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Lord Wedderburn of Charlton: I am much obliged. Does my noble friend recognise the fact that this point is always made about trade union officials? Indeed, it is never made about anyone else. There is a clause in the Bill, though not very well drafted, about lawyers; but surely that does not alter the very simple fact--as the Court of Appeal has pointed out on many occasions--that there is a law of confidence. My noble friend the Minister said on Second Reading that the courts apply a public interest test when considering whether or not there is a duty of confidence.

If it is confidential information, it will be a breach of confidence to impart it other than in the public interest. That does not depend on any aspect of the Bill but it does apply to all the other people involved, such as those that the Minister suggested would be proper first targets; for example, the auditors and advisers of the company, trade union officials and all sorts of other people. They are all equally governed by the law of the land. If you want to put in something about lawyers you may do so, but you had better look first at their fees.

Lord Borrie: I understand my noble friend's point. However, surely he will accept that there is a special provision in the Bill stating that lawyers to whom disclosure is made are under an obligation of confidentiality. If you have that in the Bill, but allow disclosures to other people without a similar provision, the legislation might well be interpreted as meaning that a provision of confidentiality applies to one group but not to the other, whatever the general law may state.

Lord McCarthy: I thank the noble Lord for giving way. I have no desire to claim any special legal privileges for trade unions. If the Government can accept our amendment if a similar obligation is placed upon trade unions as is already placed upon everyone else, we have no objection to that. We do not seek any immunity for trade unions. We want them to be treated exactly the same as others. However, a large part of the imaginings of the noble Lord are imaginings. In which

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negotiations could unions learn secrets that they are better off not knowing? It is suggested that if they do not know these secrets they can "clobber" the employer. However, it is suggested that if their shop stewards tell them these secrets, they cannot "clobber" their employer. That is fantasy. Collective bargaining negotiations are not based on secrets. They try to influence and to persuade people. It is not a matter of passing secret envelopes to and fro. This is a matter for the union to decide. If the union thought that giving the kind of advice we are discussing could compromise it in collective bargaining, perhaps the union would not give that advice. I repeat we are not asking for special privileges. We are saying that trade unions should be put on exactly the same footing as everyone else.

Lord Borrie: As regards what my noble friend Lord McCarthy has just said, I do not feel there is any great difference between us on this matter. I refer to the phrase that he and the Minister have used, which is taken from the White Paper; namely, "grievance procedures". The noble Lord, Lord McCarthy, made the point that if we are talking about public interest disclosure of malpractice, that is not what he or I would typically think of as a grievance procedure. Surely my noble friend will accept that the phrase "grievance and disciplinary procedures" appears only in a White Paper at the moment. We are not talking about words in a Bill. Therefore there is surely scope for us to pursue that matter to ensure that if the word "grievance" does not cover what we are talking about here, it should be amended to enable unions to assist their members to pursue with employers the disclosure of malpractices. It is clearly the Government's intention in the Fairness at Work White Paper that irrespective of whether a union is recognised in a workplace, an employee should have the right to union representation in these matters. If that is the case, it is implicit in that procedure that there is a disclosure between the employee and the union official; otherwise, how on earth can the union official represent the employee? In those circumstances I ask my noble friends to withdraw the amendment on the basis that the Bill and further legislation will cover this issue. I believe that they need not pursue the matter further.

1.45 p.m.

Baroness Turner of Camden: I thank the Members of the Committee who have contributed to this extremely interesting debate. I was sorry to learn that my noble friend the Minister does not feel that the Government can support the amendment. I am glad that the noble Lord, Lord Borrie, has said that there is not much between us on this question. However, issues have been raised in the debate which give me cause for concern. As regards recognition, I accept that as the Bill stands at present it is possible that where a procedure exists--the emphasis is on introducing good procedures--that may well cover the situation. However, I stress that in those cases where there is no recognition and the employer is hostile, difficulties of this kind can arise. For example, an employer may not have put in place good safety measures. It is that kind of employer who may give rise to problems. An

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employee of such an employer is most likely to feel that he will be subjected to victimisation if he raises the issue. Therefore it is essential that it should be spelt out clearly in the Bill that that is a protected disclosure in regard to trade unions.

I take the point made by my noble friend the Minister that under new Section 43F(2) it is intended to produce a list--as I understand it--of persons or descriptions of persons who will be regarded as appropriate in terms of disclosure within the remit of this Bill. However, I still feel that some issues that have been raised in the debate give me cause for concern. The issue of confidentiality has been dealt with explicitly by my noble friend Lord McCarthy. I have spent most of my life as a union official. We were in the habit of receiving confidential information during the course of our activities. We, of course, respected that confidential aspect; otherwise, we would not have been able adequately to represent the interests of members either collectively or individually. I do not accept the notion that because unions, unlike lawyers, do not have an obligation in this regard, we are in some way less able to deal with confidential information than lawyers.

The noble Lord, Lord Borrie, mentioned the possibility that the press could become involved in these matters. I must dispute that because again I come back to the point that unions are used to keeping confidential information confidential, if that is necessary. I take it that in any event new Section 43G(1)(c) is intended to deal with the press as it states that an individual,


    "does not make the disclosure for purposes of personal gain".

Often the press is involved precisely because they offer personal gain to individuals who provide information. I believe the Bill intends that an individual should not seek out the press first but should seek to pursue all the avenues available under procedures or--the option we would consider--by reference to a trade union.

I do not intend to press this amendment to a Division. I shall consider what has been said. I hope that my noble friend the Minister will consider the points that have been made by myself and my noble friends because they are important. I hope that we can reconsider this matter at Report stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McCarthy moved Amendment No. 3:


Page 4, leave out lines 37 and 38 and insert--
("(d) he believes on reasonable grounds that the relevant failure is of a very serious nature, and").

The noble Lord said: This, again, is a small and narrow amendment which relates to new Section 43H which governs the conditions necessary for qualified disclosure where an employee believes that there has been an exceptionally serious failure. I suppose that the most likely situation is mentioned in new Section 43B(1)(b) which refers to a failure,


    "to comply with any legal obligation".

If an employee feels that an exceptionally serious failure has occurred, presumably involving some legal dereliction, there is a procedure whereby he or she is protected in disclosing that information.

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There are five conditions that have to be met. The wouldbe complainant, or whistle-blower, must be acting in good faith; must believe that the complaint is substantially true; there must be no personal gain; and he or she must believe that the failure is "of an exceptionally serious nature". It is the fourth condition that we do not like and wish to change. We wish to replace, "exceptionally serious nature", with, "of a very serious nature". The matter still has to be serious, but has to be very serious and exceptional.

It is generally accepted, and has been stated by a Minister, that one of the advantages of this procedure is that, under it, the worker is most likely to be able to avoid telling the employer. So it is a rather useful gateway. It might be said that in the circumstances an employee does not know who to tell on the employer's side or that he or she would rather go to one of the bodies set up by the Government, or even to a trade union. We therefore believe that this item is rather important. It is important that if an employee has "reasonable grounds"--the concept included in the amendment--he or she should be able to show that there has been a "very serious" dereliction or illegality rather than an "exceptional" one.

It might be asked what the difference is. "Exceptional", might relate to a matter that cannot be known. There might be some databank indicating the average, the mean, the norm; and it might then be said that the matter was an exception: that only 4 per cent. or 8 per cent. of illegalities were of this kind, and this one was therefore exceptional. It would be very difficult for anybody to be certain that a complaint was exceptional. I find it an exceptional word. It would be easier to operate if the matter was "very serious". A "serious" matter would not be trifling, incidental or unimportant; and a matter that was "very serious" would be the same, only more so. We should not then get into this "roundabout", whereby we are trying to calculate whether a matter falls within the top 5 per cent. of illegality. We therefore believe it more reasonable and sensible to change the wording on the face of the Bill in the way that we suggest. I beg to move.


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