§ Standing Order No. 44 having been dispensed with (pursuant to Resolution of 20th May):
§ Lord Stoddart of Swindon
My Lords, I do not wish to delay the House for very long but I really must make my objections known to the procedure which we are adopting at this point in time. We are supposed today to be debating the Bill on Third Reading, and following Third Reading we are to have a debate—or we should have a debate—on the Motion of whether the Bill do now pass. It is now 8.25 p.m. and we still have to discuss the Government's new clause on Report, to which I understand amendments have been tabled. I do not know how long the amendments will take, but it is likely that we shall not reach the Third Reading of this important Bill until 9.30 p.m. at the earliest.
On virtually every day this Bill has been debated the House has sat until the early hours of the morning. A great deal of hard work has been put into the Bill and we are now to discuss the Third Reading at 9.25 p.m. or thereafter. Frankly I believe this is a disgraceful abuse of the procedures of this House and it treats the Members of this House with utter contempt. I implore the Government—it is unfortunate that the Chief Whip is not here; I was not able to find him to give him notice that I wished to raise this point—to take a message to the Chief Whip and to tell him we consider the Members of this House are being treated with contempt. I hope the Minister will ask the Chief Whip to move for the closure of debate so that we can take the Third Reading of this Bill at a more appropriate time on a future date.
§ Viscount Ullswater
My Lords, I note carefully what the noble Lord, Lord Stoddart of Swindon, said. I can only say that we have discussed the process of what was going to happen today through the usual channels. I thought it would be for the convenience of the House if the new clause that the Government were moving should be considered in Committee rather than after Third Reading. That is why I made the proposal to go back into Committee to discuss the new clause. We had the opportunity to do so earlier today. However, I note what the noble Lord said. I believe it is still quite proper that we should continue with the process —as we have been doing today—and that we should now move on to Report.
§ Lord Wedderburn of Charlton
My Lords, is not the objection that my noble friend makes much stronger than the Minister allows? There are a number of noble Lords who are concerned about a number of provisions that will arise on Third Reading. There is not a horde of other noble Lords waiting at the gates to discuss the Government's new clause. Some of us have to plough on through this unfortunate new 83 clause of the Government at Third Reading. Surely there is a case for saying that the convenience of the majority who are interested in the other clauses of the Bill might be given some priority.
I hope that it will not be thought that those of us who have been concerned primarily with the new clause wish it to obstruct our noble friends who want to discuss the rest of the Bill. I want to make that absolutely clear and I am sure that my noble friends on the Front Bench agree.
The noble Viscount is right to say that certain matters were agreed through the usual channels, but surely we are sufficiently flexible and not bound by the hidebound rules of some agreement. We did not know how long the Committee stage would take. No one could tell that. I am sure that everyone would feel that we could be flexible enough to allow those who wish to proceed to the Third Reading of the other clauses to do so after dinner and for those of us who have to discuss the Report stage of the new clause to wait until after that discussion.
§ 8.30 p.m.
§ Viscount Ullswater
My Lords, I believe that the Bill has been very well discussed during the course of both Committee and Report stages. Whereas I shall deal with the amendments after Third Reading as diligently as I trust I dealt with those during the Committee and Report stages, I ask the House to accept the view that we should now move into Report stage on this particular clause and then deal with the amendments after Third Reading, I am afraid at a late hour this evening, but with due consideration for their importance in order to make progress with the Bill as we have discussed.
§ Report Received.
§ Lord McCarthy moved Amendment No. 1:
§ In the new clause Line 7, leave out ("his relationship with") and insert ("the terms and conditions of employment of")
§ The noble Lord said: My Lords, I do not want to go into any of the debates we had before we reached Report stage, except to say that we on this side of the House regret that we are in this position. We agreed to deal with the situation so that we could have a Committee stage on the new clause. Why we have to go straight from Committee stage to Report stage is a different issue. However, we are in Report stage and I shall move Amendment No. 1.
The amendment is intended to amend the critical subsection 3(a) of the new clause so that instead of referring to a change in the relationship it refers to terms and conditions of employment. We do so for several reasons. One of the major reasons is that, as we said in Committee—and we received no reassurance from the Government—the Government have drawn that extremely wide. It refers to an employer's intention:
to further a change in his relationship".
We do not know what kind of change in the relationship. We have said that almost anything could be said to be covered by that part of the clause.
§ The employer might introduce team briefings. He might say that introducing team briefings changes the relationship and he is now entitled to deny his employees collective bargaining. He could introduce total quality management audits. He could introduce semi-autonomous work groups. He could say, "I believe that my relationship with my employees would be significantly changed if they had a new suggestion scheme or if I had a management appraisal system". Almost anything could be put forward and said to be furthering a change in the relationship. The employer does not have to prove that it will produce a change in the relationship. As my noble friend said, he merely has to swear an affidavit and by the very submission of that as evidence everything which might be advanced under paragraph (b) is totally ruled out.
§ Then, as we know from what the noble Viscount said to me at the end of the Committee stage, a whole range of penalties can be imposed upon those who want to retain their union membership. They could be told that there will be no more wage increases for them. They could be told that there will be no more promotion for them. They could be told that they will be downgraded because they are no longer in the group which the employer wants to favour in order to produce a change in the relationship. All those things could be done.
§ We say that that could not in any way be said to be justified, or even related to the kind of decisions reached in the Court of Appeal. We believe that even at this late stage the Government ought to be prepared to accept a modification of paragraph (a) in order to place some limitation on what the employer would have to indicate in order to qualify for the easy way forward provided under the terms of the Bill. We say that the paragraph ought to be changed so that the employer has to show that he is dealing with the terms and conditions of employment.
§ That still leaves a very wide area which the employer could say that he wants to change. Most of the reasons that are advanced for such action in relation to individual contracts would be covered by reference to terms and conditions of employment. If the employer wanted to introduce a new system of appraisal that would probably be covered. If he wanted to move to a system of performance related pay he might have to show why that was necessary. That would be a fairly wide interpretation, although not as wide as the very wide interpretation that could be put on the clause as it stands. I beg to move.
§ Viscount Ullswater
My Lords, the amendment would mean that instead of there being evidence that the employer's purpose was,to further a change in his relationship with all or any class of his employees",there would have to be evidence that his purpose was to further a change in the terms and conditions of employment of all or any class of his employees.
In our view the amendment would narrow the scope of the purpose to which the tribunal would be directed to have regard. Thus, if an employer wished to bring about a change in his arrangements—for example, collective bargaining—which did not form part of the terms and conditions of employment of the 85 individual employees, then the new clause would not direct the tribunal to regard that as the employer's purpose. The Government's policy does not draw a distinction in that way. The important point is that the employer should be free to bring about a change in his organisational arrangements whether or not those are enshrined in individual terms and conditions of employment. I therefore ask the noble Lord to withdraw the amendment.
The noble Lord, Lord McCarthy, mentioned many other relationships, but then he did not really fail to address the point, which I believe is an important one, of the action which was taken by the employer. That is what we have to decide: what action was taken by the employer. I must not fall into the trap of referring to a test of reasonableness, but then there is the question of whether the action is action which no reasonable employer would take having regard to the purposes mentioned in paragraph (a).
We feel that the amendment narrows the scope of the clause, and with that brief reply I ask the noble Lord to withdraw the amendment.
§ Lord McCarthy
My Lords, I am not sure whether the noble Viscount said that I did fail or did not fail to address the point. I thought that he said that I did not fail but I think that he meant that I did fail.
The noble Viscount said what we expected him to say. He said that the employer might want to change all kinds of things which are not in the terms and conditions of employment. If they are collective bargaining aspects they will be in the terms and conditions of employment; but, of course, the Government are not interested in that. They want the widest possible area in which the employer can argue one way or another and avoid his responsibilities under the other part of the clause. We are not surprised by that, but that being the situation, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Lord Wedderburn of Charlton moved Amendment No. 2:
§ In the new clause, line 7, leave out ("his relationship with") and insert ("the employment relationship existing between him and")
§ The noble Lord said: My Lords, the amendment flows from the Government's rejection of the earlier amendment on the Marshalled List. The noble Viscount's objection to the previous amendment was that it would leave matters too narrow. On Report of course we have to debate the Bill within the limits of the Government's structure. If the employer were left with a purpose to validate his otherwise unlawful discrimination relating merely to terms and conditions of employment, that was too narrow. The amendment relates to a further problem. The Government's wording is still too wide. It is imprecise in a way which none of their examples suggest that they wish it to be.
§ The employer's relationship with all or some class of his employees—and "class" may be very small according to the definition of subsection (5)—may, especially in a small firm, relate to a large number of matters. We say that such matters should at least relate to employment. That is why we have chosen the phrase "employment relationship". That is wider than 86 the reference to terms and conditions. Nevertheless, the phrase excludes certain other matters. On the Government's suggestions and presentations to date one would have expected them to agree to it.
§ For example, let us suppose that the employer in a small firm has made loans to all the employees. He wants to call the loans in because he fears for his liquidity. He calls in the loans. However, he first calls in the loans from the trade union members. That would be flagrant discrimination. Alternatively, in some way, perhaps not so flagrantly, he prejudices the trade union members as against the other employees. I refer to the employer's relationship with those employees qua creditor and debtor. In my example the relationship is quite outside the range of employment. It is quite unreasonable for the employer to be able to give as justification of his discrimination some relationship which is outwith the employment relationship.
§ Noble Lords might argue that that example came within the employment relationship. However, let us consider the case of a small family firm in which the relatives of the wife who are employed in the firm have always been staunch trade union members but the relatives of the husband, who is in control, are not. For reasons which are intimately connected with his relationship with the wife and her side of the family, the husband makes decisions which are easily seen as prejudicial to her relatives who are employed. As the example stands, it would fit the Government's clause. As the provision stands, the employer can say, "I want to further a change in my relationship with a class of employees". Class is easily defined. The relationship is easily shown. The discrimination is easily shown. But at that point the drawbridge comes up. No one can refer to the Section 146 discrimination.
§ Although that may be an improbable example, good legislation always take account of the least probable example. Good legislation would have to provide for that situation. I imagine that we would all agree that that example should not fall within the range of what we debate. However, the Government's clause brings it within range. That suggested purpose is within a purpose to further changes in a relationship with a class of employees. Yet in a sense it has nothing directly to do with employment but only indirectly. One can think of hundreds of examples. Even in large companies one can think of good examples where the discrimination would not necessarily come within the employment relationship but within a relationship which one or more of the employing companies in a group had with a class of employees.
§ I appreciate that the hour is late. If the objection to our amendment is an infelicity of words, I shall be only too happy to join with the Minister in finding the right phrase. But we say that, having rejected all the other arguments and taking the Government's objectives for what they are, at the minimum there must be words to provide that there is evidence that the employer's purpose was to further a change in his employment relationship with all or any class of his employees. If the Government have not noticed how widely they have gone outside those employment 87 relationships, it is not too late for them to suggest that I withdraw the amendment but that they will bring forward a better form of words at Third Reading.
§ At the very minimum can we not avoid the obvious litigation which will occur in tribunals around the word "relationship"? "Relationship" invites litigation. It is too wide. I beg to move.
§ 8.45 p.m.
§ Viscount Ullswater
My Lords, I am grateful for the explanation given by the noble Lord; and the explanation that it seeks to lead on from the first amendment moved by the noble Lord, Lord McCarthy.
I was confused by the examples that the noble Lord gave. Those that he gave seemed to me to penalise members of the trade union only. When he spoke of loans to companies and pulling loans back, I believe that he tripped into a situation which might easily fall foul of the section. We do not seek to remove individual protection from trade union members. I have said that on numerous occasions from the Dispatch Box. The amendment that he proposes would limit the circumstances in which an employer might legitimately seek to alter his negotiating arrangements and limit the situation in which an employer's action would not be in breach of Section 146.
I have already explained the provision, drawing it down to a very narrow focus. The Court of Appeal found in a recognition situation that there are at least two relationships: the contractual employment relationship between the employer and the employee; and that between the employer and union which affects the relationship between employer and employee. An employer might legitimately seek to further a change in either or both. He need not be limited by changing his direct contractual relationship with his employee, as this amendment seeks to achieve.
The intention of the noble Lord is obviously to make the wording of the new clause as clear as possible on the face of the Bill. I understand that that is his interpretation. However, we shall have to agree that our interpretations are different. I therefore ask him to withdraw the amendment.
§ Lord Wedderburn of Charlton
My Lords, the record will show that, by refusing any part of my argument, the noble Viscount accepts that discrimination on trade union grounds which takes place during the course of a furtherance by the employer of a change in a family relationship within the firm, would be protected by the clause which the Government have introduced when the employer, as the noble Viscount rightly states, would otherwise fall foul of Section 146. The clause is a universal referee blowing a whistle in favour of one team only. The whistle blows whenever there is furtherance of a relationship be it family, creditor or debtor. Perhaps I did not choose the example well. I referred to a case of discrimination in a relationship between employer and employees as creditor and debtor which fell outside employment.
88 Not to accept that employment relationship is what is meant in the provision is quite remarkable. I have a shrewd suspicion that when the courts get their hands on the provision, they may imply that the clause probably means employment relationship. We shall then no doubt have the Government coming back with further legislation to put the clause right. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 3 and 4 not moved.]
§ Baroness Turner of Camden moved Amendment No. 5:
§ In the new clause, line 11, after ("shall") insert ("if the evidence shows that his principal purpose was not to discriminate against employees who were members of an independent trade union")
§ The noble Baroness said: My Lords, an amendment of the kind on the Order Paper in my name is absolutely necessary if the Bill is not to depart radically from the protection afforded by Section 146 of the 1992 Act or to breach ILO conventions. Again, we come back to the employer's purpose. If the employer's purpose is to deter individuals from joining or continuing to belong to a trade union, then his action should be caught by Section 146.
§ It seems fairly clear from the Court of Appeal judgment that the employers in both cases had as their purpose discouraging individuals from belonging to or continuing to belong to an independent trade union. In the Daily Mail case, when the employers de-recognised the union—and, incidentally, it is not in dispute here that the employers were, regrettably, entitled to do that—the employers, as we know, offered a 4.5 per cent. pay increase backdated to 1st October 1990 to all who signed their non-union contracts before 1st January 1990. I believe that that date was later extended. Those who did not sign because they still wanted some form of trade union representation did not receive the extra money. In the Daily Mail case that was what would have been their anticipated increase.
§ The Court of Appeal found that the ultimate purpose of the employers was to effect the wholly foreseeable consequence of deterring individual journalists from being union members. Unless an amendment of the kind I propose is accepted, the Government's new clause will legitimise actions which would otherwise be a breach of Section 146 of the 1992 Act. Is that the Government's purpose? If it is, they should say so. If that is the intention of the new clause, then it is in clear breach of ILO conventions which have already been quoted in the debate.
However, the Minister has already said that the Government do not want to remove protection from trade union members. He said so about 10 minutes ago in response to an amendment moved by my noble friend Lord Wedderburn. So the amendment seeks to define more precisely that that is what they may not do. It interpolates quite precisely:
if the evidence shows that his principal purpose was not to discriminate against employees who were members of an independent trade union".
If the Government mean what they say—and I am sure that the Minister means it; he has said it very often from the Dispatch Box—that they do not want
to remove protection from trade union members, then why does the Minister not accept the amendment which makes it clear that that will not be the purpose of the Bill? I beg to move.
§ Viscount Ullswater
My Lords, I am grateful to the noble Baroness for that explanation of the purpose of the amendment. It would provide that in a situation where a tribunal has evidence of two purposes for an employer's action and where the clause provides that it shall therefore consider the negotiating purpose to be the relevant purpose, it will only do so if there is not additional evidence of a principal purpose to discriminate against employees who are trade union members.
It is worth examining at this point exactly how the clause which the amendment seeks to amend would operate and why it has been constructed in the way it has. The clause has come into being to address a particular situation in which tribunals are in need of direction. To summarise, if they are offered evidence of two conflicting purposes for action by an employer which has led to a case being brought under Section 146, then they are now directed as to which of those they should regard as the purpose for which the action was taken.
That situation will only arise when two opposing purposes may, in retrospect, be attributed to the same act. It would have been possible when the clause was drafted to adopt the approach of identifying a principal purpose. In the event, though, we decided that the approach taken in the clause tabled by the Government offered a more satisfactory solution to this difficult problem.
To ask the tribunal to identify a principal purpose would in effect offer no progress from the current position where the law has become confused. The tribunal would have no guidance on how to determine the principal purpose. Our approach offers clear and firm guidance, leaving the tribunal free to concentrate on the facts of the case and the evidence put before it on which its decision is to be based.
§ Lord Wedderburn of Charlton
My Lords, if I may intervene, before the Minister passes from that point—
§ Lord Wedderburn of Charlton
My Lords, I am obliged to the noble Viscount for giving way. I understand that we can always give way to one another, even if we do not accept what we say. The argument which the noble Viscount has just put before us objects to the concept of the principal purpose. Does he apply the same reasoning to the long-established provision relating to dismissal? By it, the employer is liable for unfair dismissal if, for trade union or non-trade union reasons, as Section 152 puts it,if the reason for it (or, if more than one, the principal reason) was that the employee was … a member of … a union".90 That is a well known provision; the courts have not found great difficulty with it. Why is it so much more difficult with action short of dismissal than it is with dismissal?
§ Viscount Ullswater
My Lords, I was trying to explain why the Government sought to phrase the amendment in the way they did. I was trying to explain to the noble Baroness, Lady Turner, why we sought not to identify it in the way that the noble Lord has just suggested—that is, that it would be clearer for the tribunal to weigh up the evidence and then make its judgment on the basis of the amendment which we tabled and the new clause in the Bill.
I was about to say that, of course, there is the proviso at the end of subsection (3) of the reasonableness, that the action taken by the employer was such as no reasonable employer would take, having regard to the purpose mentioned in paragraph (a). We also touched on that.
I believe that the test for the evidence put before the tribunal should be clear. The amendment seeks to alter that and put in another proviso. I believe that the way in which we have formed the new clause is the right way and I ask the noble Baroness to withdraw her amendment.
§ Baroness Turner of Camden
My Lords, I am disappointed at that response from the Minister. I thought that we had managed to draft an amendment which perhaps would be acceptable in view of his statements on so many occasions that it was not the Government's intention to discriminate against or to support employers who discriminate against individuals who want to become or remain members of a union. As that was government policy, I thought that the Minister might be prepared to accept our definition of what one of the purposes would be.
I do not find acceptable his argument that leaving it as it is makes matters clearer for industrial tribunals. I should have thought that the reverse was the case. I find, as my noble friends have said, that the amendment as drafted is confusing. If it is the Government's intention that individuals should still have protection under Section 146, then it seems to me that it would be quite proper to accept the amendment. It identifies that purpose and proposes that the IT should take account of evidence of a purpose where it looked as though it discriminated against employees who were members of an independent trade union.
As for the qualification on reasonableness on the part of employers, it seems to me that that is open to doubt. What is reasonable in particular circumstances? An employer may say that it is reasonable to do what he is doing because the kind of advice he has been receiving from the Government for a long time has been that it is not a good idea to deal with unions and that he should bring collective bargaining to an end. Therefore, it may be regarded as reasonable that he should take steps in that direction.
I am not happy with what has been said by the Minister. I very much regret that this wording, which 91 it seems to me is very moderate, has not been accepted. But at this late hour I do not intend to press the amendment and I beg leave to withdraw it.
§ Amendment, by leave, withdrawn.
§ 9 p.m.
§ Lord Wedderburn of Charlton moved Amendment No. 6:
§ In the new clause, line 15, at end insert ("and to the contractual and other rights of the relevant employees.")
§ The noble Lord said: My Lords, this amendment follows from my noble friend's proposal in the last amendment. Like all the other amendments debated and moved from this side of the House tonight, they are new points which were not dealt with in Committee. This is a small point but it could make a lot of difference to a few individuals. On that ground alone I would have thought that the Government could at any rate have a look at it. It arises because the tribunal has to undertake a difficult enterprise in applying the new clause. There is nothing new in that. Tribunals and courts often have to engage in difficult interpretation. But this new section has within it—taking lines 14 and 15—the test that no reasonable employer would have taken the action having regard to the purpose mentioned in sub-paragraph (a).
As I suggested in Committee, it is not a test of reasonableness as such, and I took the Minister to agree with me. It is a test of whether the employer has acted with rationality in the sense that he is outside the band of reasonable employers as can be put before the court. In that respect there is a double difficulty for the tribunals. This point is very relevant to the amendment. In the Court of Appeal judgment Lord Justice Dillon cited the judgment of Lord Justice Mustill (as the noble and learned Lord was then) in the case of Campion v Hamworthy Engineering in 1987. He said:
Whether the decision of an industrial tribunal was "right" must be understood as meaning 'not so demonstrably wrong as to be beyond reason'".
He went on:
The appeal from the Industrial Tribunal … only lies on grounds of law".
So we have already in the structure a decision which the appellate court has to make, the employment appeal tribunal and after it the Court of Appeal and perhaps your Lordships' Judicial Committee, as to whether or not the tribunal was not so demonstrably wrong as to be beyond reason.
§ Under this clause, in order to make that assessment they have to decide whether that decision of the tribunal was not so demonstrably wrong on the issue of whether a reasonable employer could have taken that action having regard to the purpose mentioned in paragraph (a).
It is within that context that one seeks to find some reasonable balance of the factors that go into the tribunal, and possibly appellate, decision. It is my contention in this amendment that that balance is not properly struck on any possible ground when it ends with the words,
Having regard to the purpose mentioned in paragraph (a)".
This is so, first, because those words appear to limit the tribunal and then the appellate court only to the purpose mentioned in paragraph (a). Indeed, against my better wishes, I think that is the stronger interpretation of the clause. Even if we should take paragraph (a) as a dominant or primary interest, it surely cannot be right.
§ A purpose has to be judged with relation to all the interests that go into the questions that divide or bring together particular people. Surely a tribunal and appellate court ought to be able to have regard to the contractual and other rights of the relevant employees. Surely the Court of Appeal or the tribunal should be allowed to say: "We had regard to the purpose of Grade A type"—which is the one where he furthers a change in his relationship, as we now still have to have it: for all its uncertainties, one can hear the Court of Appeal saying, "Yes, that's there". But there are also these other rights of the employees, or non-contractual interests of the employees, and we think we ought to look at those in deciding—because what are we now deciding?—whether the tribunal was demonstrably wrong in deciding that a reasonable employer could not possibly take that decision—just to give an example of a case.
§ If it is limited to the employer's own purpose under paragraph (a), it is scarcely credible that he can ever lose. I know that some people say that that is the Government's intention—that the employer should never lose. Indeed, they have great weaponry in this clause at all points. But it surely cannot be the case that the tribunal is directed first to ignore the Section 146 discrimination—noble Lords will remember that that is the basis of it—ignore the fact that workers have been done down by reason of their trade union membership; take account of the employer's purpose, but do consider whether a reasonable employer could have taken that action, but, in deciding that last point, have regard only to his purpose—the particular employer's purpose, because that is what it says—under paragraph (a). It is completely circular. There is a wall of defence which is wholly circular around the employer. Surely even at this late point the Government will allow the interests of employees at least to be taken account of when the Government come to consider the balance which is demanded of the court. I beg to move.
§ Viscount Ullswater
My Lords, in determining whether an action falls within the scope of Section 146, a tribunal must, as the clause is currently drafted, consider whether the action in question was such as a reasonable employer would take with regard to the stated strategic purpose.
The amendment would provide in addition that the tribunal should decide whether the action was such as a reasonable employer would take with regard to the contractual and other rights of the relevant employees, as I believe was explained by the noble Lord, Lord Wedderburn.
I am afraid that I cannot accept the amendment. It is at least unnecessary and could in practice undermine what we are seeking to achieve in this provision. I shall tell the noble Lord why.
93 I believe it is unnecessary because the test that the tribunal will apply—the test of whether the action concerned was one that a reasonable employer might take having regard to the strategic purpose—takes account of all the circumstances that a reasonable employer could take into account. There is no need to spell out any of those. Tribunals are well used to that test and I am sure that they apply it all the time.
Additionally, I believe it is unacceptable because the situations with which our clause is designed to deal may relate precisely to an attempt to alter contractual rights.
It is therefore possible to undermine the purpose of the clause by the inclusion of that phrase. There is nothing in the clause that prevents an employee exercising his contractual rights under his contract of employment and bringing a case of breach of contract if appropriate. We believe that there is a sufficient test in the clause as drafted. The amendment seems designed to make that test even harder for the employer to pass. I believe that the amendment is unacceptable and I hope that the noble Lord will withdraw it.
§ Lord Wedderburn of Charlton
My Lords, I have not the slightest doubt that I shall beg leave to withdraw the amendment. As I suggested to the noble Viscount many hours ago, there is not much point in doing anything else with all of them. The idea that the amendment is unnecessary because an employer could consider the interests of the employees is the whole point of the amendment stood on its head. We suggest that somehow or other a court should be enabled to take account of the interests—not necessarily enforce them, but have regard to them. However, the noble Viscount says that it would undermine the Government's objectives. I understand that. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 7 not moved.]
§ Lord Wedderburn of Charlton moved Amendment No. 8:
In the new clause, line 20, at end insert—
("( ) In subsection (4) ("previous action" means action taken within the twelve months preceding the action taken against the complainant.")
§ The noble Lord said: My Lords, this is a very small amendment but I expect that it will receive the same treatment as before; that is, it will be considered either unnecessary or undesirable or both. Noble Lords will recall that in Committee a question was raised by my noble friend Lord McCarthy as to just what was meant by "previous action" in subsection (4). In the course of that debate the small point arose of whether the previous action, which it will be remembered carries the employer through to victory if his purpose can rest upon it and it is satisfactory under paragraph (a), need be recent or a long time ago. I do not remember that the Minister suggested any cut-off point. However, on looking at the matter, we thought that it should have some reasonable cut-off point.
§ Surely, it cannot be right that, on given facts, a previous action could satisfy the demands on the employer if it took place 15 years ago. There is no rule in the Government's amendment to say that it should 94 not do so. The facts might rarely occur. But would it be right if it happened 10 years ago? Does the noble Viscount believe that, in a case where workers are being penalised for what previously were thought to be their rights, an action five years ago is relevant? We thought that 12 months was as long as any reasonable employer (some employers will dislike this clause very much) ought not to put in evidence the subjective matter of his purpose.
§ Let us remember that that is what the evidence has to be about. It is a previous action but it speaks to purpose. After 12 months or, if the Government believe that it should be a little longer, after a reasonable period, memories wane. Sometimes people give evidence about what they did last week which turns out to be unlike what in fact happened. After 12 months or two years it is very difficult to speak of purpose, even in a situation such as that about which my noble friend Lord McCarthy spoke; namely, a change in various types of employment arrangements.
§ So in regard to "previous action" would it help to make for clarity, certainty and less uncertainty in litigation for a period to be put on previous action? It does not cure all the other uncertainties but it helps a little with people on the shop floor and the office floor who, for the most part, will be trying to work out this provision as a sensible arrangement. It will give them something to look at in terms of time. I beg to move.
§ Viscount Ullswater
My Lords, the amendment would provide that subsection (4), which provides that the purpose of a previous action can be deemed to be the purpose of a subsequent action, would only apply if the second action were taken within 12 months of the first. We believe that there is no need to impose an arbitrary cut-off point such as the one proposed. Businesses differ and circumstances differ. I believe that it would be presumptuous for this House to impose arbitrary limits on the relationship of cause and effect between one action and another such as this. Besides, we must not lose sight of the fact that any action brought under Section 146 where there is a disputed purpose will be subject to the "reasonable employer" test.
In his attempt to curry favour for his amendment, the noble Lord oversteps the mark. He suggests that the tribunal would not consider the evidence with that test of reasonableness or look at it as how a reasonable employer would behave. I believe, unlike the noble Lord, that tribunals are perfectly capable of dealing with these matters.
The tribunals will have access to the full facts of the case. They will be able to decide whether any course of action was such that a reasonable employer might take. I believe that it does not need this arbitrary cut-off point. The facts will speak for themselves. I hope therefore that the noble Lord will withdraw his amendment.
§ Lord Wedderburn of Charlton
My Lords, the tribunals will make what they can of that. They will be in much greater difficulty in not having guidance on the question of when previous actions reach a cut-off point. After all, people cannot bring an action under the sections when three months have passed. The 95 employee loses his rights after three months. But the employer can go on adding to his evidence as to purpose from facts 15 or 20 years old.
I appreciate that the noble Viscount may think that that case is unusual. But it is part of the law that if a tribunal says, "We are not going to look at the previous action 20 years ago because we do not think it is relevant to the matter", the case would immediately go to appeal and the judgment would be upset. There is no question of tribunals having the right to put aside the clause as it is drafted. Ministers often believe that they can get away from bad drafting by saying that the tribunals will deal with it. The tribunals cannot deal with it. The clause is as drafted.
The noble Viscount said that it was presumptuous for this House to engage in debate on such small matters. I should have thought that it was presumptuous of a government that puts forward this kind of clause to make that point. However, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 9.15 p.m.
§ Lord McCarthy moved Amendment No. 9:
§ In the new clause, line 25, after ("work") insert ("but does not include a group of employees categorised or described primarily by reference to their membership or non-membership of an independent trade union")
§ The noble Lord said: My Lords, we have discovered a new rejection—"presumptuous". I have counted five rejections. We are nearing the touchstone of seven degrees of rejection. "Presumptuous" may apply to Amendment No. 9; I sincerely hope not.
§ It may be said that the amendment is untimely. It could be argued, and perhaps the noble Viscount will argue, that Amendment No. 9 should have been moved at the same time as Amendment No. 5. It has a similar intention to Amendment No. 5. However, I am glad that it was not moved at the same time because it escapes most of the objections trotted out by the noble Viscount to deal with the points made by my noble friend Lady Turner.
§ The main objection to Amendment No. 5 was that it dragged in the question of principal purpose. Once one allows tribunals to decide the principal purposes, they may conceivably decide against the employer and, of course, the Government do not want that. That is therefore ruled out. One cannot say that of Amendment No. 9.
Amendment No. 9 relates to subsection (5) of the new clause, which defines "class". It states,
'class', in relation to an employer and his employees, means those employed at a particular place of work, those employees of a particular grade, category or description or those of a particular grade, category or description employed at a particular place of work".
Amendment No. 9 seeks to say that such a class,
does not include a group of employees categorised or described primarily by reference to their membership or non-membership of an independent trade union".
It is not an amendment conceived in the air. One can readily think of an employer who wanted to introduce certain benefits and confine them to non-unionists. He may have tried to do that in relation to individual agreements and contracts but a few
people remain in the union. He therefore offers them star status or five weeks' holiday if they leave the union—benefits which will be given to non-unionists. He may say that those in a specific part of the drawing office or on a specific construction site will receive the benefits.
§ The union or the individuals may say, "It is strange. He has done this several times and each time the group includes people in the membership of a specific trade union"—it may be a union that the employer does not like. They may go on to say, "It is funny that all these benefits are being offered to groups who happen coincidentally entirely to consist of non-unionists and are being denied to the groups which entirely consist of trade unionists in a specific union".
§ I know that if one leaves the clause as it is, there is little chance that the unions will succeed with a defence of this kind—the 5 per cent. is always worth more than the 95 per cent. Nevertheless, it is a defence which they may put forward. It is something which will give them the possibility of making progress and is nothing to do with "principal purpose". I believe therefore that the noble Viscount should accept the amendment. I beg to move.
§ Viscount Ullswater
My Lords, I will give the noble Lord, Lord McCarthy, another form of rejection. I believe this to be a wrecking amendment. That is another word that he can add to his list of rejections. To explain why we take that view, an employer may wish to alter his bargaining arrangements and, to achieve that effect, offer incentives to encourage employees to accept a new arrangement under which a certain trade union does not negotiate terms on their behalf. If he wishes to do that, in some circumstances he may well have to identify the group of employees in making the offer by reference to membership of that trade union. There is no reason why we should seek to prevent that. The employer should be free to make the offer and the employee should be free to decide whether or not to accept it.
I believe that we define perfectly adequately in the new clause what may constitute a class. The amendment introduces a new concept into that definition which will certainly undermine the purpose of the provision. Therefore, I ask the noble Lord to withdraw it.
§ Lord Wedderburn of Charlton
My Lords, I wish to ensure that I have correctly understood the Minister's defence. When an employer finds it necessary, much though he may not wish it, to discriminate against a class of trade union members he may do so. Quite clearly, when he does so it is a breach of Section 146. I hope that I do not misunderstand the Minister. When he does so his very act of discrimination against the class is also an act which furthers a change in relationship to that class at work and therefore by itself justifies the breach under Section 146. Is it correct to say that all that the employer ever has to do is discriminate in respect of a class of trade union members in changing something in and about the area of whatever the relationship is? That is enough because he defends himself by doing it; the act of contravention is the act of defence. Is that right?
§ Viscount Ullswater
My Lords, I do not believe that I used the words "discriminate against". The noble Lord is trying to put words into my mouth. What the new clause now seeks to do is further a change in his relationship. That is not discriminating against a person. What we are trying to do is to determine who may be a member of a class. We say that the wording of the Bill is drawn sufficiently widely to make certain that if the employer seeks to change his relationship with a group or class of employee he can do so. I was not talking about "discriminating against" but about seeking to further a change in his relationship.
§ Lord McCarthy
My Lords, we have to believe in something. I know that tomorrow the Official Report will record precisely what the noble Viscount said. But I should like to ask him again what he said. He said that he did not say "discriminate". What he was suggesting was that our amendment was not needed. Our amendment is not a wrecking amendment; it is a "blowing the gaff" or "out of the bag" amendment. I believe that we have had a "blowing the gaff" answer. I want to know the word used because I have got only the intention. I believe the Minister said that if the employer's purpose was to get rid of members of a particular union—one might not call that discrimination but in some way it would be a move against members of a particular trade union—he was perfectly entitled to classify them as a class. Because he classified them as a class he would be perfectly entitled to say that he wanted to change his relationship with that class. Once he did that he would come under (3) (a) and (3) (b) could not touch him. In effect, was that not what the Minister said? If not, what did he say?
§ Viscount Ullswater
My Lords, again with the leave of the House, the words that I used are these. An employer may, as we have said, wish to alter his bargaining arrangements. He may, to help achieve that effect, offer incentives to encourage employees to accept a new arrangement where a certain trade union does not negotiate terms on their behalf. If he wishes to do this he may well, in some circumstances, have to identify that group of employees. That is what we are saying. He may have to identify in order to make certain that the tribunal knows that he is seeking to do it to a class.
§ Lord Wedderburn of Charlton
My Lords, before the Minister finally resumes his seat, I should like to associate myself with the words that he has just used. Of course he did not say the word "discriminate". But what he has just said on the last amendment on Report shows how useful Report and Committee really are. On the last amendment on Report, we come to it. We agree that where the employer wishes to give incentives to employees, which would obviously further a change in relationships, he may well wish to identify among them a class by reference to their membership of a trade union—a given trade union—and not apply those offers to them. I used the word "discriminate" but it does not really matter. That fact complex is, at the moment as the law stands, a breach of Section 146. And not only because the Court of Appeal said so; indeed, it is way behind the Court of 98 Appeal. But after the Court of Appeal it is absolutely clear. If that is so then when the Act comes into force with the clause, as it obviously will, the employer, by doing precisely what the Minister has described, would commit an action which, as the law stands now and then, would be a breach of Section 146. That is clear. But he would also by the same action commit himself to a purpose which would change the relationships among the employees as to the incentives and with primary reference to that class. The very same action is therefore a contravention of Section 146 and a defence under the clause as it would stand with the amendments. Therefore, what we have been debating, it now turns out, is very easily cured by any employer who wishes to discriminate against trade union members.
§ Viscount Ullswater
My Lords, again with the leave of the House, I feel that this is a rather important point. I do not believe that what the noble Lord has said is in any way how I sought to answer the noble Lord, Lord McCarthy. What he is doing is trying to put words into my mouth in identifying what I was suggesting was to define a class by a particular trade union —nothing to do with trade union membership or not. The noble Lord, Lord McCarthy, may laugh but what he is seeking to do is to put words into my mouth which I did not use. I should like to go on the record that what I was trying to do was to define a class and the words that I used I chose carefully. It was certainly not to discriminate against a trade unionist, either individually or in that connection collectively.
§ Lord Wedderburn of Charlton
My Lords, a personal explanation is allowed. I did not wish to, and I did not, put words into the Minister's mouth. What I was doing was taking his fact situation and applying it to the clause, which he has not done.
§ Lord McCarthy
My Lords, I think that we should end now because the noble Viscount has gone so far under the water that if he stops there any longer he will bob up. I do not particularly want him to bob up. He is quite a long way down. I hope that the Trade Union Congress and our colleagues in another place will read with great care what the noble Viscount has said tonight because I think that he has given the game away. This was the blowing the gaff, out of the bag amendment. I was very pleased that we moved it and now I beg leave to withdraw it.
§ Amendment, by leave, withdrawn.
§ 9.30 p.m.
§ Baroness Turner of Camden moved Amendment No. 10:
§ Leave out Clause (Action short of dismissal: non-infringing actions)
§ The noble Baroness said: My Lords, I cannot let this clause leave the House on Report without making some comments for the record, which I do in support of Amendment No. 10. First, I should like to say a word or two about the procedures followed. I say to the noble Viscount that I understand that these were agreed through the usual channels. I am not complaining about that. But it is clear that many noble Lords are very dissatisfied with the way in which 99 this particular clause has been tackled. They feel, with some justification, that inadequate time has been provided. Clearly this is an important issue, but there has been little time for consultation with bodies outside this House and also for your Lordships, who have a particular interest in this subject, to study what the amendment is about.
§ The Court of Appeal decision has become available only very recently and as the noble Lord, Lord Campbell of Alloway, said earlier this afternoon, he and others have had very little time in which to study the important issues involved. Moreover, those of your Lordships who have put down amendments in the normal way for debate at Third Reading of this Bill are having to have that Third Reading put back to a time which is quite impossible. I am complaining, first, about the procedures which have been followed, bearing in mind and accepting fully that our Front Bench has some responsibility because the matter was discussed through the normal channels. However, it has turned out not to have been a very satisfactory procedure.
§ Secondly, I question the need for haste in this matter. As we have said repeatedly from this side of the House, the legislation in question has been in existence since 1975. Cases have been going through the courts which were decided very much in the terms of the recent Court of Appeal case. It seems to me that the Government decided that they did not like the Court of Appeal decision, but they did like the EAT decision. Therefore, at this very late stage of this important Bill we have an attempt to write into the legislation support for the EAT decision as against the Court of Appeal decision and the precedents on which its decision was based.
§ There has been the failure of the Government throughout the debate at both Committee and Report stages to accept even minor amendments submitted on this side of the House which were intended to make the purpose of the new legislation clearer. We have tried the kind of amendment to comply with what the Government have said; that they do not intend there to be discrimination against trade union membership. We have tried to clarify what that will mean in practice. We have had very unsatisfactory responses from the Government.
§ So we are left with an extraordinarily abstruse piece of wording in this legislation with which industrial tribunals and EATs will find great difficulty when they come to interpret it. Furthermore, as a number of noble Lords have already said, this legislation cuts deeply into the heart of Section 146 of the 1992 Act. That section of legislation was intended, and does, comply with the international obligations which the UK Government have accepted for generations. There is no indication—apart from the Minister's statement that there has been some internal legal advice—that there has been independent legal advice sought as to whether or not this clause breaches either ILO conventions, international obligations or the sections of the Treaty of Rome quoted by the noble Earl, Lord Russell.
§ Furthermore, this is another part of the Bill which 100 tilts the balance decisively against employees and in favour of employers. It does so in a most blatant and obvious way. It legitimises actions by employers for the future which will enable them to discriminate against trade union members. The Minister says that there is no intention to discriminate against trade union members; that the aim is simply to ensure that an employer can alter his industrial relations arrangements and make different arrangements with his employees. But the amendments which we proposed, and which would have meant that the employer would have had to negotiate changes in the arrangements, have been rejected by the Government. They say that employers should not have to do that. They should be able to make such changes by diktat without consulting anybody, certainly not their employees. That is totally unacceptable.
§ For those reasons I very much regret that we have been unable, either at Committee or Report stages, to make any impact whatever on the Government's thinking with the amendments which have been so ably argued this evening by my two noble friends Lord McCarthy and Lord Wedderburn. I very much regret that the Bill leaves this Report stage with the clause in it. I beg to move.
§ Lord Mottistone
My Lords, before my noble friend speaks I should like to say two things in answer to the noble Baroness. First, the amendment—I said this earlier—does no more than restate the employer's right to seek to order his relations with his staff in the way considered most appropriate for the organisation concerned. Secondly, I congratulate my noble friend on resisting the arguments, put skilfully as always by the noble Lords, Lord Wedderburn and Lord McCarthy, and the noble Baroness, Lady Turner, which were designed to exploit the amendment to the best advantage that they possibly could and to persuade him to say something he might later regret. I am happy to say that, having listened carefully to the debate, I am pretty certain that my noble friend did not put one foot wrong. He must be congratulated by all your Lordships, including those who strove to trip him up.
§ Viscount Ullswater
My Lords, we have now debated further amendments tabled by noble Lords opposite on Report. I have been unable to accept any of them, but they have offered the opportunity for further debate, and I hope and believe that the debate has provided an opportunity for me to explain further the intentions of the legislation and to offer reassurances as to the application of the new clause. I am grateful to my noble friend, not just for his words of support but for the support that he has given to the new clause. He and I understand the purpose of the clause. I understand also the reasons why noble Lords opposite seek to oppose it.
We believe that the new clause will play an important part in clarifying the conduct of industrial relations. Individual trade union members will continue to be protected in law. Employers will not be unreasonably restricted in conducting their business. I therefore commend the clause to the House and resist Amendment No. 10.
§ Amendment, by leave, withdrawn.
§ 9.38 p.m.
§ Clause 13 [Right not to be excluded or expelled]:
§ Lord McCarthy moved Amendment No. 1:
§ Page 24, line 9, at end insert ("and the union has indicated that it is not able, or is no longer able, to act on his behalf.").
§ The noble Lord said: My Lords, we now return to the Bill as it left the House the last time we dealt with it. We deal with Clause 13, and we return to the notorious Bridlington clause. The amendment adds to the number of justified exclusions and expulsions on the face of the Bill, so that if a union has indicated that it is unable, or no longer able, to act on behalf of a member or a would-be member, that would, in effect, be a justified exclusion or expulsion. That would mean that unions could put a lawful rule into their rule book giving them the right to operate an enforceable membership requirement with some justification if they could show, as it were, that they were unable, or no longer able, to act on behalf of a member or a group of members or would-be members. It will be said, and we see no reason to deny it, that that would cover many of the so-called Bridlington decisions, although it would not necessarily cover them all.
§ The Government have rejected all our amendments designed to assist the continued operation of the dispute principles of the TUC. We do not therefore expect anything new from them tonight. The only new aspect is likely to be a different form of rejection which the Minister will find. He appears to be finding new forms of rejection at this stage of the Bill.
§ We have tabled the amendment because we wish to return to the Bridlington issue and also because at this stage we wish to point out that what the Government intend to do in Clause 13 is far wider than anything related to the Bridlington Rules, which relate largely to exclusions. In practice the Bridlington Rules are largely operated when unions go to the TUC because one union says that its members have been poached and recruited by another union. In effect, it is trying to get the union to agree that such recruitment is contrary to the Bridlington Rules.
§ The provisions in Clause 13 go much wider. The clause relates not only to exclusions but to entry and admissions. For the first time the Government are regulating in a narrow and precise way who should be allowed to join trade unions, the type of people who should be allowed to join which trade unions and the circumstances under which trade unions are allowed to say that they do not wish to recruit particular members of the workforce. During our debates we have said repeatedly that that is in sharp contrast with the way in which the Government rightly continue to allow voluntary associations and powerful, professional associations—for instance, veterinary surgeons, chartered surveyors, the Inns of Court, political parties, which may or may not operate quasi closed-shop practices, masonic lodges, the Institute of 102 Directors and so forth—not to have their entry qualifications regulated in the way that trade unions are having theirs regulated.
§ That is the central thrust of much of the Bill about which we are protesting as it applies to Clause 13. I shall argue subsequently that seven degrees of uniqueness are applied to trade unions under the Bill. There are seven ways in which trade unions are said to be unique; seven ways in which their rights and privileges must be undermined, altered and narrowed. One of the central and in some ways most fundamental of those restrictions lies on entry. That is undoubtedly contrary to ILO conventions and to all kinds of international standards. So far as I am aware, nothing remotely of the kind exists in any western country with developed trade unions. The Government are taking this action without any real justification except a general appeal to the uniqueness of British trade unions.
§ Even at this late stage will the Minister tell the House what it is about British trade unions that requires entry to them to be regulated by statute in this way? It will be no good telling us yet again, "Oh, they are different. They are not the same as masonic lodges, institutes, professional associations or clubs. They are different". The issue in dispute is why their difference, such as it is, means that it can be dealt with only by the Government regulating and restricting their autonomy in this way. I beg to move.
§ 9.45 p.m.
§ Viscount Ullswater
My Lords, I have to say that I was rather mystified by this amendment because its effect is to place an additional and unnecessary hurdle in the way of a union which wishes to legitimately exclude an individual from membership.
Clause 13 gives individuals the right to join the union of their choice, with certain sensible exceptions. The amendment would have the effect that when relying on one of those legitimate exemptions in order to exclude an individual from membership—namely, that the union need not accept as members those who have no trade, occupation, or qualification in common with their membership—the union would in addition have to show that it had indicated to that member that it was not able to act on his behalf. Why put this extra legal barrier in the union's way? The provision protects unions from having to accept inappropriate individuals into membership. There is no reason in the context of the clause why the union should additionally have a statutory duty to indicate that it is unable to act on behalf of the individual, whatever that may be taken to mean.
However, I believe that the noble Lord indicated that the wording of the amendment was intended to stand alone, as an additional legitimate reason for exclusion under new Section 174. If that was to be the case, then noble Lords must realise that it would completely undermine the clause and would therefore be wholly unacceptable to the Government. Whatever its intention, such an amendment would have the effect that a union could exclude individuals on virtually any ground it chose, as long as it first said that it did not consider itself able to act for them.
103 Unions could, for example, act on arrangements such as the Bridlington principles with impunity. Union members' wishes could once again count for little or nothing. We cannot accept that.
The noble Lord asked me why it should not be for unions to decide what they have in their rules and why should the Government interfere. Union rules are certainly a matter for the unions themselves. However, those rules must not have the effect of threatening the legitimate freedoms and rights of trade union members. We have seen how the Bridlington principles take no account of the wishes of individuals, but simply bolster existing spheres of influence and avoid legitimate competition. And we have seen how individuals may be denied membership of a trade union which they may have every good reason for wishing to join because of such rules. The provision will ensure people are not prevented from joining the union of their choice except on reasonable grounds.
As I have said, we have already made provision for the legitimate reasons for which a union may wish to exclude an individual. This amendment adds nothing that is useful or relevant to the purposes of the clause, and I hope that the noble Lord will withdraw it.
§ Lord McCarthy
My Lords, the noble Viscount has not given me any answers. The Minister is quite right. We saw the amendment as adding to Section 174(2) (a) so that in future a union would have a perfectly lawful rule that it could exclude or not recruit individuals if it had indicated that it was unable, or was no longer able to act on their behalf. However, if the noble Viscount wished to smile on the amendment and wanted to say that it would be more effective if it stood on its own, that could be achieved even at this late stage. Therefore, the drafting of the amendment is not the critical issue.
The critical issue is that the noble Viscount does not like the amendment. We know that he does not like it. However, he has not given us any reasons. He has given the same general statements about unions being different from other organisations. We are still not told first, what that difference is and secondly, why that difference is of such a kind that it justifies the imposition of limitations on unions.
I can think of two reasons. The Minister could be saying that unions are so corrupt and so appalling in their internal administration that they must be regulated in that way. But he does not say that. If he did, we should ask him about the institutions which the Government have established to look into such matters which have no work to do. We should ask him about the CROTUM, if unions are so corrupt.
The Minister could be saying that not only are the unions corrupt, although he has no evidence with him this evening, but that they are also so dreadfully powerful that the state must pronounce upon their entry requirements. He does not say that. Indeed, in another place at other times government Ministers are always telling us how they have squashed trade unions and reduced them to size. Therefore, the Minister cannot say that they are corrupt; he does not say that.
104 He cannot say that they are all-powerful; he does not say that. However, he continues to stick to his arguments. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 17 [Notice of ballot and sample voting paper for employers]:
§ Lord Wedderburn of Charlton: moved Amendment No. 2:
§ Page 31, line 9, leave out ("falls") and insert ("and section 231A fall").
The noble Lord said: My Lords, in moving the amendment I shall speak also to Amendment No. 3 and to the last amendment on the list, Amendment No. 28—the end is in sight. I do not do so because of the kind of reasons put forward by my noble friend Lord McCarthy, although they are connected with the matter. I support him totally, but I was not able to agree with the form of the last amendment. The Minister must take account of the fact that it seems to us that we are up against an immovable "no", whereas we vary a little in the matters that we put before him. We are not just a block; we are a set of splinters each of which is very sensitive to the argument.
I turn now to Amendments Nos. 2 and 3 which deal with a technical argument. I genuinely seek to have the Bill in some sensible form, not against but within the Government's policies; at least, I hope that my arguments will be understood as falling generally within them. Their policy is that all industrial action requires the support of a ballot which must now be a postal ballot. However, certain requirements will differ according to who appears in the court room to complain. In other words, the situation that noble Lords should posit is that of a complainant—or plaintiff in the High Court—and a union defendant or respondent where the union is saying that the action was supported by a ballot.
There is a whole series of requirements which I shall call the "ordinary requirements" for the ballot; that is, there must be a ballot taken of those entitled to vote, it must be conducted in secret, and so on. It would weary noble Lords if I were to read out those requirements. But I suggest that the ordinary requirements are very clearly found. The best place to find them is in paragraph 47 of Schedule 8 where they are set out in relation to a member of the union who, since 1988, has been able to bring an action whereby he complains that the industrial action to be called by the union does not have the support of a ballot. Therefore, the member, as the complainant, requires the ordinary hurdles to be surmounted.
However, if we go to the other end of the spectrum as set out in the Bill, there is now a superior set of hurdles that must be surmounted by the union as regards the employer. I cite the words contained in Clauses 17 and 20 in respect of Sections 226A and 234A of the 1992 Act, to found my argument on a clear source in the Bill. Those are the clauses and sections which require the need for the union to prove and show, as regards the employer—that is, the employer of anyone who is an employee who may be "induced to take part" in the industrial action—what I tend to call the "extra requirements". I make no point against them in that respect. First, there is the 105 requirement that notice must be given to the employer at least seven days before stating that there is to be a ballot. Secondly, the employer must be shown at least three days before a specimen ballot paper. Thirdly, within a reasonable time the union must notify the employer of the result of the ballot. Finally, not less than seven days before the action, a notice must be given to the employer concerning who is to take part, and so on. Those are the four extra hurdles. They appear to make the position difficult, but where the union is in court and it can mention the ordinary requirements, it will not succeed against the employer unless it can prove that it has surmounted the four extra hurdles; that is, the notice, the specimen ballot paper and the other hurdles.
In the past I have suggested that this was rather absurd. I have consulted with a number of people who have been more directly in the firing line on this matter in the past few days than was the case previously. In the past 10 days a number of solicitors have contacted me. They were mostly solicitors who advise trade unions. They have said this is an absurd procedure and that they will always advise unions to go through the four extra hurdles as they do not know who the plaintiff will be. They have no idea whether the plaintiff will be the employer in the High Court or the member bringing a right of action under Section 62.
In the past I have said that this division of requirements according to who pops up as plaintiff is rather a crazy way of doing things. The Government might just as well have said, "These are the requirements and you must observe them no matter who the plaintiff is". When I raised this matter before, the noble Viscount kindly wrote to me and confirmed that my understanding so far was correct. He suggested that that was what the Government wanted. In the short debate we had on this matter, the issue was left there. Therefore I must leave it there. I am not trying to reopen that debate. This is a somewhat technical matter and I apologise to your Lordships if I have taken a long time to explain it. However, I have avoided referring to some of my footnotes.
Previously a point has arisen—it arises now also —as to the third party plaintiff; that is to say, the plaintiff who is not the employer party in the dispute and is not a member of the union but who says, "You did not properly have the support of a ballot as far as I am concerned and therefore I can bring an action on the basis of an arguable tort". An action in tort in the High Court will lie. One would have thought that the union could then say, "Oh, but we have satisfied the ordinary hurdles. You are not the employer". I quite see that the purpose of the Bill is to give the employer extra rights. However, the union could say, "You are not the employer. We have held a ballot. All the people voting were entitled to vote and it was a secret ballot". The union could say, "We do not have to prove to you that we have given these notices to the employer because that is a requirement of the employer". That provision is stated quite clearly in Sections 226A and 234A of the Act.
So far, the union would be correct. However, if one looks at the sections I have referred to in Amendments Nos. 2 and 3, and if one looks in particular at Schedule 106 8 on page 114 of the Bill, one will see that there is one section which requires the support of a ballot which is not contained in the ordinary requirements. Up to now, one would have thought of that as falling only within the requirements as respects the employer. That provision falls within Section 231A.
Section 231A requires the union to notify the employer, or perhaps more accurately, the employers —this applies to any employer whose employees are to be induced in the action —of the result of the ballot. I do not suppose trade unions would have any particular objection to doing that. At the point of the ballot the difficulties are not at their most extreme. However, this is a requirement that could easily trip up the unions.
If there are to be dual requirements according to plaintiff, I urge the Government to reconsider this matter, even at this late stage and on the basis of this technicality which is the technical apparatus they have insisted upon; that is, a division of requirements between those of employers and those of others. The third party plaintiff may be a supplier. There are many examples in law reports of third party plaintiffs who may be customers or suppliers. It is not quite "Disgusted of Tunbridge Wells" but DOT may have a contractual right which has been infringed by the action. The union will say, "We have had a ballot" but DOT will say, "No you have not, because you have not satisfied Section 231A and told the employers—not DOT—what the result of the ballot was". That is a highly technical point which ought not to remain in the Bill in its present form.
I have genuinely tried to follow the debate so far and the Government's own intention. In moving the amendments I suggest that if there are to be two categories—employer and the rest—let there be two categories. However, surely there should not be a third category for which the ordinary requirements are, quite illogically, joined by the requirement to give the result of a ballot to an employer who is not even the plaintiff who appears in court.
I hope that the Government are at least able to consider the amendment at this late stage. If not, it will all come out in litigation. I beg to move.
§ 10 p.m.
§ Viscount Ullswater
My Lords, I am grateful to the noble Lord for explaining the background to Amendments Nos. 2, 3 and 28. I recognise that they touch on themes similar to those considered in connection with Amendment No. 19, which the noble Lord moved at Report stage.
I perceive, however, that the intended changes to the provisions of Section 226 of the 1992 Act are both more precise than, and somewhat different from, those which were proposed by the noble Lord at Report stage. In summary, they would mean that if a union failed to satisfy the requirements of the new Section 231A—that is to say, it did not take steps to supply an employer with details of the ballot result—it would lose the protection of the statutory immunities only in respect of proceedings brought by the particular employer denied those details.
107 The requirements of the new Section 231A will not mean that a union must necessarily tell a particular employer the result of votes cast by that employer's particular employees. That would be the case if the ballot was a ballot of a single employer's workers but not if it was a multi-employer ballot. There is, of course, only one ballot result in either case. Moreover, to satisfy the requirements of Section 231A, the union needs to do no more than provide the same details of the ballot result to all employers whose workers took part in the ballot as it is already required to supply to its own members.
I can confirm that the provisions in the Bill will mean that, if any employer whose workers are given entitlement to vote in an industrial action ballot is denied the ballot result details which are to be provided to such employers under Section 231A, the ballot as a whole will not be capable of affording protection to the union against proceedings in tort. Therefore, any employer could bring proceedings against the union on the basis that the union had failed to provide the ballot result details to another employer.
I would accept that such proceedings would be rather unlikely. However, it is appropriate to apply the new ballot result detail requirements in this way, for reasons which I shall explain.
The ballot result details—in sharp contrast with the proposed new requirements for the provision of certain notices to employers—relate to the industrial action ballot as a whole. Such a ballot might well involve employees of more than one employer. So would the details which will, in future, have to be supplied to each employer.
I should add that when—by virtue of this Bill—industrial action ballots have to be conducted by fully postal voting it would not really be practicable for an employer to be informed of the result of the ballot among his own particular employees where they had voted as part of a multi-employer ballot.
Moreover, the current provisions of Section 231 of the 1992 Act apply in exactly the same way. Those provisions have been part of the law since 1984. They mean that, to obtain the protection of the law for its call for industrial action, a union must take steps to supply ballot result details to its members.
It is open to an employer to bring proceedings against the unlawful organisation of industrial action because a union has failed to carry out the steps which the present law requires in respect of the provision of ballot result details to members. It is not relevant, for these purposes, whether the members denied those details are employed by that particular employer.
We believe that it is right to adopt the same approach with the new requirements to notify ballot result details to employers.
I appreciate that the noble Lord is concerned to determine who can bring which particular proceedings, and on what particular grounds. There is, of course, a simple enough answer to any union which wants to know what it must do to avoid risk of such 108 challenges. The answer is that it must comply with all the requirements of the law, and that if it does so it will not be at risk of a court order against it.
To spell this out, a union will need to provide all relevant employers with the notice required to satisfy the requirements of new Section 226A of the 1992 Act. Following the ballot, it will also have to take steps to provide relevant employers with details of the ballot result. As a matter of practice, of course, satisfaction of the second of these two elements will mean providing the very same ballot result details as the union would already provide to its own members.
It is quite correct that a union's failure to take the steps to provide either notice or ballot result details to an employer could provide the grounds for proceedings under the new citizen's right. However, that is quite justifiable. Considered from the perspective of the individual bringing such proceedings, what has happened in such a case? A union is organising industrial action which would deprive the individual of goods or services. The union's call for action is, however, actionable in tort because it does not satisfy the requirements to afford it the protection of the immunity. Therefore the union is acting unlawfully and the individual's deprivation stems from that act. In such circumstances it would be quite wrong to deny the individual the protection which the citizen's right is designed to secure.
The noble Lord seems to continue to view matters from a slightly mistaken perspective. He asks: what will a union have to do in order to protect itself from proceedings which might otherwise be brought by anybody? That may be a proper question from someone advising a union. However, it is not the right basis on which to construct an appropriate system of law. For that purpose it is right for the Government to ask themselves, as we have done, who should be able to bring proceedings for a failure to comply with a specific requirement? That is important because it will remain up to individuals to decide whether or not they wish to make use of the law to protect their interests as they see them in any given situation.
I understand the noble Lord's anxiety. However, I seek to allay his fears. I hope that he will withdraw the amendment.
§ Lord Wedderburn of Charlton
My Lords, I understand what the Minister says. Indeed, he would not put words in my mouth. But I did not address the issue of whether the employer would know the result of his own employee's vote. Nor did I address the issue of what he calls the citizen's remedy under Clause 21. I was concerned only with Clauses 17 to 20.
I predicted the Minister might say that there was a simple enough answer; that the trade unions need not worry about all the different hurdles because they must comply with the law. I know that the Minister will not apply what I say to himself personally. It applies to the Bill. When one states that one must comply with the law, and the law does not apply equally to equal cases or set out duties and liabilities clearly, if at all, there is a usurpation of the normal rule of law, accepting the different ways in which people use that phrase.
109 I believe that the Government are saying, as practitioners such as trade union advisers, employers' advisers and many people interested in the legislation will say, that a union which holds a ballot, organising industrial action, must go through all the hurdles including the big four—notice to the employer; declaration of results, and so on. The noble Viscount nods his head. But one should not do that in a Bill which pretends, as it does, that the big four hurdles apply only to employers. Clause 17(1) (b) refers to,Where section 226A falls to be complied with in relation to the person's employer … by the employer … unless the trade union has complied with Section 226A".That is the beginning of the notices. What is the point of the phrase "by the employer"? It is the drafting of the Mad Hatter. We all know that the provision applies to the union, no matter with whom it is concerned. If the four hurdles—the notices, the ballot paper, the declaration of result and so on—are not overcome, the union will lose.
This is the last time that we shall make the point. The Minister sometimes says to us, "You should have considered this from the point of view of advising the trade unions". I say to him that the Government should sometimes consider the Bill with a view to trade unions perhaps winning a case now and again, instead of the Government always drafting the legislation so that they cannot. One does not draft a Bill such as we have agreed this is, where a union must go through all four extra hurdles, and saying, first, that it does not apply to the members. The logic of the Bill is not the logic of the Minister. These four extra hurdles do not apply where a member of a trade union brings an action. Why not? The Minister has just said that it is absolutely vital. But if a member brings an action and the union can show that it has satisfied the ordinary hurdles, it does not have to show any notice to the employers, as I read the Bill. I hope that the Minister will correct me immediately if that is wrong, because people outside are scratching their heads.
When an employer turns up, the union has to satisfy all four hurdles. When a third party turns up —not another employer in the dispute but some other person, whether or not an employer—he can show an action if the union does not show that it has declared the result of a ballot to an employer to whom it has given no notice. It can fail to give notice but if the third party plaintiff turns up it still has a defence.
It is a quite absurd state of law-making. I feel rather sorry for the third party plaintiff. Why should he not have the advantage of what the union will have to do when it gives notice to the employer? The Bill has been changed as it progressed. Had this been another occasion I should wish to go through the various stages because the Bill has not been the same all along. What is now Schedule 8 was Schedule 7, but it used to he rather different. The Government have now left themselves, through insufficient time and consultation, with a Bill which is dilapidated law. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 3 not moved.]
§ Viscount Ullswater moved Amendment No. 4:110
§ Page 31, line 32, after ("describing (") insert ("by name or in any other manner").
§ The noble Viscount said: My Lords, I am speaking to Amendments Nos. 4 and 6. I believe the amendments may commend themselves to your Lordships as a means of putting it beyond doubt that a union may be able to satisfy the new notice requirements otherwise than by providing individual names to describe relevant employees. Indeed, the Government believe that the circumstances in which a union will only be able to satisfy the requirement by providing names will arise very infrequently—if ever.
§ The Government have never, of course, sought to argue that there was really any scope for such doubt, even without these changes. In explaining why we now propose them, I must, therefore, refer to certain amendments tabled by the noble Baroness, Lady Turner.
§ These government amendments have been prompted by Amendments Nos. 5 and 7 proposed by the noble Baroness. As I understand them, her amendments must be seeking to do exactly the same thing as would be achieved by the Government's. They acknowledge on the face of the Bill for the first time that the provision of individual names is one means of satisfying the notice requirements.
§ The Government's amendments would have exactly the same practical result as those tabled by the Opposition. Why then, do we prefer them? Frankly, the reason is our desire to act in accordance with the principles of good practice in drafting legislation.
§ It is clear enough that the government amendments are more concise than those of the Opposition. Our amendments do not involve adding any new subsections, and require fewer words. We must also aim to minimise the risk of confusion about the intended effects of the law. The government amendments, therefore, avoid the importation of the imprecise, undefined, concept of "as a matter of course". It is clear enough that, as the Opposition amendments stand, no one would really be any the wiser about the particular circumstances in which it would, or would not, be necessary for notice to be given in a form that included individual names.
§ As I have said at all the stages when your Lordships have considered the detail of the content of the proposed new notices to employers, we believe that employers should be entitled to know which of their workers are likely to be involved in either a ballot on industrial action, or in official industrial action.
§ In responding to Amendment No. 20 at Report stage I explained exactly why we believe employers should have that right. My remarks are recorded at col. 89 of Hansard for 26th April. Later, in the debate on Amendment No. 21, I pointed out that a situation where industrial action is in prospect creates very special circumstances. In such a situation the union will be seeking the special protection which the law may provide if it calls for industrial action. The point is that it is the union's choice whether to embark on the organisation of action. When it makes that choice and decides to seek the special protection of the law, it may well have to do things which it would not otherwise wish to do.111
§ Since the union will be proposing to do something which is directly aimed at the relationship which exists between its members and their employer, it cannot be wrong to ignore the employer's rights. Those rights, it seems to us, must include the right to be able to know which employees may be voting in an industrial action ballot or are called on to take industrial action. If the Opposition amendments are to be taken as evidence that they now accept that it is right for the employers to know those details, that is very welcome.
§ The new notice requirements are both practicable and reasonable. They do not require a union to do more than it can do by way of telling an employer about its intentions. But they will provide important early warning to employers and help ensure that businesses and the public can be better protected against the effects of precipitate industrial action. These amendments are evidence of our willingness to respond to ideas for changes to the legislation which are compatible with its basic objectives. Since our understanding of the intended effects of the noble Baroness's amendment is that they would fall into that category, I am happy to offer these government amendments as a means of achieving the same result in a better way. I beg to move.
§ 10.15 p.m.
§ Baroness Turner of Camden
My Lords, during discussion of this Bill in Committee, and again on Report, we have expressed our deep concern that the Bill as currently drafted could involve a union in having to identify its members to an employer twice —once when seeking to ballot members and again when seeking to put into operation a majority decision to have a dispute when members would be balloted.
We have sought to meet the Government's case in our amendments on previous occasions by suggesting that categories of employees should be indicated. We have also suggested that numbers could be indicated. But on neither of those occasions were the Government prepared to accept our amendments.
I endeavoured at Report stage to protect confidentiality by proposing that the union should not be expected to give the employer names of members held in confidence. It is surely obvious that every union has in membership people who would prefer that their employer did not know that they are union members. For that reason, not all union members pay subscriptions by check-off, even when there is such an agreement with the company. Sometimes they are people who are in line for promotion. While they may wish to continue membership of the union, they may feel—possibly wrongly —that their chances of promotion could be diminished if their union commitment were known. It is a fact of industrial and commercial life that quite subtle forms of discrimination, which are hard to identify, sometimes take place. Moreover, if the names of individuals are known in advance of disputes the possibilities of intimidation are obvious.
During our debates on this question, and again tonight, the Minister has said that it would not normally be necessary to provide names, but only in 112 the most exceptional circumstances. Therefore we put down amendments this evening in a last attempt to try to ensure that an employer in a potential dispute situation could not assume that he had a right to be provided with names.
The Minister says that the amendments he proposes, Amendments Nos. 4 and 6, are attempts to meet the objections to which we have previously given voice. Unfortunately, from our standpoint, they fail to do so. What bothers us particularly is that they refer to,by name or in any other manner".Noble Lords will note that "name" appears first. In other words, the employer would have every reason for assuming that,by name or in any other manner",meant "by name".
I credit the Minister with an attempt to meet the points we have made. We have made them very strongly. They were made not only on this side of the House. Noble Lords on the other side have also been disturbed about the implications of the Bill unless amended. I am sure that the Government intended to make improvements in the direction that we sought. Unfortunately, they have failed to do so. In my view, the wording that they suggest is rather worse than what appears in the Bill unamended. To have inserted in the Bill "by name", as the first requirement, so to speak, will encourage employers to believe that as a matter of course they are entitled to be advised by name of the people who will be balloted and who later may be called out in dispute.
I appreciate the views put by the Minister in regard to our amendment. I would not claim that the wording is marvellous but we did try to meet the objections to previous amendments voiced by the Minister. We felt that we had devised a formulation which would mean that the employer did not assume as a matter of course or right that he was entitled to have names. With respect, I do not believe that the alternative wording suggested by the Minster in any way meets our objections. It is with great regret that we are unable to accept it.
§ Lord Rochester
My Lords, on these Benches we have maintained throughout the Bill's passage that the requirement that unions could be forced to give employers the names and addresses of members amounted to unreasonable breach of confidentiality. In Committee and on Report various unsuccessful attempts were made to find a formula acceptable to both the noble Viscount and noble Lords on this side of the House.
I suppose that we must acknowledge that the amendments in this grouping mark the end of this particular road. Like the noble Baroness, Lady Turner, I accept that in moving the amendment the noble Viscount has done what he can to meet our concern. I am only sorry that, as the noble Baroness said, he has not quite done so.
The noble Baroness acknowledged that she found some difficulty in framing her Amendments Nos. 5 and 7. But they are perhaps to be preferred to the amendments proposed by the noble Viscount, Lord Ullswater.
§ Lord Wedderburn of Charlton
My Lords, I support my noble friend very strongly on this matter. I wish to say to the Minister that this point was widely discussed by those interested in the matter outside this House. It is a general opinion among lawyers that the amendment would confine the trade union and detract from the rights of employees rather than the opposite. It is too late to make the case again that this is an infringement of human rights, though I still believe it to be such. However, the manner in which this legislation has gone through also suggests that it is, as it were, claiming back territory that was given away in another place.
After all, in Clause 17 in its original form the union was required to state the identity of the relevant members. That was taken out of the Bill and it was then not very clear just what the union should do. In both the relevant clauses it should describe them so that the employer could ascertain them. There was not much elbow room there, one might think, but there was some.
Now, however, to insert the phrase that the union must describe its members—"finger them", as I once said in this House—by name or in any other mannerclearly makes the requirement that name is the primary solution and the standard and that "in any other manner" on normal principles of interpretation must match up to naming the members involved. It is therefore a step back to what used to appear in Clause 17. I think it extremely unfortunate. It is not simply a technical matter. The noble Viscount may feel that it should make some small improvement. In fact it takes a colossal retrograde step from what was in the first draft of the Bill.
§ Lord McCarthy
My Lords, I merely wish to say to the noble Viscount that if he has really done it for us, perhaps for our sake he will take the amendment away and lose it.
§ Viscount Ullswater
My Lords, I am sorry that I do not have the support of my noble friend Lord Campbell of Alloway. When he spoke to me earlier today he said that he would have liked to support the amendment as he saw it as a genuine attempt by the Government to go down the road that we have discussed both in Committee and on Report. The noble Lord has his birthday today and I can understand why he may not be in his place.
Amendments Nos. 4 and 6 do no more than replicate, with drafting improvements, the effect of those tabled by the noble Baroness, Lady Turner. However, from the tone of the debate I can see that the amendments are not attractive to noble Lords opposite. That being so, I beg leave to withdraw Amendment No. 4. It follows that as a matter of logic I shall have to resist Amendments Nos. 5 and 7.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 5 not moved.]
§ Clause 20 [Notice of industrial action for employers]:
§ [Amendments Nos. 6 and 7 not moved.]
§ Clause 21 [Industrial action affecting supply of goods or services to an individual]:114
§ Baroness Denton of Wakefield moved Amendment No. 8:
§ Page 37, line 1, leave out from ("act") to ("is") in line 2 and insert ("to induce any person to take part, or to continue to take part, in industrial action").
§ The noble Baroness said: My Lords, in moving Amendment No. 8 I shall speak also to Amendment No. 9. It is due to amendments tabled by the noble Lord, Lord Wedderburn, earlier in the Bill's consideration that these amendments have come about. I am grateful to him for enabling us to consider again certain aspects of the provisions in Section 235A which will, I believe, be improved by the amendments.
§ In particular, Amendment No. 37 tabled by the noble Lord, Lord Wedderburn, during Committee, would have removed subsection (8) of Section 235A. Even though that amendment was not moved by the noble Lord, it prompted us to consider further the need for this subsection. That in turn led us to conclude that subsections (7), (8) and (9) of Section 235A were unnecessary. I hope that the noble Lords opposite will welcome the amendments. I beg to move.
§ Lord Wedderburn of Charlton
My Lords, I am grateful to the noble Baroness. I understand the main thrust of, first, Amendment No. 8 and then Amendment No. 9. However, I do not quite understand the deletions. My noble friends and I suggested the deletion of subsection (8), even though we were unable to remove it. However, I should like to probe the reasons for the deletions.
As I understand it the only reason for removing subsection (8) is that the same result is brought about by Section 245 of the consolidation Act 1992. That seems to be clear. However, can the noble Baroness say whether the equivalent provisions of subsection (7)—the definition of industrial action—and subsection (9)—defining contract of employment by the wider test of contract for services—apply to Section 235A? Perhaps the noble Baroness can give me the source for that. I could find some of it in the consolidation Act but not all. It may be quicker if the noble Baroness can tell me where to look for each word.
§ Baroness Denton of Wakefield
My Lords, I hope that I am able to satisfy the noble Lord, Lord Wedderburn. Amendment No. 8 will amend Section 235A(2) so that there can be no question that the rules which determine whether an inducement is actionable in tort or under Section 62 of the 1992 Act will determine whether proceedings can be brought under the new citizen's right. Subsection (7) can therefore be removed.
Once subsection (7) is removed there is no longer any need for subsections (8) and (9), which concern the interpretation of the term "contract of employment". We believe these subsections to be an unnecessary duplication of provisions elsewhere. The issue of what constitutes a contract of employment in connection with industrial action is already covered in existing provisions in the 1992 Act. In the case of proceedings in tort, it is covered in Section 245, and in the case of proceedings brought by a trade union 115 member it is covered by Section 62(7) of the 1992 Act. I hope that that clarifies for the noble Lord the reasoning behind the amendments.
§ Baroness Denton of Wakefield moved Amendment No.9:
§ Page 37, leave out lines 38 to 49.
§ Clause 28: [Dismissal on ground of assertion of statutory right]:
§ Viscount Ullswater moved Amendment No.10:116
§ Page 47, line 27, after ("(1)") insert ("(read with (2) and (3))").
§ The noble Viscount said: My Lords, with this amendment I should also like to speak to Amendments Nos.11, 26 and 27. These small amendments to Clause 28 and Schedule 5 are purely drafting amendments to ensure that provisions are interpreted as intended.
§ Viscount Ullswater moved Amendment No. 11:
§ Page 47, line 30, after ("(1)") insert ("(read with (2) and (3))").117
§ 10.30 p.m.
§ Clause 32 [Amendments of transfer of undertakings regulations]:
§ Lord Wedderburn of Charlton moved Amendment No.12:
§ Page 51, line 11, after ("where") insert ("before the transfer —(a)").
§ The noble Lord said: My Lords, in moving Amendment No. 12 I wish also to speak to Amendments Nos.13 and 14. One of the things that has happened to the Bill (perhaps rather more than most) is that on its way through the various stages of the two Houses it has been buffeted by outside events, especially legal ones. One of those has been a decision of the European Court of Justice in Luxembourg relating to the Transfer of Undertakings (Protection of' Employment) Regulations 1981—in particular Regulation 5 —which were an attempt to implement the 1977 directive on transfers of undertakings.
§ I have to explain my amendment with some background information. When the transfer of an undertaking occurred Regulation 5 appeared to say —as it appeared the directive said - that the contract of employment and rights and liabilities of employees were passed to the transferee from the transferor employer with the other incidence of the undertaking. Broadly speaking, that is still correct but in the case of Katsikas v. Konstantinidies, reported quite recently, the European Court of Justice in Luxembourg decided that that was not wholly correct and the employee had what they called certain fundamental rights. That is an important stage in the judgment.
§ Among those fundamental rights was the right to decide by whom he or she would be employed. The employee could not be transferred necessarily under the directive as part of the property, as it were. However, the court insisted that the directive and Community law did not finally pronounce upon the matter. In an exercise of what is fashionably called subsidiarity the court referred the final word back to the national state system of law to determine the fate of the contract of employment. However, I do not think there is any question—although there has been and will be considerable discussion on it that the court looked at the matter in the context of workers' fundamental rights.
§ What happened was that I then moved an amendment. Much more important, the Government moved some amendments which are to be found on page 51 of the Bill. The Government followed the first precept of the court's judgment to the effect that the employee should have in the positive law of this country a right to object to being transferred. So far, no argument by anyone. The Government then went on to say that where an employee objects to the transfer of an undertaking in which he is employed, that operates in itself, ipso facto, as a termination of the contract of employment with the transferor and that he should not be treated thereafter for any purpose as having been dismissed by the transferor. So what in fact happens with the Government's solution to the Katsikas problem is that any employee who individually objects to being transferred with the undertaking finds that his or her contract of 118 employment blows up in his or her face and he or she is left with a right to object which in fact has destroyed any possible rights that he or she could have had either against the transferee or against the transferor.
§ I submit to the Government that that is not fair. I do not think it is very fair that in a transaction which is set afoot by the transferor employer—after all, it is his decision to transfer the undertaking—an employee who says "I don't want to go" should be left with nothing. The amendment does not go far in giving him or her anything but it does give the minimum. In other words, what we are adding in the necessary condition of the amendment on page 51, line 19, is the right to be paid a sum equal to the amount that the transferor would have had to pay if he had given proper notice to the employee. It gives nothing else—no redundancy pay and no other compensation for any other right. It is simply the right to be paid the money for the short notice period on which most workers work. We think that is perfectly reasonable.
§ Indeed, it is not just reasonable and fair. It is probably—indeed more than probably—the right answer in law as far as concerns the Katsikas judgment because it is almost unbelievable, and certainly in the jurisprudence of that particular court highly unlikely, that the European Court in Luxembourg wished to say that a worker had a fundamental right to object to the transfer; that the nation state law should then determine what was done with the contract of employment; but I cannot see that the court would then end with the third proposition that the member state could destroy the contract of employment because of the transfer which would destroy all fundamental rights with it. In other words, what the Government's solution does is allow the right to object but then invalidate it by the consequence which automatically follows.
§ It is my strong submission that that is not within the spirit of the European Court of Justice decision in Katsikas. Nor, I believe, would it be the decision of the court were the United Kingdom taken wearily yet again to the Luxembourg court by the Commission. It is not asking a lot that a worker who knows nothing perhaps—because the employer may be in breach of the obligation to consult—of the transaction of transferring the undertaking until it is afoot the next day should in any event be paid the amount which is equal to the money he would have accrued in lieu of notice. I beg to move.
§ Lord McCarthy
My Lords, we do not want to continue this debate. We want merely to state that we agree completely with what my noble friend has said. It seems to us that they would be empty rights indeed if the Bill were to stand as it is at the moment. We believe that that would undoubtedly be contrary to the spirit of the decision. We hope that the Government will show a little generosity tonight.
§ Viscount Ullswater
My Lords, this group of amendments is concerned with the situation where an employee does not wish to transfer to a new employer when the undertaking in which he works is transferred. It follows on from amendments tabled by both sides of your Lordships' House at Report stage 119 in reaction to the judgment of the European Court of Justice in what is generally known as the Katsikas case.
The Government's Amendment No. 74A, which your Lordships' House agreed to at Report stage, makes it clear that an individual has the right to inform either the old or the new employer that he objects to the transfer of his employment contract. That amendment provides that, when such an objection is made, the individual's contract terminates. The individual is not dismissed and he is not made redundant. His contract simply comes to an end.
As the noble Lord, Lord Wedderburn, has explained, the effect of Amendments Nos. 12, 13 and 14 would be that an employee would have the right of objection to the transfer of his contract but the contract could only be considered to have terminated without there being a dismissal if the employer, not wishing the contract to be maintained by him, paid the employee a sum equivalent to pay in lieu of notice.
The Katsikas judgment states that a member state is entirely free to provide that,the contract of employment or the employment relationship may be considered as terminated … on the initiative of the employee".There is nothing in the judgment to support the argument that the old employer should be obliged to give the employee notice, or payment in lieu of notice, in such circumstances. Nor do the Government believe that such a requirement would be appropriate.
A payment in lieu of notice is generally understood to mean a payment made by an employer who terminates an employee's contract of employment without notice. In a situation covered by the transfer of undertakings regulations, however, the employer is not terminating his employees' contracts, which continue unchanged with the new employer. It is the employee who objects to the transfer of his contract to a new employer under the regulations who terminates the contract, not his original employer. That being the case, the Government cannot accept that it would be right to require the original employer to give the employee notification of termination or payment in lieu of such notice.
The Government do not consider that such payments are necessary or desirable. If an employee believes that the change of employer is significant and is to his detriment, he can resign from his employment with the new employer and claim constructive unfair dismissal under general employment law. If he does not believe that he has grounds for doing that, but nevertheless does not wish to transfer, he can object and have his contract terminated. If he is particularly concerned about receiving a period of notice, there is nothing to stop him transferring to the new employer and immediately offering his resignation, although it would, of course, be for the employer to decide in such a situation whether the notice period needed to be worked.
The Government firmly believe that an employee who does not wish to transfer to a new employer has, as the result of the Government's Amendment No. 74A at Report, in combination with existing provisions, rights which are adequate and which 120 satisfy the requirement of the acquired rights directive. The amendments cannot be accepted and I hope the noble Lord will withdraw them.
§ Lord Stoddart of Swindon
My Lords, the Minister has not dealt at all with the morality of the situation. He seems to be suggesting that the undertaking which is transferring to some other holder owns the employee who becomes its chattel and that the employer can with him do what he likes. There is no defence which the employee can give, and there is no protection for him unless he is given the amount in lieu of notice which he would normally expect to get if he were dismissed by his employer at a moment's notice. That is what could happen.
§ Lord Wedderburn of Charlton
My Lords, the noble Viscount does not seem to wish to reply to my noble friend. I do not believe that there is much more to be said. It is not true that if the employee crosses to the transferee employer he will necessarily be able to engineer constructive dismissal. It is not true that the transferor will necessarily do more in that respect. I shall look very carefully in Hansard, but I did not recognise the words that the Minister appeared to be quoting from the Katsikas case about termination of the agreement. The judgment states that the fate of the contract of employment rests with the member state's law.
The employee has a fundamental right to object to being employed by the transferee and that is what the Government have overlooked. Of course it is difficult to put that together with the position of the transferor who is transferring the undertaking. All we have asked is that the employer, who is the transferor, should pay what he would normally have to pay to someone whose employment he is ending. But that does not seem to be acceptable.
The Government's position appears to be, "Let them eat transfers". That is not satisfactory to us.
§ 10.45 p.m.
§ On Question, Whether the said amendment (No. 12) shall be agreed to?
§ Their Lordships divided: Contents, 15; Not contents, 34.121
|Division No. 3|
|Attlee, E.||Lockwood, B.|
|Clinton-Davis, L.||McCarthy, L.|
|Cocks of Hartcliffe, L.||Rochester, L.|
|David, B.||Stoddart of Swindon, L.[Teller.]|
|Dean of Beswick, L.|
|Dormand of Easington, L.||Tordoff, L.|
|Eatwell, L.||Turner of Camden, B.|
|Graham of Edmonton, L.[Teller.]||Wedderburn of Charlton, L.|
|Arran, E.||Denton of Wakefield, B.|
|Astor, V.||Elles, B.|
|Belstead, L.||Ferrers, E.|
|Blake, L.||Fraser of Carmyllie, L.|
|Blatch, B.||Goschen, V.|
|Brougham and Vaux, L.||Harlech, L.|
|Caithness, E.||Harmar-Nicholls, L.|
|Cox, B.||Harmsworth, L.|
|Craigmyle, L.||Hayhoe, L.|
|Cumberlege, B.||Henley, L.|
|Hesketh, L.||Skelmersdale, L.|
|Howe, E.||Strathmore and Kinghorne, E. [Teller.]|
|Long, V. [Teller.]|
|Mackay of Ardbrecknish, L.||Thomas of Gwydir, L.|
|Mackay of Clashfern, L. [Lord Chancellor.]||Ullswater, V.|
|Wakeham, L. (Lord Privy Seal.]|
|Rodger of Earlsferry, L.||Wynford, L.|
|St. Davids, V.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 10.52 p.m.
§ [Amendments Nos. 13 and 14 not moved.]
§ Lord McCarthy moved Amendment No. 15:
§ After Clause 34, insert the following new clause:
("Appointment of National Council.
The Secretary of State shall appoint a National Council, consisting of suitably qualified persons, whose function shall be to monitor wages and conditions applying generally in industries formerly covered by Wages Councils, and to report to the Secretary of State on what steps, if any, are needed to provide protection for employees in those industries.").
The noble Lord said: My Lords, we come to our old friends the wages councils. As the old tunes from the Bill are played for the last time some of us feel like Count John McCormack on his seventeenth farewell tour. This time we are accepting the abolition of wages councils but are asking for a national council:
consisting of suitably qualified persons, whose functions shall be to monitor wages and conditions applying generally in industries formerly covered by Wages Councils, and to report to the Secretary of State on what steps, if any, are needed to provide protection for employees in those industries".
We table the amendment in order to raise once again the astonishing way in which the Government have failed to advance any consistent case for their policy. It is noteworthy that my noble friend Lord Eatwell asked three questions during the various stages of the Bill. I calculate that he asked six times; twice on Second Reading, twice in Committee and twice on Report. My noble friend asked how many new jobs would come from abolition, how much wages must fall in order to obtain those new jobs and what would be the Exchequer costs of abolishing the wages councils. If we had more time, I should list what the Minister said at col. 509 on 1st March, at col. 777 on 30th March and at col. 896 on Report, and so on. He said that he did not have any reasons. His best reply was his first reply in which he said that if he were to deal in the details that we wanted, we should be there a lot longer. That was the best that he did. Therefore, we are forced to ask the Government how they can continue in that way with no further details and no further facts except their own prejudices.
§ Indeed, in the course of arguing with us, it seems to me that the Government have contradicted the very arguments with which they began. At one stage the noble Viscount told us that, whereas it was possible for him, for his friends and in particular for the former Secretary of State for Employment to calculate with great precision what the loss of jobs in the future might conceivably be if a Labour Government introduced a minimum wage programme—at one time he gave a figure of 1 million jobs, but that it is all in the future—it was quite unreasonable of us to ask him to tell us what would be the benefits and how many 122 jobs were to, accrue if we got rid of the existing set of institutions; namely, the wages councils. That is in spite of the fact that wages councils have been abolished in the past. Parts of wages councils' functions have been abolished in the past; for example, the youth rate and the ability of wages councils to give a range of rates. All those things have happened and are capable of study; and yet the Minister asks to believe that, whereas he can give us precise figures and give us a whole range of different studies to tell us what a set of proposals which a Labour government would like to introduce will do, he cannot tell us what will happen as a result of his own policies.
§ I suggest that the noble Viscount should make up his mind. It must surely be the case that any expected change as a result of this legislation must be as a result of an anticipated fall in wages. If there is to be no fall in wages as a result of the abolition of wages councils, there can be no fall in prices, no increase in demand and no employment gain. Anything which happens must happen as a result of a fall in wages, a fall in prices and an increase in employment.
§ Therefore, if the Government are so certain that that abolition must take place at this time, they must be able to estimate what they believe will happen to wages, prices and demand. Otherwise they are forced to assume, as we assume, that very little will happen to employment and not much will happen to prices but that there will be a significant number —not a large number but a significant number of people on the minimum wage who, when the minimum is taken away, will find, as happened after the abolition of previous wages councils, that their wages are falling without any observable benefits for anyone else.
§ If the Minister says that he knows all that, then he has nothing to fear from agreeing to the amendment because we are merely asking that the matter should be studied to find out which of us is right and which of us is wrong. I beg to move.
§ 11 p.m.
§ Lord Rochester
My Lords, as the noble Lord, Lord McCarthy, said, it must now be acknowledged that the House has accepted the principle that wages councils are to be abolished and that attempts to limit the extent of abolition or to postpone its application have failed. However, on these Benches we continue to question the validity of the reasoning on which the Government have based their decision.
In Committee, the noble Baroness, Lady Turner, withdrew an amendment calling for annual reports to be made by the Secretary of State following consultation with interested parties, the first to be presented 12 months after abolition on the pay and conditions of employees in industries formerly covered by wages councils. In his reply, the noble Viscount, Lord Ullswater, objected and stated that consultation with, among others, trade unions—and bodies such as those concerned with low pay—meant that any subsequent report would be made against the background of opinion partly critical of the effects of abolition. Accordingly, under the present amendment, it is left to the Secretary of State to appoint to the 123 proposed "National Council", which would monitor wages and conditions in the affected industries, people whom he considers to be "suitably qualified".
In his reply to the earlier amendment, the Minister also said that its purpose could only be to establish a platform for further debate on wages councils after they had been abolished. But why should the Government be averse to further debate on the effects of abolition? If their claim that those effects will be beneficial for the economy and for employment prove to be justified, that will become apparent to everyone and the Government's view will be vindicated.
But let us suppose that the fears expressed by noble Lords on this side of the House prove to be well founded because the monitoring body finds that employees in industries formerly covered by wages councils are inadequately protected. The amendment does not call for restoration of the relevant wages councils; it calls only for advice to be given to the Secretary of State on what remedial action should be taken. That seems to me to be a most reasonable proposition and I support it.
§ Lord Eatwell
My Lords, the clause presently under discussion has been one of the most controversial in the Bill. It has excited great interest among a wide range of institutions and groups outside the House. Indeed, the concern has been so widespread that I think it not unreasonable to say that it has not been, and is not, a party-political matter. In all the discussions that we have had on the topic of wages councils, there has been a persistent theme: a fear expressed not only on this side but also on the other side of the House that the abolition of wages councils will result in a fall in wages, little if any increase in employment and a considerable bill for the Exchequer as declining family incomes require ever greater support in the form of welfare payments.
The noble Viscount sought to reassure your Lordships on those matters. But he has readily admitted that he was not prepared—indeed, he said that he was not able—to provide any quantitative assessment of the probable impact of the measures that he proposed. Both in Committee and on Report, this Chamber accepted the noble Viscount's assurances. The Government readily admit that the consequences of their actions are unknown. They hope that things will be all right, they are even confident that things will be all right; but they cannot present any evidence to show that things will be all right. In those circumstances, it would be irresponsible not to monitor the effects of abolition.
Let us remember that the abolition will affect the lives of 2.5 million of our fellow citizens, most of whom are women. Many of them, for a variety of reasons widely discussed in Committee and on Report, are highly vulnerable. Surely we owe it to them to monitor the impact of abolition and ensure that the Government's confidence is well founded and that the doubts that I and others have expressed were, fortunately, exaggerated.
The proposed national council would, if it proved successful, become a useful source of objective research and information on this contentious area. It 124 would clear away some of the disagreement and confusion which have all too often coloured our debates. There is also another reason why the Government would be well advised to accept the amendment. My noble friend Lady Lockwood has made clear throughout the passage of the Bill that the abolition of wages councils is likely to contravene Articles 119 and 5 of the Treaty of Rome and Article 6 of the equal pay directive.
Acceptance of this amendment would, at the very least, be a demonstration of good faith by the Government that they had nothing to hide and a demonstration that they have faith in all those repeated assurances given by the noble Viscount that things would turn out all right. Indeed I would say that if the Government do not accept this amendment, they are seriously letting down the noble Viscount.
In case there should be any confusion I should make clear that a report made under the remit outlined in the amendment would break new ground. It would add to the material currently published in the new earnings survey, giving in particular a solid statistical insight into the wages and conditions in some of the more backward sectors of British industry. Of course by being confined to wages councils industries, this would be in some sense an arbitrary confinement but it would be a useful experiment and if the council works as well as we expect, its remit could be widened. It would be a valuable tool in the formation of future policy.
This amendment is therefore, I submit, an opportunity for the Government to show good faith; to show confidence in their own arguments; and to offer an opportunity to create a valuable resource in future policy making. I hope the Government will accept it as an entirely non-contentious amendment.
§ Baroness Lockwood
My Lords, I wish briefly to support my noble friends' amendment. It is a modest amendment and, like many other speakers, I do not think it is an adequate substitute for the wages councils which will be abolished. However, it could enable effective monitoring of the situation and it could give the Government the chance to decide whether further measures were required.
I feel that the Minister has been far too cavalier in his dismissal of the effect on pay of the abolition of wages councils and the effect on women's pay in particular. I also feel that he has dismissed far too lightly European law and the implications for equal pay under European law. Indeed we may still see the Government challenged on the issue in the European Court of Justice. If I may say so, I also feel that the Minister has demonstrated his own lack of understanding of our own legislation. The equal pay legislation did not rely on just one remedy that women could invoke; namely, that they could take their individual cases to an industrial tribunal. There was a whole raft of measures that could be invoked such as collective agreements, job evaluation, raising women's pay to the lowest male level, wages councils, and later, after the legislation had been amended, equal value.
The best that the amendment that is moved this evening can do is to provide a pointer for the future. It might just get the Government off the hook if they 125 were challenged under Article 5 of the Treaty of Rome; namely, the article which requires member states to take all appropriate measures to ensure fulfilment of the treaty obligations—the obligations in this case being those under Article 119 of the treaty and the equal pay directive. On those grounds alone I hope that the Government may be persuaded to support the amendment this evening.
§ Lord Stoddart of Swindon
My Lords, if the Government do not accept the amendment, it will be interesting to hear their reasons. It is very late at night. I have already complained that the House has had insufficient time to discuss these amendments properly so I shall not delay the House for long. I shall not repeat the arguments which have already been used. However, there is one argument which perhaps might have some appeal to the Government because at the moment they are undertaking the most rigorous review of public expenditure we have ever known. We find that we shall be £50 billion in the red at the end of this year and that government spending, as a proportion of national income, is now more than 45 per cent. Therefore, the Government are worried about public expenditure.
One of the ways in which the Government can save public expenditure is if employers pay proper wages and the social security system does not have to be used to subsidise them. I suggest that setting up the proposed organisation would give the Government an early warning of trends showing that employers are depressing wages to a level that would have been unthinkable under the wages councils. Therefore, their own interests, the interests of public expenditure and the interests of us all as taxpayers combine to provide one very good reason for the Government to accept the amendment.
§ Viscount Ullswater
My Lords, I am disappointed that the noble Baroness, Lady Turner, and the noble Lords, Lord McCarthy and Lord Wedderburn, thought it right to put down this further amendment comprising a new clause in relation to the provision in Clause 34. It follows closely an amendment examined in Committee and then withdrawn. In introducing the amendment, the noble Lord, Lord McCarthy, cast his remarks much wider than the amendment itself and then, at the very last minute, returned to it. But he did not really explain what the amendment would do.
I understand the remarks of the noble Lord, Lord Rochester. He has sought to oppose the abolition of wages councils throughout our discussions. I accept his position, but I fear that I cannot agree with him on that particular matter, but our paths will have to diverge at this point.
The noble Lord, Lord Eatwell, began his speech with an interesting comment. He said that this is not a party matter. I rather agree. The Opposition have never said that they would reinstitute the wages councils and they have not done so now.
The new clause seeks to appoint a council of qualified people to report on any steps necessary to protect employees in industries formerly covered by wages councils. It accepts that the councils will be abolished but would immediately assemble a 126 collection of experts to recommend that they be replaced. The arguments deployed by noble Lords opposite have not remotely made a case. The amendment is wholly unacceptable.
I must also tell your Lordships that the proposed clause has grave technical deficiencies. It refers to industries formerly covered by wages councils. As drafted, it would cover both those industries subject to the remaining councils, which are abolished under this Bill, and many other industries at one time covered by wages councils. The "experts" would be obliged to examine the jute industry, paper bag manufacturing, all the industries covered by the II wages councils abolished by the last Labour Government and a host of other industries, some of which have not been subject to wage fixing by a council for well over fifty years. I wonder whether that is really what the noble Lord, Lord Eatwell, proposes.
The clause refers to conditions of employment but, other than a limit on deductions for accommodation, wages councils have no powers to fix such conditions. In fact, almost all the councils decide only a basic minimum rate of pay and a minimum overtime rate. It would make little sense to follow up the abolition of the councils by instituting inquiries into matters over which the councils themselves have no powers or influence.
Throughout our discussions, the noble Baroness, Lady Lockwood, has pursued the point that she believes that women would be adversely affected by the abolition of the wages councils. I commend her for her tenacity in that regard. We believe that the abolition of the councils will increase the flexibility of the labour market and improve job prospects for women. Despite the contorted arguments from the other side of the House for full-timers, differentials in wages council industries are more are less the same as the average for all workers. Women's rights to equal pay are backed by the Equal Pay Act, the Equal Pay (Amendment) Regulations and the Sex Discrimination Acts. That is the body of legislation which protects women at work—not the wages councils.
We have again heard a range of ingenious points from the Benches opposite. I do not believe that they add anything significant to the very thorough debates we had on the subject at Second Reading, in Committee and on Report. I do not therefore propose to take up the time of your Lordships' House in once again restating the overwhelming arguments which have been so decisively accepted at earlier stages.
The Government will continue to reduce the burdens on business through deregulation. The Government will continue to take the measures which are necessary to strengthen our economy and to increase employment opportunities. The amendment does not look forward; it looks only back. I ask the House to reject it.
§ 11.15 p.m.
§ Lord McCarthy
My Lords, we have been seeking today to find names for the various replies from the other side. The response seems to me cheeky. It really is a cheek for the noble Viscount to say that he is 127 disappointed with us for putting down the amendment. We put it down partly because we wish him to answer questions. Yet again he has been asked the same question as he has now been asked seven times; and he does not provide a single answer. He simply makes assertions. He does not want to know; he does not wish to find out. He tell us that he knows—although he cannot measure the position and has no facts or figures—that when his Government abolish wages councils all kinds of benefits will flow. It reminds me of the famous remark of Mr. Heseltine when he was the Secretary of State for the Environment. When he disbanded a great research organisation he said, "We don't want research. It only narrows policy options". I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 39 [Restriction of publicity in cases involving sexual misconduct: industrial tribunals]:
§ Baroness Turner of Camden moved Amendment No. 16:
Page 56, line 45, at end insert:
("(c) for cases involving allegations of discrimination in employment because an individual is diagnosed as HIV positive or with AIDS, enabling an industrial tribunal, on the application of any party to proceedings before it or on its own motion, to make a restricted reporting order having effect for such period as the industrial tribunal may decide.").
§ The noble Baroness said: My Lords, at Report stage I tried to persuade the Minister to enlarge the clause which the Government introduced giving industrial tribunals and arbitration tribunals the opportunity of ensuring privacy in those cases involving sexual misconduct including cases where individuals were alleging discrimination in employment because they had been diagnosed as HIV positive or with AIDS. The Minister at that stage was not persuaded. However, since that time I have received a very interesting report from the National AIDS Trust. It is about HIV and AIDS in the workplace and examines cases of discrimination.
§ It is clear from the report that while there are many employers whose policy in regard to employees who are HIV positive or who have AIDS is above reproach, and sometimes very supportive, there are many others where quite the opposite is the case. The report lists a number of actual cases in which employees were dismissed as soon as the employer got to know of their condition. In some cases there has not been much that the employee could do because he or she did not satisfy the condition that there had to be at least two years' continuous employment. That happens apparently not infrequently.
However, in other cases employees who were dismissed felt unable to use the law because they were scared of publicity. I quote from one of the advisers who gave evidence to the National AIDS Trust who stated:
The bottom line is unless you are prepared for the whole world to find out you've got AIDS there is nothing you can do. Your only legal remedy in many cases is to take your employer to an industrial tribunal. Industrial tribunals are not held in secret and if you go to a tribunal and allege that you were sacked because of AIDS you run the risk of that
appearing on the front page of your local paper and most people are just not prepared to run that risk and I can't say that I blame them. The majority of clients seeking advice wanted to avoid legal action because of the fear that such action would make their HIV status publicly known as shown in the response given when an individual who had suffered a breach of confidentiality in the workplace, when asked whether he had considered legal action said, 'Legal action? That's an even greater breach of confidentiality, isn't it?'.
As a result a number of organisations concerned with helping people who are HIV positive or who have AIDS have been asking the Government for legal changes which would allow HIV-related hearings to be held in camera so that confidentiality could be more easily protected. It is understood that the Government are not willing to do that, believing that a different treatment for people with HIV would further entrench prejudice against HIV-positive people.
§ However, the amendments we have put down this evening do not ask for that. Bearing in mind what the report which I have just quoted said about local publicity, they refer only to reporting restrictions. It would be up to the IT or the EAT to make a decision in that regard.
§ The Bill presents an opportunity to do something. Unless something is done, many vulnerable people will suffer discrimination in silence because they will continue to be too scared of publicity to attempt to secure a just settlement of their grievances. I trust, therefore, that this evening the Minister will be persuaded that we have a case and that, even if the wording is not acceptable, eventually something will be done to give protection to these very vulnerable people. Incidentally, I am speaking also to Amendment No. 17, which has been grouped with this one. I beg to move Amendment No. 16.
§ Lord Eatwell
My Lords, I wish to support Amendments Nos. 16 and 17. I declare an interest as chairman of Crusaid, the national charity which raises funds to care for men, women and children affected by HIV and AIDS. An important part of the charity is the work of our hardship fund which provides immediate practical assistance to those suffering real hardship because of their own infection or that of a loved one.
The hardships created by HIV and AIDS are real enough. They are compounded by ignorance and prejudice. Crusaid's hardship fund has repeated experience of people who have suffered in their employment because of discrimination against someone who is HIV positive. Publicity surrounding HIV infection then creates further discrimination in housing and for children at school. It is the responsibility of a humane society to protect the sick and vulnerable against such ignorant discrimination. These amendments will provide a modicum of protection and go some way to meeting the responsibility we all share.
§ Lord Wedderburn of Charlton
My Lords, I support my noble friend's amendment. It is well known that discrimination in respect of those who are HIV positive is a growing problem in our society. That is not least in respect of insurance requirements which 129 are met at every point. Anyone who has had contact with the problem knows very well that my noble friends have by no means overstated the case.
The amendments may be said to be modest—perhaps unduly so. They apply only in cases of discrimination, but they at least enable the industrial tribunal or EAT to make a special reporting order. One would have thought that, given the social problem and the suffering which is caused in regard to what my noble friend rightly called ignorant discrimination, there is enough for the Government to be with us in wishing to see some such amendment on the statute book.
§ Viscount Ullswater
My Lords, as I made clear at Report, Clauses 39 and 40 are intended to cover cases involving allegations of sexual misconduct. They were introduced following wide public consultation. That consultation related only to sexual cases and those consulted were not asked for their views on whether special protection should be extended to any other kind of case.
I listened carefully and I appreciate the real concern demonstrated by the noble Baroness, Lady Turner, in what she seeks to achieve through the amendments. I also listened carefully to the concerns that the noble Lords, Lord Eatwell and Lord Wedderburn, expressed in support of the amendments. However, I have to say that the clauses involve a restriction of the important principle of open justice and as such they were only proposed after very careful consideration of all the issues involved. Noble Lords opposite propose once again, however, that the clauses should be extended significantly beyond what was first envisaged and what was covered in the public consultation. Such a move would involve a further erosion of the principle of open justice. It would also have a wide implication for a number of other areas. We have a responsibility to ensure that the principle of open justice is not restricted any more than is absolutely necessary. It is essential in weighing up the interests of individuals against this important principle that full account is taken of the views of all the parties who might be affected, and that all the implications of such a move are considered.
Noble Lords from all sides will thus, I am sure, appreciate that any move to introduce measures of the type proposed must not be undertaken lightly or before thorough consideration of all the issues involved has taken place in the light of public consultations. I hope therefore that the noble Baroness will be persuaded to withdraw the amendment.
§ Lord Eatwell
My Lords, before the noble Viscount sits down, I was encouraged by what he had to say at the end of his remarks. Will he give an undertaking that the Government will engage in consultation on this matter; and that the consultation which he says is necessary before such a measure would be introduced will be undertaken in the near future so that appropriate legislation could then be brought forward?
§ Viscount Ullswater
My Lords, I would not seek to be of such assistance to the noble Lord as to give him an undertaking. But I am quite certain that, when matters such as these are considered again for this purpose, the remarks of noble Lords in this House will be taken into consideration.
§ Baroness Turner of Camden
My Lords, I am sorry that the Minister again felt unable to move in our direction on this important matter. He says that there is an important principle of open justice at stake here. We on this side of the House are in favour of open justice. But it can sometimes mean that individuals in a particularly vulnerable position, such as people with HIV or those who have AIDS, may not feel able to enforce rights that are theirs in legislation. That is desperately unfair.
All the organisations concerned with support for people who are HIV positive, or who have AIDS, have been pressing upon the Government that something should be done. I understand that the National AIDS Trust has been asking that this type of case should be heard in camera. The Government have said that they cannot accept that. They do not feel like moving as far as that. For that reason we put down amendments which were very modest and which only involved reporting restrictions.
However, I note that the Government have said that the next time matters like this are under consideration, the views expressed this evening by noble Lords who spoke in the debate and who have supported the amendments will be taken into account. I cannot do much more about the matter at this point, so I have no alternative but to withdraw the amendment. But I say to the Minister that those of us who feel concerned about these issues will watch very carefully to see what happens in the future, to see how the Government respond to the representations that are made by the specialist bodies working in these areas to help people in this unfortunate position. In the meantime, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 40 [Restriction of publicity in cases involving sexual misconduct: Employment Appeal Tribunal]:
§ [Amendment No. 17 not moved.]
§ Clause 44 [Careers services]:
§ Baroness David moved Amendment No. 18:
§ Page 62, leave out lines 30 to 32 and insert ("and for assisting persons aged up to 21 years who have ceased undergoing relevant education, or disabled persons who are within five years of having ceased to undergo relevant education, to obtain such employments. training and education.").
§ The noble Baroness said: My Lords, at last we come to Clauses 44 and 45 which deal with the careers service. I should like to point out that this amendment is supported from all sides of the House. Unfortunately the noble Baroness, Lady Seear, and the noble Lord, Lord Swinfen, are not able to he here tonight because of commitments which they undertook long before they knew the date of the Third Reading of this Bill.
§ The purpose of the amendment is, first, to increase the range of the duty for the Secretary of State to 131 include older teenagers within the labour market so that they get careers advice free; and secondly, to take account of the longer period of transition which people with disabilities require in respect of advice about their possible careers.
§ In exercising Section 9 powers for clients outside Section 8 duty, there will be powers permitting charging set out in Section 10(5). Our aim is to ensure that no older job-seeking teenager in the labour market will be charged for a service. It may well not be the Government's intention to charge such young people. The Bill as written provides that possibility, and we must not allow that to happen.
§ As we enter the era of contracts with fixed budgets to meet Section 8 duty, which will have been calculated on the basis of eligible service clients, we need to ensure that young people under 21 still within the labour market seeking jobs and those with disabilities within five years of leaving education are classed as eligible service clients for whom charging will not be lawful. We should ask for an explanation of that rather ugly phrase "eligible service clients", which I am told was invented by a Permanent Secretary. It would be rather nice to have an explanation of why those words are used.
§ Let us look carefully at what the Government currently propose. If funding is not available in a new careers service contract to assist, for example, an unemployed teenager who left education at age 16, the careers service contractor will not have the money to provide the service. It is as simple as that. If one contracts with a painter and on drawing up the contract it is agreed that he should paint five doors and six windows at an agreed price, one cannot therefore expect him to paint another window, a radiator and a skirting board without affecting either price or quality. In a commercial world one gets what one pays for.
§ So in this new commercial careers service the Government must have a duty and not simply a power to pay up front for a service to assist people at risk and in need. There must be no question whatever of any contractor being able to charge those seeking work who are older teenagers or disabled persons leaving education within five years of leaving.
§ I have been asked why we chose the age of 21. I should like to explain that a number of people aged 16 leave school and get out of what is called here "relevant education". They may take a job or possibly do nothing and be unemployed for a year or two and then decide they want to come back. Under the Bill as it stands there is no duty on the Secretary of State to provide free careers advice, which would be needed very badly just at that particular point. We all know that young people with disability take longer to develop and decide what they will do. They have to spend longer in the education system. They too need that longer time. That is why we went just beyond the end of teenage to age 21. I hope that that has explained the situation.
§ This is a very vulnerable group who need to have free advice. We very much hope that the Minister will be able to support the amendment. I beg to move.132
§ 11.30 p.m.
§ Lord Henderson of Brompton
My Lords, I rise to speak in support of what the noble Baroness, Lady David, said most comprehensively. I added my name to these amendments partly because I am particularly interested in the welfare of young people in the transition from school to responsible jobs in later life. We know that even those who are not disabled are in very great difficulties. But for those who are disabled, every help should be given with a will by the Government. They cannot be expected to progress at the rate of those who are well. That is why it is necessary to put the provision of five years into the Bill.
At this stage I should like to say that I very much welcome the introduction of these two clauses into the Bill. It is an admirable initiative by the Government. I regard all these amendments as totally non-party and aimed solely at improving the purposes of these clauses. I believe that the amendments are worthy of being accepted by the Government on that basis.
Twenty-one is an age which is well recognised as being the threshold of adulthood. I would regard the extension of the provisions in Clause 44 to the older adolescents as being essential in the interests of their finding good and appropriate employment which will last them into adulthood and thus be of great benefit to the country in general. We now have far too many young people who are unemployed and without a hope of employment because they have not had proper career training or the advice which goes with it. I should have thought that that part of the amendment was totally uncontroversial and well worth consideration by the Government.
I have already spoken to the other part of the amendment relating to the disabled. It is self-evident. The Government already do a great deal for the disabled in other realms and could take this aspect into account in respect of career training. The period of five years is something which could easily be accepted and is in line with other policies for disabled people. I therefore warmly support the noble Baroness.
§ Lord Eatwell
My Lords, I too wish to support the amendment. I shall not repeat the arguments put forward by my noble friend Lady David and the noble Lord, Lord Henderson of Brompton, who have so ably made a case for it.
I want to make a point which fits in with the Government's concern of creating greater flexibility in labour markets. It must be remembered that young people at this time of their lives are likely to have limited financial resources. By definition they are out of work or disabled and trying to get into the labour market. In those circumstances they are likely to be considerably discouraged from seeking advice if they are charged for the advice service.
Because they do not have proper information, they will not operate efficiently in the labour market. Charging for advice will make the labour market less efficient. Therefore, in line with the Government's own prescriptions throughout the Bill, it is rational 133 that advice should be available freely to the people outlined in the amendment. It would make the labour market work better.
§ Lord Stoddart of Swindon
My Lords, I should like briefly to support the amendment. Again, I do not wish to repeat the arguments already put forward, but there is perhaps one further argument that can be made.
At present there is a great deal of unemployment among the 16 to 21 year-olds. The great danger is that we lose touch with them. If that happens, many of them will sink into not necessarily a life of crime but into criminal activities through sheer boredom. It is therefore necessary to give them sufficient advice to which they have free access. If the Government take that on board, with the other arguments already adduced in favour of the amendment, they will be helping society in many ways. They will be helping our young people to lead useful lives in a difficult situation and, indeed, may be keeping them out of temptation.
§ Baroness Denton of Wakefield
My Lords, I have listened carefully to all that has been said on this issue this evening and on previous occasions. I do not believe that there is much between us. We are aware of the needs and dangers which the noble Lords, Lord Eatwell and Lord Stoddart, identified and of the concerns identified by the noble Lord, Lord Henderson of Brompton. The noble Baroness appears to agree that it is necessary to draw a line around those for whom there is a statutory duty. The difference between us relates to how that is to be done. As I Indicated at Report stage, there are attractions in what the noble Baroness proposes. We have fully considered the options but on balance feel that it is in the nature of careers services that such an arbitrary cut-off point is not desirable. Career services should, as far as possible, be responsive to and reflect individual needs and circumstances. Determining exactly who does and does not fall within the group in respect of whom there is a duty is also an issue under the current arrangements. The amount of assistance and the period for each individual varies. I believe that that is something on which we agree. Currently, that is clarified in the Secretary of State's guidance, and it will be in future. There are no plans to change the nature of the guidance in this respect. Clients covered by the Secretary of State's duty, and for whom the service must be available free of charge, will include those in relevant education as defined in Clause 44.
When speaking on this matter during Report stage the noble Lord, Lord McCarthy, indicated that there was no definition of the client group for whom the Secretary of State would have a duty to secure services. That is not correct. They are clearly defined as people undergoing relevant education. "Relevant education" is given a specific meaning in Section 8(3). Section 8(l) also clearly states that there is a duty to secure services for those ceasing to undergo relevant education. There is no doubt about who is in, or who has ceased to undergo, relevant education. We have acknowledged that there is a need to clarify how long there is a duty to secure services for those who have left relevant education. Current and future guidance 134 will therefore include people who have recently left such education. In practice that will mean people aged under 21 who have left education, training or employment up to two years earlier and have not settled in suitable occupations. This means that youth training trainees will be covered.
I am sure that I like everyone else in your Lordships' House will agree that the position with respect to those with disabilities is particularly important. As I stated at Report stage, we recognise that for some young people in this category it may take a considerable time for them to establish themselves in the next step in their careers. Consequently, there is no fixed time limit in providing the service to such people. I understand the purpose of this amendment moved by the noble Baroness, Lady David, but perhaps she does not realise it will mean that everyone aged 21 or over ceasing to undergo education will not be covered by the Secretary of State's duty to secure services. I do not believe that that is something she will welcome. It is an example of the difficulty that arises when an arbitrary age limit is stipulated. I hope the noble Baroness accepts that it is our intention by not limiting the duty by age to secure services which will be responsive to individual circumstances and that, as now, the careers service will be available to young people in youth training and the labour market who choose to make use of it for two or more years after leaving education. We will confirm that through the Secretary of State's guidance. As the noble Lord, Lord Eatwell said, it is important for the future of the labour market that these people should not be deterred from receiving advice. I stress that the contracts do not preclude flexible arrangements for services to older teenagers.
As I said in my opening remarks, I believe there is very little between us. We prefer not to draw the line at an arbitrary boundary. I hope that the noble Baroness will consider withdrawing her amendment.
§ Baroness David
My Lords, I realise that the noble Baroness has tried very hard to reassure us but I must say that I am disappointed and I am not completely reassured. Guidance is not enough. We want this to be on the face of the Bill. The age group 16 to 21 is very vulnerable one. These people may have been out of education for some time. They will not just have left. There is no certainty that they will get the advice they need. The noble Baroness said that the Government would prefer not to draw the line. Under Section 9 the Secretary of State shall have power to secure the provision of relevant services. It is up to the Secretary of State. If he or she thinks that services are necessary after the age of 21, it could be put in the contract that they shall be given. We want to be absolutely secure about this vulnerable age group. I should like to test the opinion of the House.
§ 11.45 p.m.
§ On Question, Whether the said amendment (No. 18) shall be agreed to?
§ Their Lordships divided: Contents, 13; Not-Contents, 29.135
|Division No. 4|
|David, B. [Teller]||Lockwood, B.|
|Dean of Beswick, L.||McCarthy, L.|
|Dormand of Easington, L.||Rea, L.|
|Eatwell, L.||Rochester, L.|
|Graham of Edmonton, L. [Teller.]||Stoddart of Swindon, L.|
|Turner of Camden, B.|
|Henderson of Brompton, L.||Wedderburn of Charlton, L.|
|Arran, E.||Henley, L.|
|Astor, V.||Hesketh, L. [Teller.]|
|Belstead, L.||Howe, E.|
|Blatch, B.||Long, V.|
|Brougham and Vaux, L.||Mackay of Ardbrecknish, L.|
|Caithness, E.||Norrie, L.|
|Cox, B.||Rodger of Earlsferry, L.|
|Craigmyle, L.||St. Davids, V.|
|Cumberlege, B.||Skelmersdale, L.|
|Denton of Wakefield, B.||Strathmore and Kinghorne, E. [Teller.]|
|Fraser of Carmyllie, L.||Thomas of Gwydir, L|
|Goschen, V.||Ullswater, V|
|Harlech, L.||Wynford, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 11.53 p.m.
§ Baroness David moved Amendment No. 19:
Page 65, line 35, at end insert:
("(13) The Secretary of State shall make arrangements for the inspection of all services provided in accordance with this section, and shall appoint persons with knowledge and experience in the fields of industry, commerce, education, careers guidance and local government to a National Council which shall receive copies of all such inspection reports.
(14) The National Council, taking account of information presented on the performance of providers of services through inspection reports, shall advise the Secretary of State on all matters relevant to his duties and powers arising out of the arrangements and directions set out under this section.
(15) An Annual Report shall be laid before Parliament by the Secretary of State detailing how he has discharged the duties and powers conferred upon him under this section in the preceding year, providing an outline of his proposed "guidance of a general character" for the coming year (including details of any payments which he has made or proposes to make), and incorporating a summary of the work of the National Council.").
§ The noble Baroness said: My Lords, the purpose of this amendment is to establish a mechanism for quality assurance: that is what we are after. The Secretary of State currently has an inspectorate for the careers service. While the Bill does not guarantee that that will continue, several references to inspections have been made by Ministers. The proposed subsection (13) will ensure that inspections take place. Recognising that the new inspectorate will have a more difficult role in the future because of the expected variety of providers, we need to look at ways in which the relationship between the Secretary of State and providers is changing.
§ Currently, the inspectorate reports to the Secretary of State on how LEAs are discharging their duty. In future, the responsibility for securing service delivery as well as for overseeing the quality of performance will be combined in the Secretary of State herself. In those circumstances, the inspectors will be looking at 136 the decisions and the actions which are the responsibility of their own Secretary of State. That is a fundamental change. We need to be able to ensure that the inspectors can report, fairly and fearlessly, to their employer about a service for which she is now taking direct responsibility.
§ It is no criticism of any Secretary of State to say that it is surely asking too much of any one person to accept both the responsibility for the shape of the service and its delivery, and, at the same time, to exercise impartial judgment about how that responsibility is working in practice. Therefore it is important that inspection reports should all be received by a knowledgeable and independent advisory national council.
§ It is not intended that the proposed national council should be an incestuous body involving merely the careers service providers and practitioners. No, rather it brings together the interests of individuals and of the country. It is therefore not the same as the present careers service consultative group which was established several years ago for the current arrangements which the Bill now seeks to replace.
§ The functions of the proposed national council will be strategic, unlike the role of the consultative group which will undoubtedly be operational in nature. On the proposed subsection (14), we need the national council, as has been emphasised already, not at an operational level but at a strategic level, to advise the Secretary of State from its independent and authoritative position on key issues concerning her duties and powers.
§ While we recognise the repeated and welcome statements by Ministers of separate ad hoc consultations with various individual interests, the explanation offered for the present and proposed consultative arrangements does not address the principal independent and advisory functions on policy issues that the national council alone would perform.
§ In presenting the case directly to the Secretary of State on 17th May, Sir Christopher Ball, director of learning at the Royal Society of Arts, explained clearly the current situation. All supporters of the proposed national council, from across the worlds of education, training, employment and industry, are agreed that it should be advisory in role. The RSA, the Institute of Careers Guidance, the Secondary Heads Association, the National Association of Headteachers, the Association of Principals of Colleges, the National Association of Careers Teachers, and the training and enterprise council movement at large see the national council as a statutory body. We are aware that the CBI envisages a non-statutory national council—that is merely a difference of emphasis in establishing the council. There is no difference of opinion on its function. All are agreed that there should be a national council: that there is a need.
§ Ministers have referred repeatedly to the existence of the careers service consultative group. We understand from a letter from Sir Christopher Ball that arising out of his meeting with the Secretary of State just a week ago, she accepts that impending 137 legislation will inevitably require a review of the role, remit and membership of the consultative group. We agree with that.
§ The focus of the current consultative group is an appropriate and narrow one, specific to the careers service. The proposed national council has a wider strategic range, as I have said. It would encompass the principal functions of the careers service, together with careers education in schools and colleges and other forms of guidance for learning and work beyond education. The consultative group has its own proper, functional role with responsibility for issues of an operational nature. We have already accepted that written summaries of careers guidance will be dealt with in such a way; but the consultative group does not provide the broad strategic overview which the change in legislation requires if we are to maximise the contribution of high quality, impartial guidance, in achieving the national education and training targets.
§ We accept fully the continuing role of the consultative group, after appropriate review, in relation to operational matters affecting careers service contract delivery, but we need a national council. I beg to move.
§ Lord Rochester
My Lords, as the noble Baroness, Lady David, said, my noble friend Lady Seear is sorry that she cannot be here tonight. In her absence I am glad to support the amendment. When a similar amendment was moved in Committee, the noble Baroness, Lady Denton, said that there was a lack of clarity as regards the role of a national advisory council. She asked whether its main purpose was to be quality assurance and inspection or whether it would be concerned with strategic planning. I hope that the amendment makes clear that the proposed council would not itself be responsible for inspection but, taking account of inspection arrangements to be made by the Secretary of State, it would advise him or her on all matters arising out of those arrangements.
Beyond that it is apparent that since the matter was previously discussed by your Lordships a strong consensus has emerged among reputable organisations not only for the establishment of an advisory council but on its principal function. That would include the definition of national quality standards, dissemination of examples of best practice and advice on policy issues. It would not usurp the operational functions of the careers service consultative group. However, in answer to an earlier question asked by the noble Baroness, Lady Denton, it would certainly concern itself with the provision of strategic leadership. Its members would not include careers service contractors as such but would include, among others, people with knowledge and experience of industry, commerce and education.
All that appears to be pretty clear cut. Like the noble Baroness, Lady David, I hope that on reflection the Secretary of State will not wish to be responsible for making careers service arrangements and for monitoring them without benefit of advice from an independent body such as that proposed in the amendment.
§ Lord Henderson of Brompton
My Lords, I too hope that the noble Baroness will receive the amendment sympathetically. I say that partly because of the comprehensive way in which the noble Baroness, Lady David, moved the amendment and also because of what was said by the noble Lord, Lord Rochester. I wish to emphasise that it is important that not merely the Secretary of State but Parliament and the rest of the country should have an audit of what is happening.
That proposal is new and needs to be assessed. The assessment should be from outside the Government. The body would not necessarily be hostile; its membership would be drawn from a wide variety of people who know what is happening and have expertise in this realm. The body would report to the Secretary of State, who would have to summarise its conclusions in an annual report to Parliament. She would also have the power to comment in that report. I do not see that the new initiative can succeed in obtaining the knowledgeable co-operation and consent of all those connected with the exercise, not least the employers in industry, unless a report of those who are monitoring what is happening is laid before Parliament and, therefore, laid before the public in general.
I have no more to say. I hope that the noble Baroness will consider that, unless she keeps the general public with the Government in the policy which they are pursuing on this vital matter of bridging the gap between school and work, then the policy may well fail due to lack of communication.
§ Baroness Lockwood
My Lords, I support my noble friend's call for an independent national council. In doing so, I stress that there will be a number of complementary measures involved in the process of monitoring the work of the inspectors: for example, the performance of the providers and the inspections; the views of both the consultative group and the national council; and the Government's action. In other words, it is envisaged that once the performance of the providers has been inspected and the views sought of the independent and authoritative national council on those inspections, and on the key operational concerns which will have been fed through from the consultative group to which my noble friend Lady David referred, it will fall to the Secretary of State to take whatever action is thought necessary and also to report to Parliament.
The noble Lord, Lord Henderson, referred to it as an audit. It is very important that the Secretary of State should report to Parliament. That would counter any impression that the new service will have minimal accountability and stability. It will provide a means for the Secretary of State to comment, on the one hand, on any problems, weaknesses or needs and, on the other, strengths and examples of good practice which need to be disseminated.
I must say that on this side of the House we have been rather puzzled by the Government's response to this matter so far. I pay tribute to the profession of careers officers because, on the whole, it has been exemplary. The profession has sought neither to fight the Bill by seeking to hold on to the status quo nor to 139 place obstacles in the way of the Government's plans. On the contrary, the profession has supported the central thrust of the Bill and has sought to enhance the new legislation and make it stronger despite the fact that no one has been able to tell us what is wrong with the current arrangements.
When one considers the fact that all the stakeholders, with their wide wealth of knowledge and expertise which they can separately and collectively bring, support the proposal why do the Government not show that they are listening? The profession wants to help. On this side of the House we too want to help to get things right. Surely when head teachers, college principals, TEC directors and the country's leading industrialists, through the CBI, are asking for the same thing, the Government should listen and take note.
I suggest to the Minister that as capable as are her officials and civil servants, they are not head teachers, college principals or the country's leading industrialists. But, with a body of such knowledge and opinion and expertise working with the officials and the Minister, that would be the way to get things right.
Therefore, I believe that we need this council. It would be very valuable. It would be a popular move and I am surprised that the Government are not anxious to take it. In short, it would be a means of helping to ensure that the new service is credible. It might even be a means of establishing what the Government aim to establish in the educational and training field; namely, a world-class service. I hope that the Minister will listen to what is said this evening.
§ Lord Eatwell
My Lords, I should also like to express my support for the amendment which, as I see it, is designed to be a non-contentious extension of a policy which the Government have already implemented elsewhere. I am sure we all agree that it is important that the quality of careers advice provided for the young people of this country should be of the very highest standard. We also agree that that cannot be assured by the operation of a market in advice. By its very nature, such a market is imperfect. Those seeking advice do not know what they should know and they do not realise that they have received bad advice until it is too late.
Therefore, it is agreed by everyone that it is imperative for the effective operation of careers advice that clear standards are set. Moreover, we all agree that those clear standards should be maintained by inspection. The amendment adds the provision that there should be a means of independently assuring the quality of inspection and of guiding the development of that inspection process as economic and social circumstances change.
I said just now that the Government had already used that device elsewhere. In the Further and Higher Education Act 1992, the Goverment thought it vital to place on the face of the Bill a means of providing independent quality assurance in the form of some of the responsibilities assigned to the further education funding council. The council proposed in the amendment would have a similar independent quality 140 assurance role. The Government accepted that that role was necessary in the Further and Higher Education Act 1992. Surely, they will accept that a similar role in like circumstances is necessary here.
§ Lord Stoddart of Swindon
My Lords, as I previously declared in the House, I act as an adviser to NALGO. I was especially pleased to hear my noble friend Lady Lockwood pay tribute to the careers service. Indeed, throughout the debate on the careers service, those who work in it have been helpful in every way.
Many people cannot understand why the changes in the Bill are taking place. Nevertheless, they accept that that is government policy and that the Government intend—as do all governments - to have their way, even if it is late at night and, of course, after curtailed discussion. However, here we have an amendment which offers the Government the chance to help assuage the fears of those people who have been involved successfully in the service over a long period of time. They are worried about the future role of the service and what it will provide.
The amendment seeks the establishment of a council which would consist of people with the expertise to advise the Government on matters arising from the inspection service. There would be no great cost to the Government because the people involved would virtually be performing their duties on a voluntary basis; indeed, it would be an "expenses only" sort of council. Those who served on it would feel that they were carrying out a public service.
I understood from the Prime Minister that we had a listening government; that is, a government who want to listen to people. Here they have an opportunity to prove themselves. Here is an opportunity in this amendment for them to agree to appoint a council of experts and people who are close to, and know the needs of, industry and commerce—the Government, as well as we, are interested in that—to give them advice on the new careers service. I would have thought this, bearing in mind the expensive quangos set up to deal with various other matters, a cheap method of consulting people and listening to people that would be seized upon by the Government.
I hope that the Government will take seriously the views expressed not only from all sides of this House but, as my noble friend Lady David said, from outside the House too. I believe they would gain in respect, and perhaps even liking, if they gave the impression by accepting this amendment that they really did want to listen. The opportunity is given them through this amendment to form a council which would give them good service and good advice.
§ 12.15 a.m.
§ Baroness Denton of Wakefield
My Lords, I remind your Lordships that the Secretary of State will be answerable to Parliament for the services she has a duty to secure. She will have to ensure that through the quality assurance and inspection arrangements she can demonstrate that services are performing to 141 standard and fulfilling the duty she will have under the Act. There is no statutory duty to inspect the current arrangements and there need be none in the future.
The Secretary of State will judge quality with the advice of the careers service inspectorate and the careers service consultative group and has power to consult other appropriate bodies or individuals she may choose. I am pleased to inform the noble Lord, Lord Eatwell, that the quality will be judged against criteria and standards which will be published and which have been the subject of consultation. As I said on Report, the inspectorate includes staff with direct and recent experience of work in careers guidance and work in careers services.
The noble Lord, Lord Rochester, and the noble Baroness, Lady Lockwood, joined the noble Baroness, Lady David, in asking for a national council. We have listened to a range of voices on the subject of a national council, including the Confederation of British Industry, the Royal Society of Arts, the National Institute for Careers Education and Counselling, the Careers Service Heads of Service Group and the Institute of Careers Guidance. We have concluded that a statutory national council looking only after careers service matters would not be welcomed by the wider guidance community and those with an interest in careers guidance. On the other hand, a statutory national council which attempted to cover all guidance interests, including the careers service, would not be appropriate.
It would be difficult for one national body to give particular attention to the careers service which the duty on the Secretary of State will require and at the same time give attention to the wider field of careers guidance.
When speaking on this subject during the Report stage, the noble Baroness, Lady Lockwood, reminded the House that the Secretary of State was meeting with Sir Christopher Ball, Tony Watts of the National Institute for Careers Education and Counselling and Paul Chubb of the Institute of Careers Guidance. I am pleased to report that a most positive and constructive meeting has now taken place and the Secretary of State will write to Sir Christopher.
I join the noble Baroness and the noble Lord in paying tribute to the work of the careers service to date. The aim of the Bill is to ensure that the country receives the best that the careers service offers. At its best it offers a very high standard indeed. However, we believe that we need to focus consultation specifically on the new arrangements and not try to encompass the broader range of interests that may be covered by a body of the kind proposed by Sir Christopher Ball. We plan to use the careers service consultative group which, by nature of its membership of TECs, gives a link to the business world. It will, as now, consult over the arrangements for careers services.
The noble Lord, Lord Henderson of Brompton, raised the question of reporting. As I said in Committee and at Report stage, the Secretary of State for Employment presents to Parliament jointly with the Chief Secretary to the Treasury an annual report which sets out objectives and expenditure plans for the next three years. In addition, it has been the practice 142 of successive Secretaries of State to provide annual reports on the work of careers services. Those reports can be found in the Libraries of both Houses. I can assure your Lordships that such reports will continue to be published.
I can see nothing of value that will be added by imposing a duty on the Secretary of State, and I cannot support an amendment for a separate annual report specifically for the careers service.
I hope that the noble Baroness will accept that that is now the Government's position. I ask that the amendment be withdrawn.
§ Baroness David
My Lords, the Government's position is quite clear, but it is the same as it has been all along. I was astounded by some of what the noble Baroness said. A good deal of it seemed nonsense.
It is extraordinary that, when all the people concerned in industry, education and the careers service itself believe that this would be a valuable contribution to the new situation, the Government can be so obstinate and continue to oppose the proposal. I suspect that it is the civil servants who are pushing them. Head teachers, college principals, TEC directors and the countries leading industrialists are all in favour, and they are not members of the consultative group, and the consultative group is not a statutory body.
I am very glad that tribute has been paid to the careers service. I believe that it is a marvellous service. I have had a great deal of experience of it in my time. It has behaved wonderfully during the course of the Bill. It has not made an undue fuss but has tried to obtain the best it can out of the Bill to help the service in the future.
Of course we want a proper report to Parliament, and I do not believe that merely to have a report from the Secretary of State would be adequate. Although it is so late and we have just had a Division, I feel that I must make the point that I feel strongly about the issue by pressing the amendment.
§ 12.23 a.m.
§ On Question, Whether the said amendment (No. 19) shall be agreed to?
§ Their Lordships divided: Contents, 12; Not-Contents, 28.143
|Division No. 5|
|David, B.||McCarthy, L.|
|Dormand of Easington, L||Rea, L.|
|Eatwell, L.||Rochester, L. [Teller.]|
|Graham of Edmonton, L. [Teller.]||Stoddart of Swindon, L.|
|Turner of Camden, B.|
|Henderson of Brompton, L.||Wedderburn of Charlton, L.|
|Arran, E.||Ferrers, E.|
|Astor, V.||Fraser of Carmyllie, L.|
|Belstead, L.||Goschen, V|
|Blatch, B.||Harlech, L.|
|Brougham and Vaux, L||Harmsworth, L.|
|Caithness, E.||Henley, L.|
|Cox, B.||Hesketh, L. [Teller.]|
|Craigmyle, L.||Howe, E.|
|Cumberlege, B.||Long, V.|
|Denton of Wakefield, B.||Mackay of Ardbrecknish, L.|
|Mackay of Clashfern. L. [Lord Chancellor.]||Skelmersdale, L.|
|Strathmore and Kinghorne, E. [Teller.]|
|Rodger of Earlsferry, L.||Thomas of Gwydir, L.|
|St. Davids, V.||Ullswater. V.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 12.31 p.m.
§ Clause 45 [Careers services: ancillary services]:
§ Baroness Lockwood moved Amendment No. 20:
§ Page 66, line 32, leave out from ("period") to ("relevant") in line 33 and insert ("during which that person continues to provide").
§ The noble Baroness said: My Lords, the purpose of this amendment is to remove the two-year restriction on the supply of goods and services by local authorities. I moved a similar amendment at Report stage and raised a number of questions on which the Minister said that she would write to me. I received the Minister's letter early this evening and I thank her for it. However, it raises as many questions as it answers. For example, the first question that I asked was whether a local authority controlled company would be allowed after two years to make use of local authority goods and services. The Minister replied that a local authority controlled company could be designated as a public body for the purposes of the Local Authorities (Goods and Services) Act 1970.
§ First, I wish to query the words "could be designated". Surely, we ought to say that such a company "would be designated" because there are remote county and rural areas where there might be no alternative services to those provided by the local authority. I believe that we must safeguard those areas and I suggest to the Minister that it should be that they "would be" automatically designated.
§ Further on that, I should like to probe a little as to which local authority companies would be included. I understand that in the Local Government and Housing Act 1989 there are at least five interpretations of a local authority controlled company. First, there is a controlled company at arm's length. Secondly, there is a not controlled company at arm's length. Thirdly, there is a company with majority influence. Fourthly and fifthly, there are two minority interest types of company. That gives us a total of five. Will all the five types of company be in the same position, or will some of them he in a position where they could automatically continue to purchase local authority services?
Secondly, the Minister has given me a definite and affirmative view about premises. She says that premises are not affected by the two-year rule. That is welcome. Thirdly, I asked whether a local education authority and training and enterprise partnership would be subject to the same rules whether the LEA signs the contract or the TEC signs the contract. Here the Minister says that in essence I would be right and that they would be treated differently, depending on who signed the contract. So if one signed the contract then they would be subject to the two-year rule, but if the TEC signed the contract, then they would not be. The Minister goes on to say—and here I am very puzzled—that:
It may depend on the nature of the partnership involved. We would advise potential providers to seek their own legal advice on this matter".
That is pretty outrageous. Here we have a new Bill going through Parliament and all the Government can do is to advise potential providers to seek their own legal advice. Surely the Government should be able to indicate whether or not LEA or TEC partnerships would be caught under this provision.
Fourthly, I ask the Minister whether a local authority would be able to do business with a careers service provider where the business derives from functions retained by the local authority. Again, the Minister tells me:
This may be possible, but it will depend on the nature of the business which is proposed. It may depend on what is proposed and the arrangements the Secretary of State has with the provider".
Again, that is absolutely unsatisfactory. We ought to know what is meant by the provisions under this Bill, and the Minister appears unable to tell us.
My last question was whether it is accepted that there will be some risk to local taxpayers where the local authority is awarded the contract; and whether in such circumstances the Secretary of State will cover any deficit. The Minister says that the Secretary of State,
will be exercising all reasonable care in the placing of contracts and issuing of directions. She will also be monitoring the arrangements to ensure that if there is a potential failure of either the contract or the directions she is able to remedy the situation or make alternative arrangements".
This will all be done at arm's length. But finally, in the last resort, the Minister will not be able to make specific provision to underwrite any deficits either on the part of the contractors or the directed authorities. So the Secretary of State will go so far but no further. I am grateful to the Minister for her reply, but it raises as many questions as I posed previously.
§ The real issue here is: why is there a difference in the way we are treating the careers service? For example, under the Further and Higher Education Act 1992 there is no such provision on local government providing services. Under the 1992 Act colleges, which we might say are in a similar position to the careers service, can continue to buy local authority services—similarly, under the Education Bill that is going through this House at the present time. While on this side of the House we certainly regard the provisions in that Bill as unsatisfactory, nevertheless they provide for grant-maintained schools which will be designated as public authorities to continue to trade at the margins with the local authority.
§ Why is there that discrepancy and that discrimination against the careers service? Is it because the measures are coming from different departments and the Ministers in the departments have not been advised of the differences in the provisions? Or is it because the departments are not speaking to each other and sharing their views? The Minister needs to give many more answers on this question than she has given so far. I beg to move.
§ Baroness Denton of Wakefield
My Lords, I tried to cover the points raised by the noble Baroness at Report stage. I shall now try to extend those answers. 145 First, perhaps I may say that this clause is to allow providers of careers services to be able to use local authorities' administrative, personnel and computer services for a transitional period to help them get established.
Having said that, I emphasise that local authorities exist primarily to perform their statutory functions and trading is not their primary function. The purpose is to extend. If indeed the local authority itself is a provider, there is no limitation on the provision of goods and services. There is a facility whereby it may be possible for such services to be provided to new careers services for a period longer than two years. But the careers services will be in a similar position to grant-maintained schools. I am informed that there is a two-year limit for grant-maintained schools.
Perhaps I may also answer the noble Baroness's query on controlled companies. The designation of a controlled company as a public body bears on the nature of the undertaking. That is determined by criteria established by the Department of the Environment. It means that local authority controlled companies can apply to be designated. As the nature of contracts must be between the parties concerned, it does not seem so unfair, as the noble Baroness would have it, that the potential providers should seek their own legal advice. It is not an area in which one can generalise.
As I said in my opening remarks, the aim of the clause is to allow the transitional period to the providers of careers services to enable them to use local authorities' administrative, personnel and computer services and where possible, as regards the question of premises, that purpose will be extended. But it will not allow the local education authority a licence to trade indefinitely.
I hope that the Government's position on this amendment, which has not changed, is clear.
§ Baroness Lockwood
My Lords, I do not think that the Government's position is quite so clear as the Minister said. The one thing that is clear is that this clause, as the Minister said, is in order to enable new providers, as it were, to come on stream and for the local authority to continue to help them until such time as they no longer need the help of the local authority. That is rather unfair on local authorities who have provided a good service in the past.
The Minister said that the local authority is there to fulfil statutory functions. I thought that the local authority was there in order to provide the services that the local community required. I should have thought that in the context of the career services some of the provisions were necessary and it was necessary for the local authority to provide them.
Neither am I satisfied with the reply from the Minister on the different nature of companies. The nature of the undertaking dictates what category they conic into. We should have more clarification on that point. I am not in agreement with her when she says that providers should have to seek their own advice. Again, there should be much more clarity under the Bill.
146 However, we may have thrown a little more light on the situation in raising the matter again this evening. In view of that, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 12.45 a.m.
§ Schedule 4 [Provisions substituted for sections 1 to 6 of 1978 Act]:
§ Lord Wedderburn of Charlton moved Amendment No. 21:
§ Page 79, line 8, after ("may") insert ("if written consent has been previously signified by or on behalf of the employee and").
§ The noble Lord said: My Lords, Amendment No. 21 concerns a matter which was newly introduced into the Bill at Report stage. With few exceptions it affects the rights of all workers. When the Bill is enacted the right will apply to every worker who has worked for eight hours a week for one month.
§ It is agreed on all sides that the right is an important one. It is the right to have written particulars of the terms and conditions of the contract which will fulfil the objective of what is sometimes called "greater transparency", but which is perhaps more easily stated as making the employment terms clear both to the employer and employee and avoiding misunderstanding.
§ For 30 years we in this country have had such a right on the statute book. It was first enacted by the Conservative Government in 1963. I have no hesitation in saying that on this matter our system has been in advance of many systems on the Continent. The problem which has been thrown up at this last stage is whether the employee can be compelled to receive the written particulars by instalments.
§ I appreciate in everything that I say, that the Government have put into the Bill a requirement that in the instalments the most important terms are to be put together in what is called the "principal statement". Nevertheless, a large number of terms could be issued in bits and pieces which would make it extremely difficult for many employees to know precisely where they are.
§ My noble friends, and indeed the noble Lord, Lord Rochester, queried the wisdom of what was being enacted. I stress that this is a provision which will apply to almost every employee in the land, and which we have had some three weeks —18days—to consider. Instalments are not required by Directive 533 of 1991. As I understand it, they were included by the Government after discussions with the CBI or, at any rate, with the noble Lord, Lord Mottistone. Indeed, having studied the matter since the debate on Report, I doubt whether it is clear that the directive that Schedule 4 purports to implement really allows of instalments in the matter. This is a late stage at which to say that. I am driven to say it now because the matter was not raised before Report or while the Bill went through your Lordships' House and the other place after Guy Fawkes day 1992, when it was conceived.
The directive states in Article 3:
The information referred to in Article 2(2)"—
those are the important matters—
may be given to the employee, not later than two months after the commencement of employment, in the form of: (a) a written contract of employment; and/or (b) a letter of engagement; and/or (c) one or more other written documents, where one of these documents contains at least all the information referred to in Article 2(2) (a), (b), (c), (d), (h) and (i)".
which are, again, important matters. That article does not say that the two or more written documents can be given to the employee at different times. It seems that the Government have gone out on a limb. I know of no authority for the view that this is permitted under the article. Even if they had cleared the matter with the Commission it would still be possible for the court to take that view. We have seen already in the Katsikas case that the court has a clear concept of the fundamental rights of employees. It is quite possible that the court will take the view that the three choices of a written contract of employment, which is quite different from written particulars; a letter of engagement, which again is quite different from written particulars; or one or more other written documents, which are the written particulars, can necessarily be dribbled out to an employee on different occasions during the two months.
§ The Article 3(2) requirement for the employer to sweep up anything that has been omitted at the end of the two-month period by what is called a written declaration—which plays the role of sweeper in the directive's team—is not necessarily consistent with instalments. Indeed, it seems to say that where you have failed to give particulars on one occasion there must be a sweeping up at the end. That is not the Government's scheme of things by instalments. Nor is it possible to see why instalments are a good idea. Instalments of pieces of paper are more easily lost. They increase the amount of paper.
§ In discussions on this matter I have been presented with such a large number of doubtful situations that I ask the Government to allow the employee at least to have the right to consent or otherwise to instalments of this kind. I cite just one of the many possible situations. Take the case of an employee who is hired on 1st January for eight hours a week. On 5th January an instalment comes from the employer. (I pause to say that that relates to a contract already made which presumably the court will have to interpret.) The instalment says that the notice period is two weeks. At the end of the month a principal statement is issued, part of which incorporates a collective agreement which we hope, with the next amendments, will be accessible at the place of work. Those collective agreements state different terms as to notice of termination of the contract. The employee now wishes to give notice. How much notice should be give? That is not just the kind of problem that one puts into examination papers with the magic word "discuss" after it. It is a very real situation.
§ The answer is unclear. For example, it is not clear that the provisions of Section 4 relating to changes in the terms and conditions in the written particulars apply at all. This is not a change but an inconsistency. There is no internal reference in the two bits or pieces of the instalments. That is a very simple illustration. It 148 can get much worse if one posits a situation that an employer may I suppose find very convenient in a badly-run firm. I do not think that well-run firms will run into difficulties on this issue. It is the bad firm and bad personnel officer who will get into difficulties and start to give written particulars of employment, on which all rights depend on both sides, in five, 10 or more instalments and pieces of paper. That will be the ocean of paper which I have suggested on many occasions everyone wants to avoid. Looking again at the directive, I suspect that that situation is avoided by not allowing the procedure that the Government have adopted—a procedure which is highly unsatisfactory, especially from the point of view of the employee.
§ Therefore, I suggest that if the employer wants to do it—my amendment will not ban instalments in any way, though I think they are a bad idea—he should make it clear to the employee he has hired, admittedly on a piece of paper, though a small one, that he will give the employee instalments if he consents. If an employee wants his written particulars and rights set out down in a piece of paper that he can take home, no doubt with reference to other documents, he should have that right. I believe that after a period most personnel management officers will come to see that this is a more sensible way of doing things, with a few exceptions, in which cases they can take the consent of their workers.
§ Lord McCarthy
My Lords, we do not want to debate this matter at any length but we do want to say that my noble friend Lord Wedderburn has a serious and significant point. Whether or not the Government want the solution advanced by my noble friend is another question. Perhaps they do. We think they should. But they should, whether they do or not, take on board the problem. This is another example of something which has somehow got into the Bill at the last minute. We do not know whether there have been full consultations. We do not know whether the TUC has been consulted. What we know is that the more we look at the way it seems to be going to work, the more worried we are.
The Bill, it is true, says that there will be a number of items in the employment particulars. They will be in the principal statement. But there will be many others—the scale of remuneration; the intervals of remuneration; the hours; sick pay; notice; the collective agreement details. All these points can be dribbled out, as my noble friend said, in certain subsequent instalments. Have the Government thought whether there is to be any limit to the number of instalments? How do they feel the various bits that are not in the principal statement should be dribbled out? It looks to us like a most unsatisfactory development. We believe that they ought to think again.
§ Baroness Denton of Wakefield
My Lords, as the noble Lord, Lord Wedderburn, rightly pointed out, the provisions enabling employers to provide the written statement in instalments were introduced the last time we debated this Bill on Report. We made the change to help employers administer the requirements. We were persuaded by the arguments of my 149 noble friend Lord Mottistone that the requirement to provide all the information in a single document was unnecessarily bureaucratic and would make the administration of the provisions more cumbersome and difficult than necessary.
We do not believe that this provision in any way detracts from the employee's right. In many cases it will enable individuals to receive information earlier than they would otherwise have done. The employer will not need to wait until he has assembled the full set of information before providing a new employee with any of it. In all cases, however—this is the limitation that the noble Lord, Lord McCarthy, looks to—all the information will have to be provided by the end of the two-month period.
The noble Lord, Lord Wedderburn, raised the issue of the relationship with the directive. The EC directive clearly contemplates that the written statement may be given in the form of several separate documents. As I explained, it requires only that certain specified particulars be included in a single core document. The Government are fully committed to meeting their obligations under the directive. The provisions in the Bill will not only achieve that but in some respects will go further.
The noble Lord suggests that where an individual sees advantage in this he should be able to agree to it but in other cases it should not be imposed on him. The provisions have been criticised on occasions—and, indeed, again just now—for the amount of paperwork they may require. Here we have an amendment which seeks to add to it. Every new employee would be given the choice of receiving information as soon as it is available or waiting for perhaps two months until all the different items are ready and receiving them all together. Everyone who chose the former would have to write to his or her employer. Employers would not supply the information until they had written permission, and would have to keep records of who had written and who had not. I cannot agree that this elaborate procedure is necessary or helpful, and I hope that the noble Lord will not press the amendment.
§ Lord Wedderburn of Charlton
My Lords, if I took the precedent of my noble friends as to the importance of the matter I would test the feeling of the House. I shall not do so. The noble Baroness spoke of the directive allowing several documents, which is absolutely right. I do not think that she spoke of several documents on different occasions, which is not mentioned in the directive at all. However, whatever the directive says, the schedule is now a terrible mess. It changed in enormous proportions in some respects in the other place. The Government have never been clear as to exactly what they want, although, of course, they want to implement the directive. I now hear that they were persuaded by the noble Lord, Lord Mottistone. If he were in his place I would express a view as to what his persuasion amounted to, but as he is not, I shall let it pass. It is really not based on sensible management practice. I believe that managers, above all others, are going to have a terrible time with this legislation. It is a terrible mess. Given that, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 1 a.m.
§ Baroness Denton of Wakefield moved Amendments Nos. 22 to 25:
§ Page 80, line 28, after ("or") insert (", subject to subsection (2A),").
Page 80, line 31, at end insert:
("(2A) A statement under section I may refer the employee to the provisions of a collective agreement under subsection (2) (b) if, and only if, it is an agreement which—
§ Page 82, line 20, after ("or") insert (", subject to subsection (3A),").
Page 82, line 23, at end insert:
("(3A) A statement under subsection (1) may refer the employee to the provisions of a collective agreement under subsection (3) (b) if, and only if, it is an agreement which
§ The noble Baroness said: My Lords, I am happy to bring forward this group of amendments, which fulfil a commitment made to the noble Lord, Lord Wedderburn, at Report stage. The amendments provide that where, either in the written statement of employment particulars, or in a subsequent statement of change, details of notice entitlement are given by reference to a collective agreement, then that agreement must be one which the employee has reasonable opportunities of reading in the course of his or her employment or which is made reasonably accessible to him or her in some other way. These are modest changes which have the helpful effect of ensuring greater consistency in the provisions concerning the use of reference documents, and I commend them to the House. I beg to move.
§ Lord Wedderburn of Charlton
My Lords, I am grateful to the noble Baroness. At the last gasp we have an improvement to the Bill which I suppose testifies to something about our procedures. I am grateful.
§ On Question, amendments agreed to.
§ Schedule 5 [Employment protection in health and safety cases]:
§ Viscount Ullswater moved Amendment Nos. 26 and 27:
§ Page 86, line 25, after ("(1)") insert ("(read with (2) and (3))").
§ Page 86, line 29, after ("(1)") insert ("(read with (2) and (3))").
§ The noble Viscount said: My Lords, with the leave of the House, I should like to move Amendments Nos. 26 and 27. They were spoken to with Amendment No. 10. I beg to move.
§ On Question, amendments agreed to.
§ Schedule 8 [Consequential amendments]:
§ [Amendment No. 28 not moved.]
§ Viscount Ullswater
My Lords, I beg to move that the Bill do now pass. It is only a little over two months since the Trade Union Reform and Employment Rights Bill had its Second Reading in your Lordships' 151 House, yet in that short time a number of significant changes have been made to the Bill, as well as many more smaller changes which will also improve it.
The Bill has grown by no fewer than eight clauses in your Lordships' House. A number of these new clauses were welcomed by noble Lords on all sides of this House. Clauses 39 and 40, for example, on which public consultation was held early in the year, and which will provide that individuals' identities may be protected in industrial tribunal and Employment Appeal Tribunal cases involving sexual misconduct, was welcomed by many noble Lords. I am pleased to say that these provisions were improved by the acceptance of amendments tabled by the noble Baroness, Lady Turner, one of which has the distinction of being accepted not only verbatim, but also sight unseen.
Clause 41 should also not go unmentioned at this point. The suggestion that there should be additional powers to restrain vexatious proceedings in tribunals was advocated with great enthusiasm and vigour by my noble friend Lady Gardner of Parkes. We were pleased to act on her suggestion in this area.
Your Lordships also accepted new Clause 38, providing that individuals, supported by proper legal advice, may opt out of their right to bring a particular case to an industrial tribunal once they have reached a settlement with their employer. I know that this subject had the support of many noble Lords, among them my noble friend Lord Mottistone, who has spoken so eloquently throughout our debates on behalf of employers in general and the CBI in particular.
Your Lordships have added a number of other important provisions to this Bill, which will improve the rights afforded to men and women at work. When this Bill becomes law all employees, regardless of their period of service or hours of work, will be protected against unfair dismissal for the assertion of a statutory right. Most employees will be entitled to receive an itemised pay statement. And employment protection legislation will be extended to the armed forces.
The improvements to the Bill made in your Lordships' House are not confined to those significant issues. Numerous smaller amendments have been accepted, which will improve the drafting and the sense of the Bill and make it ultimately a better piece of legislation. By my reckoning a total of 84 amendments have been made to the Bill since it entered this House. A significant number of those—some 20 amendments—were put forward by, or drafted at the instigation of, noble Lords on the Benches opposite or the Back Benches on this side of the House. Their variety and scope testifies to the close and careful scrutiny that your Lordships have given the Bill.
I would convince no one though were I to claim that as the Bill leaves this House, noble Lords are in agreement about all its merits. Parts of the Bill have been scrutinised closely, criticised, and debated vigorously, and that is as it should be, for these are matters of great importance. Only today we have debated the Government's new clause which amends 152 the law on action short of dismissal as set out in Section 146 of the 1992 Act. We are not in agreement across the House about the need for an amendment of this nature. The Government remain convinced that it is right to clarify the law in this area. It was right too, though, that the matter should be debated fully by your Lordships before entering onto the statute book.
The same is true of the abolition of the wages councils. The proposal has come under very close attention, as it should, for it is one of the greatest importance. The Government remain convinced that abolition will improve the operation of the labour market and assist in the creation of new jobs.
Many noble Lords—far too many to mention Individually—have assisted in our debates and deliberations on the Bill. I should like, however, to pay tribute to particular noble Lords and noble Baronesses who have made extensive contributions to our proceedings. On the Benches opposite, the noble Baroness, Lady Turner, and the noble Lord, Lord McCarthy, have covered the full subject matter of the Bill with great diligence and determination. And if any of us thought that news of the resignation from the Front Bench opposite of the noble Lord, Lord Wedderburn, would mean that the House might lose his very close scrutiny of our proposals, we were soon proved wrong. The noble Lord, Lord Rochester, and the noble Baroness, Lady Seear, have also contributed valuable insights and comments to all deliberations, in both cases from a position of deep knowledge and concern. On the Cross Benches the noble Lord, Lord Henderson, in particular has also contributed valuable insight and knowledge to our discussion of employment rights. On this side of the House, I should like to pay particular tribute to the contributions made by my noble friends Lord Mottistone and Lord Swinfen, which have elucidated and enlivened our debates. Finally, I should like to give special thanks to my noble friend Lady Denton, without whose unfailing and invaluable support my task would have been infinitely more difficult. I beg to move.
§ Moved, That the Bill do now pass.—(Viscount Ullswater.)
§ Lord McCarthy
My Lords, I am not certain that the House has ever considered the Third Reading of a Bill at one o'clock in the morning, but I suppose that we have to have records, and this must surely be nearly one of them. Late though it is, we feel that we must make a few swift points about the Bill.
The Bill is the most extensive and far-reaching of the eight sons of Frankenstein. It is not as fundamental as 1981; not as invasive of union autonomy as 1984; not, perhaps, as one-sided as 1986 so far as concerns the worker; but the biggest, covering the widest ground. The essential paradox of the Bill is that the bits the Government have been forced to do are the good bits of the Bill, and the bits that the Government have wanted to do are the bad bits of the Bill.
There is not much more to be said tonight about the good bits of the Bill. We tried to improve what was there on maternity relief; we tried to improve and include something on maternity pay; we tried to improve what was said about transfer and redundancy 153 rights; and we made a number of small advances. We would still argue that the good bits in the Bill are not good enough, and that in a number of cases it imperfectly implements EC directives. We would still argue that the Government will have trouble in the European Court with the good parts of the Bill.
So we turn to the bad parts of the Bill. We have tried to do something about Part I relating to trade unions. I shall deal with that in a moment. As regards Part II we have had arguments about wages councils. We debated that issue and I do not want to cover old ground. We tried to concentrate centrally on what the Government want to do to the careers service.
We were singularly unsuccessful. We made four basic criticisms of what the Government wanted to do about the careers service. First, their proposals were not based in any criticism of the existing set of arrangements. No one came along and told us, as they should have done, that the existing careers service was failing the nation. There were no criticisms; the Government just wanted to change the service. Secondly, the Government gave us no alternative structure, a set of improved objectives or a set of higher standards. We were merely told that persons of any other description would run the service in future.
Thirdly, we were never told who would be responsible for running and monitoring the service except the Secretary of State. Tonight we tried to improve that aspect of the Bill by proposing the introduction of a national council. We had tried before and we tried again. But the Government were not interested in who would be responsible for running and monitoring the service except the Secretary of State. Fourthly, we received no guarantee that there would be available as much money to run the service as there is now. No promises were made about the resourcing of the service. Therefore, we made no advances on what the Government intend to do about the careers service.
Finally, I turn to Part I relating to what the Government wish to do to trade unions. There are three points to stress. First, the Government wanted to come, after a whole series of previous sons of Frankenstein which seriously curtail the right to strike and the autonomy of trade union government, and have introduced all kinds of financial liability on to trade unions. We must point out that each time the Government come forward with another son of Frankenstein they do so on top of many other measures. I argue that with the single exception of 1982, this legislation is the most radical, far-reaching and least justifiable that the Government have introduced on the trade union movement. The Bill embodies numerous restrictions on the autonomy of trade unions of an unprecedented kind. They are unknown in other countries and in similar organisations.
I argue that there are seven major degrees of uniqueness which the Government ask us to accept about the trade union movement. First, that trade unions have no right to receive from the governing body of unions in amalgamation cases the kind of independence, responsibility and freedom which, for example, companies have. They have the strange affair 154 of the double envelope. Secondly, there are precise and comprehensive regulations about who unions can admit and expel. No similar restrictions are placed on professional associations and voluntary organisations of all kinds. Thirdly, trade unions have a legal duty to finger their members who may be contemplating a breach of contract. No similarity or parallel exists in any other organisation.
Fourthly, trade unions face the threat of injunctive action by third parties, including employers, who suffer no measurable damage whatever. There is no parallel with the kind of impost and responsibilities under that heading which are placed on British trade unions. Fifthly, they have limitations on their rights to collect subscriptions—subscription income by agency —which affects no other body of a similar kind. Sixthly, a system of automatic disqualifications and fixed penalties are imposed upon their officers. Finally, they must supply their members with details of their emoluments and officers' salaries, which does not appear in legislation affecting any other similar group.
Therefore, there are seven different forms of uniqueness. We have asked the Government over and over again at every stage of the Bill what it is about trade unions which makes them so unique that the seven different degrees of uniqueness are imposed upon them. Why are no such measures imposed upon companies, clubs, professional and voluntary organisations or on employers' associations? Why is trade unionism so unique that such provisions must be applied in this country which are not applied in other countries, not to Lloyds, not to clearing banks or political parties but only to trade unions?
The Government have given us a number of answers. The noble Viscount said on 16th March that unions and companies are two completely different beings. Therefore, the laws which govern them are two completely different laws. The noble Baroness, Lady Denton, said:Attempts to make comparisons between company law and trade union law are neither apt nor useful … unions and companies are different organisations, with a different legal status and different relationships with their members or shareholders—their subscriptions are membership payments and not investments".—[Official Report, 16/3/93; cols. 1421 and 1422.]The noble Lord, Lord Boyd-Carpenter, who unfortunately is not in his place said:We are not concerned with joining a club. Generally the question is whether a club will accept the candidate. All I say is that it is wrong for the law to intervene and deny, in the case of a trade union, the right of an individual to join the one that he wishes to join".—[Official Report, 18/3/93; col. 1567.]On Report the noble Viscount, Lord Ullswater, said that the law relating to trade unions and the law relating to companies is quite different, is quite distinct and needs to be treated differently.
We are never told what it is about trade unions which makes them so different. We are told only that they are different. I said before that either they are uniquely powerful, which is nonsense, or they are uniquely corrupt, which the Government do not suggest. Therefore, it must be that trade unions are 155 disliked by the Government. That unique dislike on the part of the Government is clearly embodied in the Bill and that is why we oppose it.
§ Lord Rochester
My Lords, as the noble Viscount, Lord Ullswater, said, it is a long time—I make it nearly three months—since the Bill received its Second Reading. On that occasion I said that although a case could be made out for some of the individual proposals in Part I—indeed, on a provision concerning the election of union executive committees my noble friends and I voted with the Government—in our view many of the proposals had more to do with persisting in a policy which although appropriate for the early 1980s today savoured too much of continuing to knock trade unions when they no longer offer any serious threat to the well-being of our society.
I said that some of the measures smacked of mean mindedness and would do nothing to encourage co-operation between management and employees which was so badly needed if economic recovery were to be achieved and sustained. That remains our view; for example, Clause 5 provides that voting papers for a union merger ballot, unlike that which happens in the case of companies, may not be accompanied by any other material; and Clause 7 phases out government funding of union ballots.
As the Bill has progressed through its various stages, we have come to feel that the Government are open to a more serious charge—namely, vindictiveness—even to the point as I said earlier today, of seeking to undermine what we see as the right of people to combine together and ultimately, if the need should arise, to withdraw their labour. That charge has been made particularly by my noble friend Lady Seear in relation to clauses in the Bill dealing with the organisation of industrial action.
That anxiety has been increased greatly by the manner in which the Government decided to introduce their amendment limiting the right of employees not to have action short of dismissal taken against them by employers to deter them from being union members.
The conflict between the freedom of the individual and orderly industrial relationships was evident in the debates on Clause 13 as to whether the right to join the union of one's choice was outweighed by the need to safeguard single union agreements. The noble Viscount, Lord Ullswater, held that union membership was a matter for union members and union recognition a matter for employers. Our fears remain that, in practice, the two matters will prove to be inseparable and that inter-union disputes will multiply at the expense of employers and the economy.
It is significant that it was the noble Lord, Lord Mottistone, briefed by the CBI, who was most persistent in his efforts to mitigate the worst effects of the right to bring legal proceedings given under Clause 21 to individuals deprived of goods or services through unlawful action. We continue to fear that, in the highly charged atmosphere of major disputes, 156 attempts to engage in vexatious legislation may make the speedy resolution of disputes by management and unions more difficult.
At least until today, the most contentious clause of all has, of course, been Clause 34 which abolishes wages councils. The Government have given no satisfactory explanation as to why they made no reference to the matter in their election manifesto last year. They have produced no convincing evidence in support of their view that wages councils destroy jobs. Moreover, they had no answer to the question posed by my noble friend Lord Russell as to how they could logically claim that they believe in a free market and yet, at the same time, allow wages to fall while the state, in effect, subsidises those wages through increased expenditure on social security benefit. At the end of the debate on that subject on Report, I was left with a clear impression that the Government had won the vote but had lost the argument.
I believe that the Bill is out of keeping with the feelings of the British electorate. The Government's obsession with so-called trade union reform may even have contributed a little to the treatment meted out to them in the Newbury by-election and the county council elections two weeks ago. If so, I can only hope that they will, belatedly, learn a lesson for the future. They do not seem to have learned it yet.
However, I should like to end on a more harmonious note. Strong views were expressed on both sides of the House during the passage of the Bill. But, throughout, I have admired the composure, the courtesy and the even-tempered way in which the noble Viscount, Lord Ullswater,(ably assisted by the noble Baroness, Lady Denton) steered the Bill through its various stages. I should also like to congratulate the noble Baroness, Lady Turner, the noble Lords, Lord McCarthy and Lord Wedderburn and, indeed, the noble Lord, Lord Mottistone, on the valuable contributions that they, too, made to the debates. This is a civilised place, and I am glad to be a Member of it.
§ Baroness David
My Lords, it is a matter of very great regret that Clauses 44 and 45 which deal with the careers services appear at the end of such a very long Bill and that the debates concerning them have taken place on each occasion very late at night when only a handful of noble Lords have been present. Yet the future of the careers service has attracted as much concern and interest among the many employer and education organisations as any other part of this long and important Bill. To all intents and purposes, the new legislation appears rather obscure and innocuous. But what is clear from it is that, during the next few years, the existing careers services throughout Britain —that is, about 120 of them—will be involved in an enormous upheaval.
In implementing the new legislation, it appears that the Government are committed to experimenting with a range of new and untried organisations in the provision of the new careers services. That being the case, Members on this side of the House would urge Ministers to undertake any such experiments with very great care.
157 We fully accept that the world around us is changing fast and that there is a continual need to review all our systems and structures. Indeed, in a civilised society it is important that we do so. But as the legislation concerning the future of the careers service is implemented, we believe that there is a real possibility that things could go badly wrong. Far from seeing the raising of standards and high quality services everywhere—which the Government say they are seeking—we could so easily witness very much the opposite; for example, contracts being given to organisations without the skills, knowledge or professional background which are so vital to enable this important service to be effective.
Of course, the real losers in such a failed experiment would be the young people and others in the community needing to make use of the new services, not to mention the considerable consequences to the nation's economy at a time when improved standards are so badly needed in every quarter. We beg the Government not to throw the baby out with the bath water.
As has already been said in this House and elsewhere, no one has been able to tell us what is wrong with the current arrangements and why it is not possible simply to repair any deficiencies and build on the solid foundation which has been established over 20 years or more.
In 1990 there was a much publicised Employment Department review of careers services in Britain, generally referred to as "The Bruce Review". Mr. Bruce's report was never published. Its findings and recommendations were withheld from public view. But it is widely believed that Mr. Bruce was rather impressed by what he found. Certainly there appears no evidence to show that he, or for that matter the public at large, has any significant grounds for harsh criticism of careers service provision as it currently stands.
Since the publication in 1991 of the Government's White Paper, Education and Training for the 21st Century, which in Chapter 7 set out its plans for the future of the careers service, the majority of careers services in Britain have voluntarily formed useful and effective partnerships with their local Training and Enterprise Councils, taking themselves closer to employers exactly as suggested by the Government in the White Paper. Very many of them have made significant improvements to their operation as a result of this development. We would urge the Government to look more closely at these partnerships and give them time to establish themselves fully. It would seem sensible to build on their success.
Finally, I should like to say a few words about the staff of the existing careers services and the careers guidance profession itself. It is quite obvious to us all how positively they have responded to the central thrust of this Bill, in spite of the fact that their existing services as they have known them are under very great threat. I am glad that many noble Lords paid a tribute to them when we moved an amendment on the national council. Far from adopting an obstinate or negative stance, they accept that, amidst so much change in the worlds of education, training and 158 employment, they must change too. Their professional association, the Institute of Careers Guidance, has sought to focus its attention on the importance of securing the highest quality of provision while seeking to protect the interests of the individual consumer, which Ministers must agree is to the institute's very great credit. It is, of course, what their plea for a national council, supported by all the major employer and educational organisations, is all about. From all sides of the House there has been encouragement to the Government to establish by statute this national council in order to ensure that in Britain we shall truly have a world class careers service. That call has not been heeded.
We cannot begin to understand why, with all the problems that the Government have acquired for themselves in recent times, they choose not to listen when the community—in this case both the employer and the education community—speaks with one voice. It is crucial that representatives of the business and education sectors at the highest levels have a full involvement in the development of the new careers services. And what a powerful motivating factor the establishment of a national council would be to the profession! There is, of course, still time to respond. I ask the Ministers yet again to think about a national council as that concept is popular in so many quarters, though not at the moment with them.
§ 1.30 a.m.
§ Lord Stoddart of Swindon
My Lords, what has been quite remarkable about this Bill is that it has been considered during the day and in the long watches of the night. It has been examined in great detail and many amendments have been tabled. The Government have listened but they have taken no notice and as far as I can see, after all the work that has been done by my noble friends, the Government have accepted one small amendment.
In his opening remarks the noble Viscount, Lord Ullswater, quite properly paid tribute to my noble friend Lady Turner of Camden and to my noble friends Lord McCarthy and Lord Wedderburn. He also paid tribute to the noble Baroness, Lady Seear, and to the noble Lord, Lord Rochester, all of whom in their own way are experts on these matters of trade unions and labour relations. We have two academics, a full-time senior official and personnel directors. None has been listened to.
Wide experience and considerable expertise have been at the disposal of the Government throughout the consideration of the Bill. The Government came forward with the Bill and decided that they were right in everything they put forward. They ignored the experience that was available in this House. They failed to accept any reasonable amendment. That is shocking in a House which should pride itself on a certain amount of independence and real debate—not debate which has been finalised by severe whipping. I find it unfortunate and surprising that the expertise available has not been heeded.
I am a trade unionist of very long standing. I joined a trade union when I was 16, which is a long time ago. I have been involved in the trade union movement 159 from that time onwards one way or another. Bearing in mind the work that the trade union movement has done over a long period, sometimes not very well and sometimes badly, but generally with the best will in the world and with the aim of assisting its members, it is a great pity that to a certain extent the Government have slandered the movement. They have certainly been vindictive in many senses, as the noble Lord, Lord Rochester, said.
What could the reason possibly be for insisting that trade unions, alone among all organisations, will be obliged under the Bill every three years to give authorisation to have subscriptions deducted from their members' wages? It is only a small point. But why on earth do the Government come forward with such a proposal unless it is vindictiveness or because they have some hidden motive? Why do the Government bring it forward in a Bill unless their design is to undermine the trade union movement?
I endorse everything that my noble friend Lady David said about the careers service. Here again is a case in point. Many ideas were put to the Government which would have improved upon what they themselves proposed. Again, there was no response. The Government were incapable of seeing that a great many people were trying to help. The ideas which came forward were rejected out of hand. It is very sad that when so much expertise has been available the Government have not seen fit to take advantage of it to improve the Bill.
§ Lord Wedderburn of Charlton
My Lords, I wish to make two points by way of postscript. I shall make no oration on seeing a Bill pass, which, in my view, is a very sad occasion. It is a Bill on which I hope another place will take a view in order to modify the two points which are wrong with it. At bottom the measure is a bad one. It is not even like a curate's egg. The good parts, when one finds them, are often defective. Although the Bill implements a number of Community instruments it is poor in its imagination. Authoritarian measures are frequently limited by a lack of imagination. The debate on the careers service illustrated that point.
Secondly, the Bill continues its attack upon workers' rights, their freedom of association, the autonomy of their organisations, and the organisation internally and externally in terms of membership and its defence of members against the employer in an action short of dismissal. As the noble Baroness, Lady Seear, said, freedom of association is so dented that it appears that the Government wish to do away with trade unions. It hardly needs to be said that that fundamental right to withdraw labour and withdraw employment on some reasonable terms is now connected with a web of such restriction that the withdrawal of funds will attempt to wipe it out.
There is a report that when in 1924 the Italian Carta di Lavoro was going through the government that then existed, somebody said, "It's not so much the authoritarian nature of the measure. The real defeat is in watching the authorities enact it without understanding just how authoritarian it is".
§ Baroness Turner of Camden
My Lords, before the Bill leaves this House, I should like to make a few comments.
When we debated the Bill at Second Reading, I said that it was a truly awful Bill and nothing that has happened since then in Committee or on Report has unfortunately changed my view. We have done our best from these Benches and with the support of noble Lords from other Benches to try to effect some amendment or to get the Government to change their mind. We have had little success on the main thrust of the Bill. I regret to say that, because the Bill which now leaves this House will do little to improve employment rights. On the contrary, many workers will find themselves worse off. In addition, their scope for collectively seeking improvements will have been disgracefully impaired by a Government who claim to offer choice but who do not do so unless one has enough money to make one's own choices anyway.
Further constraints have been imposed upon trade unions as though they were the main obstacles to employment protection rather than the reverse. The Bill's intention is to make it more difficult for unions to collect their subscriptions from members by imposing the requirement that check-off arrangements should be subjected to a three-yearly check. Quite clearly the Government's hope is that many employers will not wish to be bothered with this and will either refuse to embark upon such arrangements or will terminate agreements where they exist.
The Government not only wish to interfere with union cash flows, they also want unions to spend what money they have. They want unions to spend it on postal ballots even though it is acknowledged that workplace ballots have a higher participation rate. Those are no longer to be permitted. Instead much more costly postal ballots must be run and must be paid for wholly by the unions, since the arrangements whereby application may be made for public money are to be ended. Indeed, they are already being phased out. Therefore there will be no more public money for ballots about industrial disputes, for leadership elections, or on trade union mergers or amalgamations. In the latter case, just to make it as costly as possible, unions will not be able to include a recommendation with the ballot paper. They can make recommendations, of course, but in a separate envelope with separate stamps and, of course, at double the cost.
At Committee and on Report we have tried to make those provisions slightly less vindictively one sided, but unfortunately we have failed. I can only hope that, as often happens in human affairs, an unjust and inequitable policy will end up having the opposite effect from that intended. The Government plainly wish to marginalise the trade union movement. But the provisions about check-off will compel the unions to campaign for membership in a way that they may not have had to do before. That, combined with the effect of the Government's economic policies, may well result in unions emerging from this decade with rather more members and in a stronger position. I personally hope that that will be so.
161 The new provisions about industrial disputes take the Government very close to outlawing dispute action altogether, as my noble friend Lord Wedderburn said. Yet, of course, the right to withdraw labour is upheld in all democratic states and is enshrined in ILO conventions which the UK Government have ratified.
One of the most objectionable features of the Bill which we have repeatedly tried to amend without success is that which requires the union to identify twice to an employer the members of his workforce who are likely to be involved in a dispute. Again, I question the necessity for that provision in the Bill.
As if that were not enough, we have the clause which provides a right for members of the public to sue in a so-called unlawful dispute and also which provides material assistance via a new commissioner to enable them to do so. The clause aroused much opposition not only among trade unions. The CBI and the Institute of Personnel Management do not like it either.
Again, perfectly reasonable amendments designed to ensure that individuals should have to demonstrate at least an entitlement to the goods or services affected by a dispute were rejected, as was the proposition that people claiming legal assistance under the clause would have to satisfy the same criteria as those seeking legal aid in other more normal cases.
The Government have made it clear throughout that their philosophy is basically an anti-collective one. They are against collective bargaining; they believe in individuals bargaining for themselves. The Government's idea of protection for workers is protection against the very organisations that they have created themselves and have voluntarily chosen to join. Hence, it is an employee's right in the Bill not to be told what his union recommends about a proposed merger with another union. It is an employee's right not to be allowed to have deductions from his salary for union subscriptions to be made on a continuous basis, although it is all right for charitable donations and welfare clubs. It is an employee's right in the Bill to be put in a position where his name could be notified to an employer, when all that is being done is that he is being supplied with a ballot paper in a potential dispute.
However, perhaps the clause in this Bill which until this afternoon gave rise to the most debate and, indeed, dismay, is the clause which abolishes wages councils. The House will know that this aroused opposition from Peers in all parts of the House. We have sought to remove the clause from the Bill and, failing that, have asked that there should be a review before abolition. Sadly, we failed. We shall thus have 2.5 million workers, often the most vulnerable and poorly paid, without any kind of wage protection at all. There will be nothing to prevent employers from cutting wage rates that are already too low. In times of high unemployment, people are prepared to work for sweat shop rates, without creating too much fuss about it.
However, in the end we shall all pay for it. We shall pay as taxpayers, since the low wage rates will require to be supported by the social security system for which 162 we all pay as citizens. We shall pay because there will now be no incentive for such employers to improve production methods or to train, not while they have access to a pool of unskilled or semi-skilled labour, willing to work for peanuts. We shall pay morally, as a society, since it is not possible ultimately to create a caring society when the Government themselves encourage us, taking example from the legislation they promote, not to bother about those least able to look after themselves in an increasingly competitive and exploitative labour market place.
There were other aspects of the Bill which caused a great deal of debate. Many noble Lords were concerned about the proposals for the careers advisory service—rightly so. But again, the Government, as we have seen this evening, have not been willing to move at all in the direction of their well-informed critics who fear that what is intended will not produce an improved service but will open the way to wholesale privatisation of the service.
Finally, as if that were not enough, the Government have attempted this afternoon, at Third Reading, to introduce an amendment with far-reaching effects. It is true that we have had a Committee and Report stage on this vitally important new amendment, and we went through a process today which I think afforded very inadequate scrutiny of an important provision. Regrettably, we have not made any impression upon the Government's amendment.
Yet, as we have pointed out in discussion, the amendment—introduced simply because some employers want to induce people to give up the right to trade union representation, but find that they are hampered from so doing because of Section 146 of the 1992 Act—will have the effect of further isolating the UK from her EC neighbours. It is almost certainly a breach of ILO conventions, in my opinion, which specifically provide for freedom of association and the right not to be discriminated against in this way. It is a further demonstration (also in my opinion) of the Government's unremitting hostility to trade unions and the members whose interest they seek to protect.
The philosophy governing the Bill is clear. It is anti-collective. The Government want to individualise everything, even though most people who work for a living have little power on an individual basis and need the support of organisations they themselves have created. Fragmentation and individualisation of the workforce, exhortations and encouragement to employers not to recognise unions, or to cease to recognise them, all in my opinion have an underlying purpose; namely, to keep wage and salary rates as low as possible—unless of course the individuals concerned are one of the very small group of senior executives getting truly enormous salaries. The Prime Minister may express concern, but that does not seem to bother them very much.
I said at Second Reading that the Prime Minister, with his opposition to the social chapter and with this kind of legislation, is seeking to create "sweatshop Britain". In case some noble Lords may think that that is a bit strong, let me quote in support of my view from the Government's own publication intended to get investors to come to the UK. It is headed: 163Workforce—one of the country's most valuable resources".Under the heading "labour costs", it declares that these are among the lowest in Europe. It states:Wages and salaries are markedly lower than those in the US, Japan, or many other countries within the European Community; and so too are the add-on costs of social security and other benefitsThe publication later states:There is no legal requirement for a company in Britain to recognise a union. Many companies … do not do so.Throughout Britain as a whole the number and percentage of employees who are members of trade unions has been falling since 1979".So there is a reason why we have this kind of legislation. The Government are out to attract inward investment, not on the basis of a trained and highly educated workforce arising from excellent training schemes and high-tech productivity, but on the basis of low pay, little employee protection and unions enmeshed in complex legislation, with no procedures for resolving disputes, no union recognition, and lots of unemployment; so if people are dissatisfied they just have to put up with it. It is not, as a previous Conservative Prime Minister recently remarked on the radio, something to be proud of. But that is the Britain of this Conservative Government and that is why we have this extremely awful Bill. I am very sad indeed that it is leaving this House so little amended.
Finally, if I may add a personal note, I am grateful to the Minister personally for his continuing courtesy on all occasions. We have sometimes had very bitter disputes about the provisions of this Bill. Nevertheless, his courtesy has continued unfailingly. He has been extremely courteous and kind on all the occasions when it has been necessary to discuss the Bill outside the House and in the Chamber, and for that I thank him. But I certainly cannot thank him for the Bill.
§ 1.45 a.m.
§ Viscount Ullswater
My Lords, I said at Second Reading that this Bill would fulfil the Government's continuing commitment to ensure that we have an effective and up-to-date framework of law covering industrial relations and employment matters, and one which meets the needs of a modern economy.
The Bill that leaves this House is improved in many ways upon the Bill that I described in those terms. It will provide individual employees and trade union members with improved protections; it will give 164 employers and the community important new rights; and it will greatly improve the operation of the labour market.
The noble Lord, Lord McCarthy, described it as "far-reaching", and of course that is right. It is far-reaching. In his own style of debating he sought to persuade us that the Bill is yet another son of Frankenstein. I am afraid that I am not so familiar with these young men as the noble Lord is, and I certainly do not recognise the Bill in that colourful language.
The noble Lord, Lord Rochester, made some constructive criticisms of the Bill, and I believe that we have listened to them very carefully. I know that he speaks from enduring concern about the relationships between employers and employees, and I know that he will pursue these matters in the same way in the future. I thank him for the generous remarks that he made concerning my noble friend and myself.
The noble Baroness, Lady David, and the noble Lords, Lord McCarthy and Lord Stoddart, expressed their concerns about the careers service. We are seeking the best service. I believe that the steps that we are taking with this Bill are the right steps.
The noble Lord, Lord Stoddart, said that the Government listened but took no notice. I have to disagree with the noble Lord. Yes, we have been helped greatly by the expertise that has been shown in all quarters of this House. I believe that we have listened to it.
The noble Baroness, Lady Turner, indicated that we sought to marginalise the trade unions. I do not believe that to be the case. However, I have to say that we are pursuing the freedom of the individual and individual choice. I thank the noble Baroness for her kind remarks to me personally.
The noble Lord, Lord Wedderburn, looking very mournful I think, said that this was a sad occasion. I have to ask him how that can be when the themes of the Bill are of central importance to the future economic growth of this country and the wellbeing of its citizens at work.
§ On Question, Bill passed, and returned to the Commons with amendments.