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Lord Inglewood: My Lords, I am most grateful to all the noble Lords who have participated in this debate. I begin byI shall not say "apologising" because that is probably the wrong word, but by making clear that I am probably the only participant in today's debate who was not present for your Lordships' debates on the 1993 Act. So, not merely because it is beyond the scope of the code of practice that we are debating this evening, but also because I am not in a position to do so, I think it appropriate to leave that matter on one side. Those battles have been fought and won in the past; they are not battles that should be fought again this afternoon.
Equally, much reference has been made to the Government's record on employment and other matters. We have had some kind comments from my noble friend Lord Boyd-Carpenter who underscored the real achievements of this Government in improving the economic condition of this country and, with it, the number of jobs.
However, criticisms have been levelled at us from the Benches opposite. As the noble Baroness, Lady Turner of Camden, said, we debated such matters just over a week ago, so I hope that the House will forgive me if I say again that because we have discussed the matter so recently, this is not the time to go over all that ground again. We had an excellent debate on that occasion and I do not believe that we can take the matter much further at this point.
A number of criticisms have been made about what we are doing. I shall endeavour to touch on them and to reassure your Lordships. A point that is sometimes overlooked is that, as the noble Lord, Lord Wedderburn, explained, we are talking about an extremely complicated and technical aspect of the law. In those circumstances and against that background, we do not believe that it is appropriate in generic terms to level at this code of practice the criticisms that in some way or another it is too long or too detailed.
As I have said, we are talking about something that is extremely complicated. The purpose of the document is to help ordinary people the length and breadth of the land to deal with a topic which, by anybody's analysis, is extremely difficult. We hope that the provisions will not merely help those who are involved in this area, but that they will also help labour relations in general because, as has been explained, good labour relations are good for the country.
It has been suggested that the code should equally have been addressed to employers. The answer is very simple. The law itself is addressed to unions because it is unions which can benefit from the statutory immunity provided that they follow the correct procedures. The decision to organise a ballot is solely for the union. Any subsequent decision to call industrial action is also solely for the union. The decision on which members to ballot or call out is also for the union alone. The employer has no part in any of this process. His workers may break their contracts of employment with him, and he is entitled to be informed about a ballot and any subsequent call for action, so that he can if he wishes put his side of the argument and take any possible steps to reduce the damage caused by industrial action.
Perhaps I may now refer to the case of the Fylde College and the National Association of Teachers in Further and Higher Education. The reason that the statute provides that the employer should have identified for him those who are union members and who are contemplating action is, first, so that the employer can exercise his legitimate right to put his side of the argument and, secondlythe Benches opposite did not touch on this point at allbecause the employer employs people for a particular purpose and if they down tools and leave for a period, he has to find alternative ways of trying to organise his business. In those circumstances, it is entirely reasonable that he should be able to mitigate the damage that he might otherwise suffer.
I fully understand the comments made about this by the noble Baronesses, Lady Turner and Lady Seear, but it would be useful to consider the relevant section of the statute. The relevant notice has to describe, so that he, the employer, can readily ascertain,
I believe that it was the noble Baroness, Lady Turner, who referred to the steps that have to be taken to ensure that ballot papers are properly distributed. Much has been made of the recommendation that the union should make special arrangements to get voting papers to members who are on holiday, sickness or maternity leave at the time of the ballot. Again, I re-emphasise the fact that the code cannot add to the law. The law requires that as far as reasonably practicable every person properly entitled to vote must be sent a voting paper and given a convenient opportunity to vote. Obviously what is reasonably practicable will depend on the circumstances. In a national ballot it would not be reasonable to expect a union to be able to take account of individual members' circumstances. But in a ballot at a small employer where perhaps only 10 or so union members are involved, all of whom are well known to the shop steward, it could be perfectly reasonable to take account of such matters as sickness or maternity leave. The code simply reminds unions that they must do what is reasonably practicable. I do not believe that that is in any way objectionable.
I turn now to the comments made by the noble Baroness, Lady Seear. She seemed to be arguing tautologously. If I heard her correctly, she said that it is right that there should be the right to strike which is untrammelled within the limits of the law. I do not think that anybody in the Chamber would dissent from that basic proposition. What we are concerned about is how circumscribed by the law that activity will be. In contemplating such matters, I believe that it is relevant to say that the way in which we protect unions in this regard is by a form of statutory immunity from actions in tort for inducing breaches of contract
Baroness Seear: My Lords, the noble Lord referred to me particularly. Of course, I said that there was a right to strike within the limits of the law. The whole point is that I was complaining about the nature of the law.
Lord Inglewood: My Lords, I was far from clear at that stage exactly what the noble Baroness was arguing in this context and where she stood in the context of the legislation as it relates to this code of practice. I am grateful to the noble Baroness for her intervention which has clarified the matter.
The final point that I should like to address specifically is that raised by the noble Lord, Lord Wedderburn, who advised me that he intended to raise a point with regard particularly to page 24 of the code of practice. With your Lordships' agreement, rather than endeavour to give a quick answer to what was on the noble Lord's own admission an extremely technical point and because I do not have the statute before me, I should like to adjourn the House for pleasure for, say, 10 minutes so that I may be properly advised on the particular point raised. It is clearly an important point. Although the noble Lord indicated earlier that he intended to raise a point on that part of the code, we
Lord Inglewood: I am grateful to your Lordships for allowing me to take instructions on the matter. I am also grateful to the noble Lord, Lord Wedderburn, for giving us the benefit of his widely recognised expertise.
I understand that the circumstances pertaining to the extent and nature of the immunity referred to in paragraph 5 on page 24 of the draft code of practice are to some extent different. That was the point made by the noble Lord, Lord Wedderburn. We must bear in mind that the paragraph appears in the annex to the code of practice. While it may be in a section which refers to trade union liability, it is not in the part of the code to which I referred in my opening remarks. That appears on a coloured background.
In paragraph 5 we are providing a gloss on the law. The code of practice is not a legal textbook. It is intended in simple language to give a general indication of the law in this regard. In respect of Sections 226 and 234A various immunities are granted. As I have explained, the nature of those two immunities is slightly different. Nevertheless, depending on the particular circumstancesbut in any event, relating to the circumstances which are described in paragraph 5a trade union will be at risk. We are not saying that it is inevitably the case that a successful legal action might be brought. We are saying that there is a risk that there may be a legitimate case. I believe that against that background it is a proper form of words to use in the circumstance.
It is not intended to be a definitive and precise description of the law; it is intended to be a general description of the law in this area. In that regard, I believe that it is correct that, depending upon where the immunities exist, there can under certain circumstances be occasions when those immunities can be challenged in the courts. It is merely the case that in this instance immunity can be changed in a slightly different way, depending on whether the action relates to Section 226 or Section 234A.
When describing the process which led to the order coming before your Lordships' House, I explained that there had been wide consultation on the document. It has been distributed widely and examined by a large number of people. Twenty-one specific responses were received from bodies such as the CBI, the Engineering Employers' Federation, the Trades Union Congress and the Scottish Trades Union Congress. The text was not picked up by anyone as being in any way wrong. That is important because, as I explained earlier, we are talking about a gloss on the law to give an indication of what the law is. We are not giving an exact analysis of a precise situation such as one would expect to find in a legal textbook or to receive in counsel's opinion or from a solicitor.
I believe that in that context what we have stated in the code of practice is correct. There is a risk of legal action. Because it does not go further than that, we are perfectly in order to have included the paragraph in that particular form of words.
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