. Let us come to the litmus test of strikes. The Minister in another place had some comments to make on this. The Government can say that this Bill is directed at the problem of strikes, the illegality of all forms of sympathetic action, trade union liability for unofficial strikes without ballots and the right to victimise strikers on a selective basis. This Bill represents a redoubling of the Government's efforts in respect of legislation on strikes. The Minister left out of his speech some comments of the Secretary of State. On Second Reading in another place on 29th January the Secretary of State made two claims. He said at col. 39 of the Official Report, that the number of strikes was at its lowest for 50 years. I see that the Minister nods at that. The Secretary of State claimed that legislation was a primary cause of that. He further claimed that working days lost were running at 13 million a year in the 1970s but in the past three years they had been running at one-third of this rate.
There are a large number of points that one could make on that topic but I shall make just a few. The first point to make is that the number of days lost due to strikes has been falling merrily since 1970 and not since 1979. The fact is that we now have only 20 per cent. or less of the number of strikes that occurred in 1970. Apart from a single step fall in 1980—that could have nothing to do with legislation as we had not had an effective employment Act by 1980—which occurred in the middle of the recession, I calculate that the fall in the number of strikes since 1970 has been roughly 6 per cent. a year on average. That figure has remained much the same during Labour and Tory governments. Since 1970 the number of strikes in this country has been falling. There is no mystery about that. It is due to improvements in bargaining structure that occurred in the 1970s, especially the one-step change that occurred in 1980 due to the depression, the rise in unemployment and the shift away from manufacturing employment.
561 As regards working days lost, it is extremely disingenuous of the Government to select the past three years in order to produce a two-thirds fall in working days lost. The Government have selected the past three years because that does not take account of the events of 1984. In that year 27 million working days were lost and the miners' strike occurred. The Government do not wish to include that figure, so they leave it out. I estimate that the number of working days lost under both Labour and Tory governments since 1970 is virtually identical. Under the Labour Government the number of working days lost averaged 9 million a year and under the Tory Government it averaged 9.4 million a year. The Government may say that is history and they want us to look at the immediate past. In that case let us look at the past four years rather than the past three years. In that case we shall see that the number of working days lost has doubled in the past four years from under 2 million to 4.1 million.
The argument that, internally, the Government have transformed the British strike record is highly suspect. The best arguments are the international ones as deployed by my noble friend Lord Wedderburn earlier. The best analysis of the international arguments appears in an article by Professor Willy Brown in the National Institute Economic Review. He shows that, according to the Government's own figures based on information issued in the Department of Employment Gazette and drawing on International Labour Organisation comparisons, in the 1980s working days lost per thousand fell in 15 of 20 countries. They fell most in countries other than Britain. In countries like Australia, Ireland, Japan, the Netherlands and Sweden they fell by 50 per cent. or more. However, in Thatcherite Britain they fell by 25 per cent.
We know why that is. It is quite simple to ascertain that. In a period of worldwide recession which affects working days lost, the Government did not take advantage of that situation because they were undergoing a series of unnecessary, bitter disputes with the public sector trade unions. The Government have preferred to legislate to stop strikes rather than to use the provisions of ACAS and go to conciliation and arbitration. They could have avoided these confrontations, but again and again they decided to go to law. We see no reason why we should support this Bill or why we should welcome the seventh, eighth, or ninth son of Frankenstein. We shall oppose the Bill all the way.
§ 1.9 p.m.
§ Lord O'Hagan
My Lords, the noble Lord, Lord McCarthy, began by complaining about the brevity of the Minister's speech. However, he proceeded to remedy that defect by speaking for a long time himself. He then went on to say that he was surprised that the Minister here agreed with the Secretary of State in another place and that they had said the same thing. I do not think the Minister here would last very long if he said a different thing.
I flew from Strasbourg last night, somewhat delayed by industrial action—whether primary, secondary or tertiary—in air traffic control over various of the member states of the Community 562 over which I had to pass. After listening to the contributions from noble Lords on different sides of the House I wonder whether there is anything left for me to say. Most of the main issues have been dealt with, particularly by my noble friend Lord Boyd-Carpenter. However, there is perhaps one illustration that I can leave for noble Lords to think about over the weekend.
Yesterday in the European Parliament as an elected Member I was debating Community legislation with my socialist counterparts there. There is a very striking contrast between noble Lords opposite and socialist Members of the European Parliament at the left-hand edge of the hemicycle. Noble Lords opposite do not want any law in this field, or at least they want it reduced or are opposed to the Government's proposals. They do not have much to put in the place of those proposals but they do not like them and they want to reduce the intervention of the legal system in these areas if at all possible. In contrast, their socialist colleagues in the European Parliament want the law introduced everywhere, all the time, into everything, particularly on the topic that we discussed yesterday, the field of temporary or part-time work on which the Commission has just made proposals. I wonder at this contrast between British and European socialists, who wish to have extreme legislation and the right of the courts to invervene in every kind of matter.
§ Lord Wedderburn of Charlton
My Lords, I thank the noble Lord for giving way. Will he think back to my expression of the policy which has been set out, and to which the Minister referred, desiring a set of rights in employment and trade union law and proposing a whole series of laws? 'There is no question of our wanting no law at all. Is the contrast not now one that the noble Lord would want to withdraw?
§ Lord O'Hagan
My Lords, for a long time I subscribed to the idea of incorporating the European Convention on Human Rights into British domestic law. I was a member of the Select Committee here in 1977 when all the Conservative members voted in favour of that proposal and all the Labour members voted against it. Therefore I maintain my position. I welcome the recent conversion of the Labour Party to having a small version of the European Convention on Human Rights incorporated into British law. I wish they would go the whole way. I am not talking about human rights in the sense of fundamental liberties but of the role of the state or of the European Community in employment issues more generally.
It is striking that the British elected socialist Members of the European Parliament who take the Labour Whip have moved towards a position in which they have become more and more closely associated with the European Community. I would ask the noble Lord, Lord Wedderburn, to re-examine what he said about the social charter. I sit on the committee of the European Parliament which deals with that issue. I may have misheard the noble Lord—his windmill manner of delivery is so fast 563 that perhaps he was too quick for me. However, he implied that the social charter itself has legal force within the Community and that the rights concerning collective bargaining are matters over which the social charter has some say. They remain entirely national matters. The social charter is an interesting commentary and the Government's views on the social charter do not relate to this Bill.
§ Lord Wedderburn of Charlton
My Lords, once again I am obliged to the noble Lord, who invited me to clarify my position. I am sorry that I went too quickly for him. We are very well aware that the social charter is a statement of principles and that the action programme is a proposal to put some but not all of those principles into Community legislation. We also recognise, and wish that the Government and their Back-Bench supporters would recognise, that the social charter enshrines a package of rights against which we would wish to see legislation measured in this House. If the noble Lord is at one with us on that we are very happy that that is so. I invite him to say that he is, in contrast to his Front Bench.
§ Lord O'Hagan
My Lords, I am delighted that the noble Lord has confirmed that the real reason for the Labour Party's change of views on the closed shop has nothing whatever to do with the social charter. They wanted to do so anyway and the social charter issue was an alibi.
We are moving towards a series of detailed examinations of the individual clauses of the Bill. I may not be able to take part in all of them. I believe that it is very important that we ensure that our international comparisons are valid. That is the only point that I should like to make to my noble friend Lord Strathclyde, whose speech I welcomed.
I do not believe that all the references made to the ILO by the noble Lord, Lord Wedderburn, or to the European Community aspects, or in particular to practices among member states, will stand up to close examination, particularly in so far as he tried to alert your Lordships to the idea that our way of approaching the closed shop issue was specifically British. If I have misinterpreted him I hope that he will correct me. The noble Lord will find that we are coming up to a general European standard and are now guaranteeing people rights that have been taken for granted in other member states for a very long time.
This is an interesting debate. I do not expect that anybody who has listened to me has benefited from it, but I have certainly benefited from listening to the rest of your Lordships on this fascinating series of topics. I welcome the Goverment's slow, steady and thorough approach to these issues, which is far better than a huge explosion of legislative activity which would be bound to get something wrong. I hope that we can proceed to examine the clauses of the Bill as it goes through the House. I shall try to come back from time to time to speak briefly on the European aspects.
§ 1.15 p.m.
§ Lord Houghton of Sowerby
My Lords, the presence and the speech of the noble Lord who has just spoken lend added importance to the debate. It is obvious that the Government do not regard it as an important debate, otherwise we should not be meeting in the gloom of a Friday to consider it.
One can always tell when a debate in your Lordships' House is important. When the cameras are off it is not important. The lights go down. The only time that we have full enlightenment is when the cameras are on and the lights are up. At other times the cameras are covered in their red hoods and look upon our proceedings like apparitions with evil portent, rather like the eye of the KGB.
We attach importance to this debate. Otherwise we should not have called to our aid this morning visiting professors—my noble friends Lord Wedderburn and Lord McCarthy. When we have them on our side we can be sure that by the time they have finished their speeches the full indictment of anything brought before the House by the Government will be complete.
I began to think that we had left the Second Reading and had moved on to the Committee stage. I should warn the Minister that that does not mean that it will be suitable to bring the Committee stage of this Bill in the supper break on some future occasion. We should like to have it at a more appropriate time.
§ Lord Houghton of Sowerby
The noble Lord, Lord Boyd-Carpenter, must have a grievance this morning. He has been denied, and his television fans have been denied, the full publicity and approval that he receives for his many speeches defending Her Majesty's Government. The noble Lord is so popular for his defence of the Government because he is one of the few Members on the Benches opposite who does so. There are plenty of noble Lords who could do it. Look at the bevy of ex-Cabinet Ministers. There are at least two Tory Cabinets in this House, yet we hardly hear a word in defence of the Government from them. That is because they all have grudges against the Government. I keep wanting to call the noble Lord, Lord Boyd-Carpenter, my friend, and I venture to do so, because we have worked for so long on different sides of the House on matters of close personal interest.
I am prepared to look at some of the proposals in the Bill from a dispassionate point of view. The noble Lord, Lord O'Hagan, has told us that there is a European dimension to the Bill, as there is to almost everything that we touch now. I think it means that a Bill of this kind is perhaps not relevant or at least not timely when considered in association with our European friends and partners.
We want greater harmonisation and attempts are being made to achieve it. Although the proposals in the social charter and the attitude of M. Delors are probably not fully acceptable to the Prime Minister, we have there the beginning of the unification and 565 harmonisation of working conditions and trade union and worker participation that we all want to see throughout the whole of Europe in our future work.
In Europe even the socialist Members of the European Parliament are anxiously looking at law-making in connection with working conditions. We are not. In this connection we regard law-making with great suspicion and are very reluctant to embrace its advantages, even when they may be clear. The trade unionists and the workers in Europe have regarded the law as a friend and protector. In this country we have regarded the law as the enemy of the trade union movement. That is purely historical and it is an attitude which is very difficult to remove.
The Whitley Council system that we introduced into this country in 1919 and applied only to the public services was accepted in Germany to cover the whole of the working population. It has endured there ever since. Their rights are embodied in labour codes in more detail than ours. They are much more explicit than even our laws are today. I do not think that we ought to be afraid to look at the formalisation of conditions of work between employer and worker and trade unions and the state, which in Europe has been carried much further than we have yet attempted to general consensus.
It is a great pity that we have a Bill of this kind in 1990 which I presume has not been discussed with the TUC. Consultation with unions has probably been of the most casual kind. By this time we ought to have much closer association between employers and unions to reach common agreement on whatever may lie ahead. The noble Lord, Lord Boyd-Carpenter, described conditions in the past and how far this Government had brought us in the reform of trade union law. I concede that. I am only sorry that the trade unions could not do it themselves and left it to a Conservative Government to do what in many respects public opinion regards as the right thing to have done. It is notable that neither the trade unions nor the Labour Party today propose to go back on much of what the Conservative Government have introduced. In fact trade unions' and workers' opinion was changing at the time that public opinion was changing.
The union of which I was secretary for over 38 years had ballots on the election of officers and executive committee members. It introduced an entirely new concept of democratic control of the organisation before the Government came on the scene. Had one waited a little longer, I am sure that other unions would have undertaken similar reviews of their arrangements.
We needed a change in trade union democracy. There was far too much power put in the hands of executive committees and full-time officers. I believe that the Government went too far in putting the officers or trade unions under a five-year re-election system. In my view they have gone too far down the scale of responsibility in trying to steer clear of political influences at work in re-election. There are still political influences at work in the election of officers and executive committee members in a number of trade unions.
566 Since we are all going into a market economy and a good deal of what the trade union movement and the Labour Party stood for has been modified and even abandoned, I hope that it will soon be possible to get down to mutual industrial relationships which are more free of political ideology than before. I have long held the view, and have expressed it many times, that one of the great drawbacks in this country since the war has been the inability of the trade unions to come to terms with private enterprise. That was the root of much of the difficulty that we had. So long as that enmity and gap exist between employers and employees, we are bound to have a good deal of misunderstanding and difficulty.
I am sorry that the Government have brought the Bill forward now. Quite frankly, I do not think that it is worth while occupying parliamentary time with this Bill when there are so many pressing calls upon us. It would have been better if we had said that from now on we wanted to look at legislation in the European context and there was no need to go forward with little bits and pieces of national legislation. I do not think that we fully realise the implications that European unity will have. There are too many people pulling back in the name of nationalism, sovereignty, independence and identity. The world will not provide for that kind of thing in the future. We must take our place now among other nations which have similar problems and to which we probably have important messages to deliver.
I do not approach the Bill with any fundamental bias. I should like to look at exactly what is proposed, why it is proposed and what justifies the inclusion of some of these proposals in the Bill itself. That is the approach that we can all make now.
§ 1.27 p.m.
§ Lord Jenkins of Putney
My Lords, a little while ago my noble friend Lord Willis wrote an entertaining article for The House magazine in which he examined the customs and practices of this House. Among other things he pointed to the development of what I suppose might be called "peerese" and the language that we employ. Among the examples that he gave of the use of peerese was that when we say "I shall not follow the noble Lord down that path", we really mean, as they say in the other House, "Rubbish!" I would not dream of using that word in respect of the noble Lord who introduced the Bill. I shall simply say that I shall not follow him down that path.
Comment has been made on the relative shortness of the noble Lord's speech compared with that of his right honourable friend in another place. Comparing the two, the main difference was not a difference in the length of the speeches but the number of diversions which the Secretary of State had to endure in the other place. I think that it might be rather a good idea if in this House we were to adopt the practice of interrogating a noble Lord who is introducing a Bill during the course of his exposition. It would enliven the proceedings. I see that the noble Lord is nodding. It would be useful not to regard a request to elucidate a point during the course of the speech as something which ought not to happen. It 567 is perhaps a change in custom and practice which might conceivably be adopted. Your Lordships will not be surprised if the remainder of my remarks relate to the interest that I have in the fate of the British Actors' Equity Association rather than the customs and practices of this House.
By chance I recently came across an edition of the Equity Letter. This publication was a quarterly report to members of the British Actors' Equity Association, issued in January 1959. I must declare an interest. At that time I was the assistant general secretary of that trade union. The article was not written by me. It was probably written by Gerald Croasdell, the second of two brilliant lawyers, the first being Gordon Sandison, who were general secretaries for Equity. The article begins as follows:We, the undersigned, hereby pledge ourselves that we will not enter into any engagements with theatre managers on conditions which would deny our right to refuse to work with non-members of Equity".Noble Lords will note with interest that what is being asserted here is a right. It brings forward the proposition which is difficult for members of the Government to accept: that there is such a thing as collective as well as individual rights. On occasion a collective right can properly override an individual right. We accept in a number of fields in general legislation that the individual cannot always do exactly as he wishes and that a collective right is right and proper.
I wish to suggest to the House that under certain circumstances the existence of such a collective right is proper and necessary.
The article continues:The Roll of Honour which hangs in the Council Room at 8 Harley Street, is signed by the leading actors and acresses of twenty-five years ago,"—that is 1934——many of them happily still leading today, including the president, Felix Aylmer, Lewis Casson, Edith Evans, Sybil Thorndike and many others. There are some who are no longer with us and these include Yvonne Arnaud, Leslie Banks, Robert Donat, Leslie Henson, Gertrude Lawrence, Owen Nares, Ivor Novello, Godfrey Tearle, Marie Tempest",and so on.
If it were possible to say that a single decision was responsible for the fact that Equity has long passed its twenty-fifth birthday and looks forward with reasoned confidence to the future, this early assertion of the principle of universality of membership would be that decision".Later the article states:Hard experience proved to the profession that standard contracts and enforceable minimum conditions can only be won on the basis of two principles established in the early battles after the formation of Equity. These are, first, that no member will work except upon an Equity-approved contract and, second, that no member will work with a non-member, i.e., with anyone who does not accept the same obligation.If these principles were to be lost in practice, there is no reason to suppose that the Association could survive".That may be as true today as it was when it was written in 1954. The circumstances of an actor's employment are extremely arduous. The article continues:Partial organisation may be partially effective in such secure occupations as banking, but in the jungle in which the actor of today still fights for a living as did his predecessor of twenty-five568years ago, the bald fact of the matter is that you either have complete organisation or before long you have no organisation. This is so well accepted in the profession that over the years it had rightly come to be taken for granted that membership of Equity is a necessary part of the profession of an actor".Once again that is still the situation.
Following the custom and practice when dealing with trade union matters, I wish to suggest that there is a general feeling that something is wrong and must be put right. The complexity of the situation and the nature of the different closed shops are only accepted by the Government by a broad distinction between a pre-employment closed shop—that is, a limitation on entry—and a post-entry. But the situation is very complex. Equity's situation is unique to that association just as the situation relating to other trade unions is unique to those organisations. The complexity is great.
I liken the Government's attitude to trade unions to that of the Labour Party at one time with regard to the City: that the City was generally bad and therefore we need not bother about it. That is the attitude of the Government towards trade unions. We now have Members on the Labour Front Benches and Back Benches who know a great deal about the City and can hold their own in a debate on that subject in any company. However, I have noticed no one on the Government Benches in either House who brings to the subject of trade unionism the same expertise as is now found in the Labour Party in relation to the City, evidence of which we have heard from my noble friends on the Front Bench and Back Benches.
What is to be done? The Government have not been entirely unsympathetic behind the scenes. When it has been brought sharply to their notice, they have understood the real problem whereby an association which does good work is in peril. The statement refers to the principle of universality of membership. That principle is exerted elsewhere. As the noble Lord, Lord Boyd-Carpenter, pointed out, when it is exerted in the medical or legal professions it is on the ground of qualification. However, universality of membership achieved in such a way also brings with it consequential universalities elsewhere. I believe that the legal and medical professions are held in high regard, and are suitably rewarded due in part to the principle of universality of membership exerted for quite different reasons.
The same applies to the British Actors' Equity Association. A principle of universality exerted for hard economic reasons has had this effect. It is generally recognised that the British actor has a standard and level of performance which is quite unique in the world. That is because the British actor accepts a degree of discipline that is not exercised in other countries. That degree of discipline stems from the Equity union shop.
The Government have seen that some means ought to be found, if possible, to deal with this unique situation in a unique fashion. When it arose originally it was dealt with by the creation of the theatre councils. The theatre councils issue Equity contracts. They are not called Equity contracts, but Esher contracts. The name stems from that of the third Viscount Esher, the father of the present noble 569 Viscount, Lord Esher. He was a most remarkable man. He became the first chairman of the theatre councils, a position at present held by my noble friend on the Front Bench.
The Esher standard contract was the means whereby the principle of universality of membership could be sustained. The contract provided that all managers should be registered managers and all artists should be registered artists. Such registration was achieved, on the one hand, by membership of the Society of Theatre Managers and, on the other, by membership of the British Actors' Equity Association. The universality was achieved on both sides by a device which avoided mentioning either the society or Equity. A similar arrangement could now be approached.
It is my hope that the Government will look at the issue and at a later stage make an announcement in this Chamber. I shall not ask the Minister to commit the Government at the moment. However, in discussions with Equity a previous Secretary of State for Employment showed an understanding—and I put it no higher than that—of the nature of the problem. He spoke of the necessity of finding a way to preserve the universality of membership upon which the acting profession depends. Although in the amendments that we shall table we may not succeed in our endeavour to introduce those changes into the legislation, I hope that in Committee we shall obtain from the Minister the kind of undertaking that will enable the universality of membership principle to apply in the acting profession. It is necessary that that should occur by one means or another. It is my hope that we shall be able to achieve that.
We shall endeavour to improve the Bill in Committee. If we cannot do so, we can at least hope that the Minister will give the kind of understanding which will enable an association, which has done valuable work in our society, to continue to operate on the necessary basis, having regard to the circumstances within which the acting profession necessarily operates in the kind of society in which we must work.
§ 1.42 p.m.
§ Baroness Turner of Camden
My Lord, with the Bill we have yet another piece of unnecessary legislation aimed at restricting trade union rights. Of course, as was expected, the Government seek to justify their approach by claiming an improvement in industrial relations. They attribute the apparent—and I emphasise the word "apparent"—decline in strikes in the private sector to the impact of their legislation. However, the past 10 years have also seen a decline in the manufacturing sector and with that an increase in unemployment in that sector. In my view, that has had a far greater influence than the legislation which the Government have introduced. Indeed, that point was made with force by my noble friend Lord McCarthy.
In the public sector we have seen the longest dispute of the decade; that of the ambulance workers. I hope that not even this Government will have the nerve to suggest that the public was on their side in the dispute. Every indication was entirely to the 570 contrary. That lengthy dispute was largely sustained by public support because people freely gave money to help to maintain it. I hope that the Government do not feel inclined to go down the path suggested by the noble Lord, Lord Boyd-Carpenter, in relation to public-sector disputes. That would put us in further breach of our international obligations.
The Government are going over the same ground, perhaps believing in their propaganda that union bashing is an electoral winner. However, even among their supporters the Government will find that the continual sniping at unions is becoming a bit too much. That is particularly so because it is widely perceived that the need is not for more legislation about unions but for a really sustained effort to be made to bring workforce skills up to the standard needed in Europe; in other words, better and more sophisticated training programmes and facilities.
My noble friend dissected the Bill in his opening address. Therefore, I wish to limit myself to dealing with some of the points made in the debate. I shall I also make a few of my own resulting from my experience as an official of a union for some 20 years and a member of the TUC General Council for eight years.
First, there is the matter of the closed shop. Successive tranches of government legislation have made it increasingly unenforceable. I believe, as does the TUC, that the Government have exaggerated the number of employees covered by closed shop arrangements and have done so for their own purposes. The balloting hurdles which must be overcome to retain close shop provision are formidable; 80 per cent. of the workforce eligible to vote must be in favour. Yet despite this, in the majority of ballots there has been overwhelming support for its retention. Therefore, it continues to have support at shop floor and company level.
Nor should the Government believe that it is union officials and executives who are the principal proponents of the closed shop, or 100 per cent. trade union arrangements for that matter. It is often the rank and file trade unionists who say, "Why should they"—that is the non-unionists—"get the benefits of what we do if they do not pay? Why should we have to put up with these free riders?" In my day we resolved that problem by saying that those who did not want to pay to the union could pay to an agreed charity—often The Save the Children Fund—so that they did not receive the benefits for nothing. But even that is not possible under this Government's legislation.
We were told by the noble Lord, Lord O'Hagan, that in many EC countries the closed shop is outlawed. But in some of those countries it is permissible for unions and management to negotiate deals, the benefits of which go only to union members. That is a powerful incentive to join and to maintain union membership. However that may be, my party accepts the provisions and the philosophy of the European social charter which contains the right to belong and not to belong to a union. I emphasise that we accept the charter as a whole. The Government do not accept it at all and so can scarcely rely on that.
571 Of course, the Government give much greater protection to the right—the negative right—not to belong to a union than they do to the right to belong. On that issue the Government are vulnerable because of their attitude to union membership at GCHQ. Moreover, although the blacklisting of union activists is known to be a widespread practice, there is no prohibition against that in the Bill or any indication from the Government that they believe that there should be.
Then there is the matter of secondary action. Again, the clause in the Bill is a clear demonstration of the one-sided approach of the Government. The effect of the clause is to make unlawful virtually all action which is not primary action. But an employer may put out work to a subsidiary. If the union attempts to block it by support action at the subsidary that, presumably, would be unlawful under the clause. Therefore, the employer may use his superior financial strength and organisation but the union may not attempt to do likewise. That does not appear to me to be very even-handed. It is highly likely that it so damages the essential right to strike that it breaches ILO Convention No. 87. That issue was dealt with at length by my noble friend Lord Wedderburn. There will be an opportunity next week for a fuller debate on the subject because the Government have decided that industrial relations should be one of their subjects for debate. I look forward to the debate. The Government are on very weak ground in relation to some of the issues.
To return to the secondary action issue, I have always much preferred to call it "sympathy action". Trade unionists have often been told that they are selfishly seeking only their own immediate good and that they care nothing for anything else. But sympathy action occurs when trade unionists not immediately affected want to help their colleagues. So far from being rather discreditable, as the Government appear to believe, it is quite the reverse. It actually has a moral dimension quite absent from the Government's legislation.
Earlier in the debate the issue of Ford at Dundee was raised. It was a more complex issue than was indicated by the Minister or the noble Lord, Lord Boyd-Carpenter. Certainly, it was not secondary action because the action was directed against the same employer. We should of course return to those issues in Committee.
The next major innovation in the Bill is the attempt to make unions responsible for unofficial action. They are to be responsible even when it is organised at shop floor level by unpaid officials such as shop stewards—a departure from the normal legal obligations of employers who are responsible only for the actions of paid employees. Those who drafted the legislation can have little connection with ordinary industrial life. Disputes often begin as unofficial action because of local grievances or breaches of procedure, and managements can breach procedures, not just unions. I have known that in my union experience.
There may be work hazards or an unsafe system of working. There is nothing on the face of the Bill 572 to protect employees who walk off a job to protect their lives and those of their colleagues. Yesterday there was a Question in this House on the unsafe methods of working at the Channel Tunnel. We were told that there had been six fatalities and a very large number—I believe it was 502—of accidents. Therefore, there are some very hazardous working environments. This Bill does nothing to protect workers who walk off a job to try to protect themselves in those sort of environments.
In future, the union will only be able to avoid liability by writing to every individual repudiating the action. By the time that cumbersome process has been effected, the dispute may well be over. Even so, generally speaking, unions are not happy about unofficial action. Union executives and senior officials will often want to intervene to settle such a dispute as quickly as possible. However, if they have to start by repudiating the action by writing to every individual, credibility will have been damaged before that process starts and the chance of intervening and reaching an amicable solution may well have been lost.
It is noteworthy that the Institute of Personnel Management, which has experience of industrial relations on the other side, is not in favour of that measure and believes that it will not increase the chance of industrial peace. The Government should have left that well alone.
There is then the entirely obnoxious provision whereby an employer may selectively dismiss individual unofficial strikers and such people then lose their right to go to an industrial tribunal. Furthermore, a union will not be able to organise an official dispute following a ballot in support of such an individual and still retain immunity.
Surely that is grossly unfair. Perhaps even the Government can see that that is so. Even given the Government's ethos, let us suppose that an employer has made a mistake. Is the individual to have no legal right in this respect, with his colleagues also being debarred from supporting him? Is there to be no alternative in those circumstances but the dole queue? Again, I question seriously whether or not that interferes with the right to withdraw labour in a way which breaches ILO conventions.
Incidentally, employees in this country who withdraw their labour have far less protection than applies elsewhere in the EC because contracts of employment are regarded as terminated instead of suspended. The Government have steadfastly refused to do anything about that despite the fact that we have repeatedly raised it during discussion of previous employment Bills.
The commissioner for trade union rights is to be given further powers, presumably because so far she has not had enough to do. At this stage, I shall not say much about those responsibilities but I take amiss the fact that she will be able to join her name to any proceedings which she is assisting. For a number of years I was a member of the Equal Opportunities Commission. We did not have such a right despite the importance of the cases which we supported and we could have done with the money allocated to that quite unnecessary office.
573 At a late stage in the Bill the Government introduced a few more unnecessary provisions by way of amendment; for example, the requirement to put the names of those able to call a dispute on the ballot paper. Is that the whole of the national executive? In many trade unions the only body with the ultimate power is the national executive council. Sometimes that body has as many as 60 members. That is not at all unusual in a case in which there have teen union mergers.
There is then the requirement to put on the form the name of the independent scrutineer. Again, there does not seem to be an adequate reason for that. Moreover, I note that the amendments introduced in the other place repeat also the requirement to implement a dispute decision within four weeks of the date of the ballot. That is despite the success in this House of the Bill of the noble Lord, Lord Campbell of Alloway, which would have given to the courts discretion in cases where an employer had encroached upon the four weeks by a series of legal actions. There will be an opportunity to return to that in Committee and we shall certainly do so.
Finally, dealing briefly with the ILO, there will be an opportunity for a fuller debate on industrial relations next week. For now, suffice it to say that the ILO has already warned the Government about the complexity and cumulative effect of piecemeal legal reforms and the Government's apparent lack of concern on the rights of trade unions and their members. The ILO asked the Government to report to it on measures to codify, clarify and simplify the legislation covering industrial relations. This Bill is not a contribution to that process.
As has been said on this side of the House by my noble friend Lady Phillips in particular, an employment Bill gives an opportunity to introduce a number of progressive measures designed to protect people against discrimination. Even within the Government's ethos, it would have been possible to do that. It would have been possible to have introduced measures to deal with discrimination against part-timers, the disabled and those who are HIV-positive or AIDS sufferers. However, the Government have not taken the opportunity to do any or that. Instead, we have a Bill which is not about employment at all. It is another dose of union bashing and we shall attempt to resolve that as best we can in Committee. I know that it is not the practice in this House to oppose on Second Reading measures which have been passed in the other place. We cannot do that. However, we have left your Lordships in no doubt as to the way in which we on this side of the House view this unnecessary and obnoxious measure.
§ 1.56 p m.
§ Lord Strathclyde
My Lords, it comes as no surprise that we have had a most interesting debate. However, it comes as a surprise that I was accused of not speaking for long enough on my introductory speech. That is because the Bill is short and simple and I thought that I should keep my speech within the same vein.
It came also as a surprise to hear the noble Lord, Lord Houghton, complaining that this debate was 574 taking place on a Friday and that that was an indication that we do not regard this Bill as important, partly because the television cameras are not on. He referred to the fan club of my noble friend Lord Boyd-Carpenter being disappointed by the absence of the television cameras. I can tell the noble Lord that my noble friend's fan club has been in existence far longer than television cameras have been in this House, and long may that continue. I am sure that the same is true for the noble Lord, Lord Houghton, himself.
However, I can confirm to him that the Committee stage of the Bill will not be taken in a dinner hour but that we shall have a full day or two on it.
Our debate on this Bill has concentrated to quite an extent on international comparisons, on a social charter, on the ILO and the European community. That is why it has been so interesting and helpful to have my noble friend Lord O'Hagan present at our deliberations. We have been able to listen to his advice and I hope that he can be present in Committee.
Noble Lords opposite have argued that the Bill should be used to implement all the rights of the European Community's social charter. I feel that that is an ill-considered suggestion. The Opposition is well aware of the Government's position on the social charter. We have consistently made clear that the charter as drafted is unacceptable. The Prime Minister confirmed that view when the issue was considered at the European Council meeting in Strasbourg at the beginning of December.
The charter paves the way for more legislation, much of it in areas which we believe are best left to employees and employers to settle themselves. We can see no need for the sort of harmonisation on social legislation which seems to lie behind the charter. That would be to ignore the great variety of customs and practices which exist within member states. There can be no doubt that if the charter were implemented in full, it would add considerably to employers' costs. That would only damage competitiveness and restrict firms' abilities to grow and create new job opportunities. By seeking to guarantee to employees some of those rights in law, we should be guaranteeing the deprivation to many people of new jobs and the opportunity to improve their living standards. That cannot be sensible.
§ Lord McCarthy
My Lords, the noble Lord is at it again. He says that there can be no doubt that it would be highly costly. I take it that he will not advance any figures at all.
§ Lord Strathclyde
My Lords, I am more than happy to produce figures when we reach Committee stage if that is required.
Perhaps I may turn to the ILO criticisms of our employment law. In 1989 the ILO Committee of Experts made a number of comments regarding UK law in connection with ILO Convention 87 on freedom of association and protection of the right to organise. There is nothing unusual in that process. The same committee, as part of the same report, made a number of similar comments with regard to the law in other European Community countries.
575 Examples are, in Germany, the law allowing civil servants to replace striking state employees; in Greece, the law concerning strikes and state enterprises; in the Netherlands, ministerial powers to freeze the operation of collective agreements. There is nothing strange in the ILO looking at the employment laws of this country.
The Government responded to the ILO committee's points. As usual those comments were offered in confidence. However, the TUC subsequently withdrew the complaint that it had made regarding certain aspects of UK employment law. Accordingly there was no need for the matter to be further considered by the ILO. The TUC's withdrawal of its complaint speaks for itself; clearly it had no confidence that the ILO would uphold its views.
A lot of nonsense has been talked about comparison with other European Community countries.
§ Lord Wedderburn of Charlton
My Lords, before the Minister leaves the subject of the ILO, will he confirm that the Government accept the many judgments of the Freedom of Association Committee and the governing body, and that, in accepting those judgments, the dismissal of those on strike or taking unofficial action by reason of that action is a breach of Convention 87?
§ Lord Strathclyde
My Lords, I shall return to that point in a moment. I shall first deal with other European legislation and the accusation that other countries somehow have better employment laws than we have in this country. In many respects other European countries place far greater restrictions on industrial action than we do. For example, legally enforceable collective agreements are the norm in all Community countries except the United Kingdom and Ireland. In Germany, Denmark and Belgium, any strike in breach of the peace-keeping provisions of the collective agreement is unlawful. Industrial action is unlawful if its effects are out of proportion with the demands being made, and the courts will decide whether that is the case.
Recent court decisions included a ruling in France that a strike was unlawful because it impeded the function of a factory. In the Netherlands, industrial action by nurses was limited by the courts because of the effect it had on patients. In Belgium, industrial action by airline staff was ruled unlawful because of its effects on the community. Are those the actions that noble Lords opposite now wish to bring into United Kingdom law?
Certain groups had their right to strike removed by special legislation or administrative order. In Germany, all civil servants, teachers and post office staff are forbidden by law to strike. In France, the ban applies to prison officers and some postal workers; in Denmark, to all civil servants. I think I have said enough on that point. Perhaps noble Lords will agree that encompassing other European countries' customs and practices on employment law into our own legislation is not necessarily the best way forward.
576 The noble Lord, Lord Wedderburn, felt that the UK would be in breach of ILO convention obligations. The Government believe that nothing in general employment law or within the Bill is inconsistent with our international obligations, including various ILO conventions.
§ Baroness Turner of Camden
My Lords, perhaps the noble Lord will give way. Have the Government yet responded to the ILO criticism of the piecemeal, cumbersome and complex nature of our legislation? Will they codify and simplify in the way that the ILO propose?
§ Lord Strathclyde
My Lords, we have responded to the accusations from the ILO. I am not sure that we have received a reply to that response.
The noble Lord, Lord Wedderburn, said that no other country has this kind of law limiting the scope for secondary action. Perhaps I may make a point regarding secondary action, which the noble Baroness, Lady Turner of Camden, said she preferred to call sympathy action. "Sympathy action" is a typical example of the Labour party using weasel words. We are dealing with secondary action; everybody knows that secondary action has been extremely destructive to vast amounts of British industry over the course of the past 20 years.
Instructive as it may be to know what happens overseas, no other country has the same framework of industrial relations and trade union law, or indeed the same industrial relations institutions and traditions as we. The Bill is concerned to obtain the right framework for this country and not for any other country.
The noble Lord, Lord Wedderburn, asked why the Government are unpicking the arrangements they declared were appropriate and fair in 1980. The noble Lord made a point that we had changed since 1980. That kind of point shows that the Opposition have no understanding of what the step by step approach to reform of industrial relations and trade union law really means. It vividly demonstrates the degree to which the Labour Party is stuck in some kind of time warp in which the past assumes much greater importance than the present or the future.
An essential principle of our approach is to keep relevant law under review and not be afraid to go forward with proposals to adapt the law to present day circumstances and needs. That is what the Government did in the Green Paper Removing Barriers to Employment. The Green Paper proposals on secondary action won solid support. What was right for industrial relations law in 1980 is by no means right today. There are numerous examples of the Government revising legislation that they have enacted since 1980—for example, on the closed shop.
The noble Lords, Lord Rochester and Lord Wedderburn, also discussed the fact that it was unfair to make unions responsible for acts of shop stewards, since that is a unique concept of vicarious liability not applied to any other organisation. The law of the UK has long recognised that unions are special bodies and special law is appropriate to regulate their affairs. Attempted analogies between 577 unions and other bodies—for example, companies, sporting clubs and so on—are misplaced because they fail to take account of the different and unique purposes of a trade union.
I believe that the Opposition is being completely hypocritical in arguing that its own policy does not imply creating special conditions applicable to unions' vicarious liability. Under the last Labour Government's legislation the law on unions' vicarious liability was unique. Union funds, unlike those of companies or other bodies, were not put at risk even if union officers or officials committed unlawful tortious acts.
The noble Lord, Lord Wedderburn, knows, or certainly should know, that when the liability of trade unions for the acts of their officials was determined under the common law the result was uncertainty. I hope the noble Lord recognises that uncertainty in this area is of no benefit to anyone, least of all the trade unions themselves. The great advantage of the Employment Act 1982, and an advantage that will remain under the provisions of this Bill, is that the Act makes clear when a union is liable for the acts of its officials and when it is not. It appears that the noble Lord's party is prepared to abandon legal certainty in favour of the confusion demonstrated in the case Heaton v. TGWU simply because that certainty results from the Government's legislation.
I can confirm to the noble Lord, Lord Rochester, that in Committee the Government intend to table an amendment to Clause 1 to cover the situation where an employer makes an offer of employment and subsequently withdraws it, perhaps because he has discovered that the individual concerned is not a union member.
One important aspect of this Bill—an issue that I know we shall discuss at length in Committee—is the point raised by the noble Lord, Lord Rochester, and the noble Baroness, Lady Turner, on industrial action taken about unsafe working conditions. This issue was thoroughly debated in Committee and on Report in another place. I can assure your Lordships that we have given very careful consideration to the matter. Our conclusion is clear and unequivocal. The Government are absolutely confident that no court or tribunal has found, or will find, that simple refusal to do unsafe work amounts to taking industrial action.
It follows that if an employee simply refuses to do work which he believes to be unsafe and is dismissed an industrial tribunal has, and will continue to have, jurisdiction to determine whether dismissal was fair or unfair.
§ Lord Wedderburn of Charlton
My Lords, I am obliged to the Minister for giving way. This is simply an attempt to save time. There was a long wrangle in another place—we both know what was said on both sites—as to whether a stoppage in the face of unsafe conditions is industrial action. The legal basis on which the contrary view to that of the Minister was set out. The Minister will have seen the legal opinion. I have not seen it, but I am fairly sure what is in it. Will the Minister help us to save time by placing in the Library a statement of the legal 578 authorities and sources upon which the Government's case relies? So far they have not been stated. That would save time in Committee.
§ Lord Strathclyde
My Lords, I shall certainly consider that point if it is seen to save time. However, I have to point out that the legislation on unfair dismissal enacted by the last Labour Government, which made dismissal of strikers fair, made no special provision for refusal to work on grounds of health and safety. There was no need then and I do not believe that there is any need now. In any case, it is very far from obvious that simply stopping work is always the right response for an employee who genuinely believes that working conditions are unsafe. Except in a minority of cases where there is in fact, or is believed to be, real and serious risk of personal injury there are other options.
The noble Lord, Lord Mellish, the noble Baroness, Lady Phillips, and the noble Lord, Lord Jenkins of Putney, spoke about the closed shop and the benefits that it had brought over a period of time. All noble Lords spoke with great sincerity and long experience, particularly the noble Lord, Lord Mellish, on a number of aspects of the closed shop. I respect those passionate arguments in favour of the closed shop, but I am not sure that there is any real point in taking up those issues too strongly with me. Those arguments would be better pursued with the noble Lord's own Front Bench, both here and in another place, on whether or not the closed shop has a rightful place in industrial legislation.
§ Lord Mellish
My Lords, my views on the closed shop are, I believe, practical. I asked the Minister—I hope he will now reply—exactly what employers' organisations have pleaded with the Government to get rid of it. At least he should answer that.
§ Lord Strathclyde
My Lords, I am not sure that that evidence would necessarily prove anything either way. The noble Lord, Lord Mellish, also asked for evidence about the requirement to hold a ballot before strikes. There is a principle involved here. The Government believe that it is entirely right that a union should hold a proper ballot before calling for industrial action by its members. Again, there are some members of the noble Lord's party who agree with that. That is what the law provides and it has an enormous amount of support from employers and union members themselves. That is the point.
§ Lord Mellish
My Lords, I am sorry to interrupt the Minister again. He is very courteous. I give an example of cargo which arrives at the port of embarkation. It is in a bad condition. The men refuse to work at a particular rate of pay and they go on strike. The employers will not give way and say that that is the rate for the job. The result is that 200, 300 or 400 men may be affected by the dispute. Is the Minister telling me that there should be a ballot to avoid a dispute of that kind? How is it possible to have a ballot concerning a cargo which, if it is not dealt with straightaway, will never be dealt with?
§ Lord Strathclyde
My Lords, there does not have to be a ballot or a strike. There can be negotiation 579 to reach a solution which is mutually acceptable to both sides. There is no reason why a strike should happen. The noble Baroness, Lady Phillips, made a point about age discrimination which was supported by the noble Baroness, Lady Turner of Camden, who also introduced the matter of discrimination concerning the disabled and people suffering from AIDS. We discussed this matter at some length during the passage of the Employment Bill last year. I believe I am right in saying that the noble Baroness introduced a new clause. If she were to introduce a similar clause for this Bill, I suspect that it would be outside its scope. I have no doubt that the noble Baroness will be able to take advice on that.
I say to the noble Lord, Lord Jenkins of Putney, that Equity has stated that its casting agreements do not constitute a pre-entry closed shop. Actors who are not members of the union are able to gain entry to all areas of the profession. In any event, the Government believe that employers should be free to employ actors on the basis of their experience and ability and not because they hold an Equity card.
§ Lord Jenkins of Putney
My Lords, the notes probably exist of the discussion which took place with Equity and the predecessor to the present Secretary of State. I ask the noble Lord to look at those notes. If he does so, he may be more sympathetic when we introduce our amendment at Committee stage.
§ Lord Strathclyde
My Lords, I am more than happy to look at the notes if they exist, as I am sure they do. As the noble Lord said, that is something we shall be able to return to in Committee. My noble friend Lord Boyd-Carpenter made an excellent speech when he traced the history of employment legislation in this country. He proved how successful it had been in reducing strikes. That is the subject we shall be able to return to next Wednesday in our debate.
My noble friend rather accused the Government of not going far enough. He would like to see an addition to the Bill to prevent essential services going on strike. We have always believed that industrial action depriving the public of essential services is irresponsible. The Government have always condemned such action. Such bodies as the Armed Forces and the police have always been subject to special protection against industrial action through the criminal law. The Government can always use emergency powers to help to cope with a crisis.
The best way forward now is to make appropriate changes to the general framework of industrial relations and trade union law. For example, proposals on unofficial action should help to limit the disruption that it causes to essential services. We keep this matter under review and we shall continue to do so.
The noble Lords, Lord McCarthy and Lord Wedderburn, made certain criticisms of the detail in the Green Paper and the subsequent statements. As the Green Paper itself indicated, the statistics were based on a broad categorisation of the stoppages 580 covered by the department's statistics. The definition is of official or unofficial stoppages. The statistics probably underestimate the extent of unofficial action because they do not cover small strikes. They were produced by an internal exercise especially for the Green Paper. In reviewing the figures, account was taken of the reported views of those involved in industrial action.
The noble Lord, Lord McCarthy, also indulged in an extraordinary but not unexpected attack on the Government's record. If he really believes that there is no connection between the dramatic improvement in our strike record in the 1980s and this Government's legislation, he must be part of a very small minority. It is certainly true for many of the overseas companies which have invested in this country during the 1980s. The noble Lord chose not to mention the widely-recognised change in this country's reputation overseas which has been reflected in substantially increased investment and significant numbers of new jobs.
The Government's industrial relations policy is a key element in those changed attitudes, in generating investors' confidence and in creating the prosperity and economic climate that has brought new jobs to this country.
§ Lord McCarthy
My Lords, the noble Lord referred to my speech but not to my figures. Is he challenging any of my figures, which were designed to show that that improvement had not taken place?
§ Lord Strathclyde
My Lords, when it comes to the noble Lord's figures and to the amount of research that has taken place on government legislation and its effect on strikes, there is a great deal of uncertainty and confusion. The noble Lord has made his case. It is not one that is universally agreed, and I doubt whether it will become so.
The Bill represents a further measured step in the Government's reform of industrial relations and trade union law. The reforms it proposes will provide the right legislative framework as we enter the 1990s, but they in no way imply an end to the necessary process of review which must continue so as to ensure that our laws remain in tune with the developing needs of employers, employees, their trade unions and the community as a whole. Noble Lords will shortly have the opportunity to consider the detailed provisions of the Bill in Committee. I have no doubt that the general principles and aims of the legislation will meet with your Lordships' approval, though, as with previous employment legislation put before the House, it may well be that noble Lords will be able to make worthwhile improvements to the detail.
The Government's step-by-step reform of trade union and industrial relations law has made an important contribution to the regeneration of the economy achieved during the 1980s. The Bill will help us to continue that important progress in the 1990s. It is in that spirit that I ask the House to give the Bill a Second Reading.
On Question, Bill read a second time, and committed to a Committee of the Whole House.