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Lord Boyd-Carpenter: My Lords, this is an excellent document which will be of considerable help to those engaged on both sides of industry in the event of disputes. The noble Baroness on the Opposition Front Bench objected to the code on the ground that it contained too much material. That is a criticism which can so often be made—and rightly made—of a great many government publications. But what I think the noble Baroness failed to recall is that sometimes industrial disputes are conducted not by high-powered unions with skilled and experienced management but by small unions without very much expertise or knowledge available among their officials. Therefore it is desirable, in order to cope with such cases, that there should be a very full exposition of the right conduct of a dispute of this kind.

This document will very much help in, I am glad to say, the increasingly rare cases of disputes of this kind. The noble Baroness tried to brush aside a conspicuous feature of our industrial scene over the past few years. I refer to the striking—that is perhaps the wrong adjective—the noticeable reduction in industrial disputes. It is not good enough just to say that there is unemployment and so on because unemployment itself—

Baroness Seear: My Lords, will the noble Lord give way?

Lord Boyd-Carpenter: My Lords, if the noble Baroness will wait just a moment, I am in the middle of a sentence. I shall give way to her when I have finished it. It is desirable to remember that unemployment is diminishing quite rapidly while, on the other hand, industrial disputes do not seem to be increasing. I shall certainly give way to the noble Baroness.

Baroness Seear: My Lords, I rise to make the point which I am sure the noble Lord is expecting me to make. Of course unemployment affects strikes. All the statistical records show that whenever there has been a high level of unemployment the level of strikes has fallen quite dramatically. We shall have to wait a long time to know whether it is the reforms rather than the economic situation which have had this effect on industrial relations.

Lord Boyd-Carpenter: My Lords, the noble Baroness cannot just brush aside the fact that the number of industrial disputes has very much diminished

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and at the same time unemployment has been diminishing very substantially. She cannot just brush that aside and say that because of low unemployment there has been an improvement. There has been a real improvement in industrial relations.

Baroness Turner of Camden: My Lords, does the noble Lord agree that the new employment, such as it is, is often part-time and very often much more casual and much less secure? It is the lack of security that contributes to the unwillingness to risk what one has.

Lord Boyd-Carpenter: My Lords, that is another very interesting theory. The fact that the noble Baroness cannot dodge is that the number of industrial disputes is only a fraction of what it was a few years ago. Therefore, in that context, it is very desirable that the position should be set out as clearly as it is in this document. It is more than possible, as I was saying a moment ago, that such disputes as there are will be carried on by unions of very limited experience. It is therefore desirable that the legal and other factors affecting the handling of these disputes should be set out clearly and fully so as to give real guidance to those engaged in the dispute, both on the employer's side and on the union side.

I very much welcome the production of this excellent document. It is yet another example of the good industrial relations policies of which the present Government have every reason to be proud.

Lord Wedderburn of Charlton: My Lords, as my noble friend said, I have given the Minister notice, albeit very short notice, of a point which is central to the draft code and I must therefore put aside all points other than that with more than my customary moderation, failing to argue with the noble Lord, Lord Boyd-Carpenter, although he told us that it is important that the code should be clear to both sides—I shall come on to that point—and also with the Minister; we shall see perhaps in Hansard whether he did not justify the protection of those who were taking industrial action by virtue of the protection against dismissal of those undertaking trade union activity. If he did, he was, with respect, wrong, because trade union activity does not in this jurisdiction, although it does in most Western European jurisdictions, include industrial action.

The point of which I gave the noble Lord notice is, it is true, a short but central one to the code and it has emerged only recently, although perhaps some of us should have seen it before. But that can be said of everyone else. If it is right, the Minister must take back the code and have it altered just slightly—I repeat, just slightly—but in respect of a point which has engaged the interest of many of your Lordships. I refer to the section which requires the union, when inducing its members to take industrial action, to give seven days' notice in the course of which it must describe the members. It is quite clear that in many situations that will mean naming them, as the Government now well know from the case to which the Minister averted of Blackpool and the Fylde College.

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When the Government describe the effect of this section they do so in the annexe on page 24. Since this is a point of law I have to ask your Lordships to bear with me in reading the precise words into the record. Paragraph 5 of the annexe states:


    "A trade union which organises ... industrial action without satisfying the requirements of section 226"—

that is the basic section on balloting—


    "or 234A (for notice to employers of official industrial action)"—

that is the section I am addressing to the Minister—


    "of the Trade Union and Labour Relations Act 1992 will have no 'immunity'. Without immunity the trade union will be at risk of legal action by; (i) an employer (and/or a customer or supplier of such an employer) who suffers (or may suffer) damage as a consequence of the trade union's unlawful inducement to his workers to break or interfere with the performance of contracts".

It is my submission, which is now shared by a large number of people—it was also shared by the Minister, the noble Viscount, Lord Ullswater, during the debates in 1993 in the passage of the Trade Union Reform and Employment Rights Bill—that the words in brackets,


    "(and/or a customer or supplier of such an employer)"

are wrong in law. In saying that, I appreciate that this passage is on a white page and not on one of the beige pages which purport to state the law. It would be extraordinary if anyone suggested that merely being on a white page was any excuse for a mistake in law in this code of all codes. It is undesirable that the code should state the law wrongly; it is improper and arguably ultra vires if it does so.

What is the ground on which I put to your Lordships that very simple point? It may be summed up by saying that the Government have extended the range of plaintiffs more widely than Section 234A, which was inserted into the 1992 Act by the 1993 legislation.

The union, in giving seven days' notice, must identify and describe in order that the employer may ascertain the members who are about to take action seven days later which are continuous or discontinuous. But the obligation to make that description is owed and expressly stated in Section 234A(1) to be owed "as respects his employer". It is quite clear that that obligation is "as respects his employer".

It does not stand alone in the Act. There is another place in Section 226A. That also clearly and explicitly imposes the obligations to give the employer a ballot paper and to notify him who is likely to take part by describing the individual members. It appears in two places in the Act. It imposes a duty only "as respects his employer".

What the noble Viscount, Lord Ullswater, and my noble friend Lord McCarthy and myself debated in the course of the passage of the 1993 Bill, was whether or not there were different hoops through which the union must jump as regards the person who turns out to be the plaintiff. That is slightly absurd because the union must decide what to do before it knows who the plaintiff is. That is the point which we kept putting to the Minister.

Later, the Minister corresponded with me. I suspect that his filing system will retrieve the letter more easily than mine. We exchanged correspondence and the Minister agreed with me in the end that it was the Government's intention to insert different hoops for

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different plaintiffs or applicants, as they might turn out to be. The central point of that correspondence was a different person; namely, a member of the union, who can demand a ballot to be supportive of the action as regards the hoops in the new subsection (2) of Section 62.

Noble Lords will understand me when I say that "hoops" describe the large number of acts which have to take place. There has to be a secret ballot; it has to be on paper and by post. All those requirements are of course common to the different categories. But as regards the member of the union, there is one small hoop which is not demanded. That relates to notifying the employer of the result. Regarding what we might call "ordinary plaintiffs", that requirement is inserted in the new subsection (2) of Section 226.

Therefore, we were left with this. There could be a member who, if he applied to the court, the union would get through even though it had failed in just this one small step. There could be the ordinary plaintiff in respect of whom what I might call the ordinary list of requirements such as secrecy, post and so on were satisfied. But then the third hurdle came in which was debated separately during the passage of the Bill. Two extra hurdles were inserted in respect of the employer; namely, Sections 226A and 234A. The ballot notice had to be given before the ballot and after the result the notice of industrial action had to be given to the employer.

That is absolutely clear, and it still is, but I cannot see why. If one is advising a trade union, it is no good saying to them, "Well, if it turns out to be just a member, you could have omitted that, or if it turns out not to be the employer who brings the action, you could have omitted this". But that is the law and that is what the Government confirm it to be. Therefore, it is very important indeed if the Government now say in the code that a plaintiff, who was not included in respect of the two extra requirements for the third category, can now bring a legal action which the Act manifestly says he cannot; namely, a customer, a supplier or anyone else, other than the employer in respect of whom the duty is owed. Plainly, the protection is lost only, "as respects his employer", which is the precise phrase used.

This is not a small point. There are civilised employers. The Minister looks surprised. I shall tell him why it is not a small point. There are civilised employers who are not demanding individual names. There are civilised employers who say, "We believe you ought to give seven days' notice"—the union may disagree with that—"but we are not going to ask for the names of the members as long as we have a general idea". To do that puts the temperature up in any dispute. Anyone who has ever seen an industrial dispute knows perfectly well that it raises the temperature, and some of us wonder why that provision is not there.

If a customer or supplier, and no doubt a lot of other people, can rest on the failure to give names, what is the point of the employer acting sensibly like that? It means that some other person will go running off to court, if the code is right; namely, the customer or supplier. But the law says that that is not the case.

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Either this code is going to encourage a lot of customers and suppliers to waste their money on actions before we get it straight or the Minister can take this matter back and put it right. It is a well-known point in analysis. The 1993 Bill was very difficult to analyse. As I say, it took correspondence after the debates for it to be made clear that we were right in saying that the hoops through which the union must go are not the same as regards all types of possible plaintiff. That is the point.

Section 234A does not give the supplier and the customer a right of action if the union fails in some respect or other. There are other respects because the union has to give seven days' notice and to say whether the action will be continuous or discontinuous. There has to be no commencement of the action before the proper day in either of those categories. Giving the names is only one of the points. The most important introduction to industrial conflict law in 1993, was Section 234A.

Therefore, I urge and entreat the Minister to go away and discuss this matter before he puts it through. He can put it through tomorrow if everyone says that the point I make is wrong. I can certainly bring in a few opinions to say that the point is right. In other words, it is not my particular point. It should have been raised before. To put through a code which is clearly wrong and on a point which is of great importance, which goes to the centre of many disputes, makes one ask: how far are these obligations to be pressed on the factory floor? What goes into the law is not always what happens in real life.

The code as it stands is an incitement to people to say, "Look here, you can't give way on any of this or somebody else will bring an action for an interlocutory injunction"—because that is how it is done. Therefore, I beg the Minister to take the point seriously and although I am sure that the Government are counting their days for legislation on the fingers of a number of hands, it would not waste many hours if the Minister took this point away and got further advice on it from independent counsel.


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