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Lord McCarthy: Amendment No. 226 is a useful amendment, in that it gives the Government an opportunity to tell us whether they really mean what the Bill implies; that is, that all the CAC does is make a declaration. In other words, the CAC simply declares that, by whatever method it used--presumably it counted the union membership cards and decided within the bargaining unit that 50 per cent were members of the union--it recognises that union. Alternatively, it
Lord McIntosh of Haringey: I rise to speak to Amendments Nos. 226 and 230 in the name of the noble Baroness, Lady Miller, and Amendment No. 229 in the name of my noble friend Lord Simon of Highbury, which also comes within this group.
My noble friend asked whether all the CAC does is make declarations. All these three amendments concern declarations and decisions by the CAC. The declarations by the CAC have statutory effect and that is pervasive all the way through Schedule 1 to the Bill. The CAC is not simply a declaratory body; it is a body which triggers a whole series of statutory procedures to enable, in proper circumstances, the recognition of trade unions for collective bargaining to take place.
I believe we are in general agreement about the principles of these amendments: that the CAC should give notice to the appropriate parties; that is, that the CAC should usually give reasons for its decisions and the Secretary of State should have to give reasons if he decides not to accept the CAC's advice. Where we appear to differ is how best to achieve those ends, and I hope to convince the Committee of the merits of the Government's approach in Amendment No. 229.
I hope it will be agreed that it is right for the CAC to notify involved parties of its declarations. The CAC's declarations are usually declarations that a specific union is now recognised or has ceased to be recognised--obviously something about which the parties need to know. For example, the CAC may issue a declaration under paragraph 25(4) that a union is not entitled to be recognised. Amendment No. 229 provides that the union and the employer must be told of that. That is a necessary and helpful change and on that basis the amendment will be moved in due course.
I return to the amendments in the name of the noble Baroness, Lady Miller. Amendment No. 226 would require the Secretary of State to give, in writing and in advance, his reasons for not following the advice of the CAC in amending Paragraph 19. That is the part of the schedule which deals with "automatic" recognition for unions with over 50 per cent membership in a bargaining unit.
It is reasonable to require the Secretary of State to justify to Parliament any decision to amend Paragraph 19 which is not proposed by the CAC. Of course, subparagraph (4) means that any change to Paragraph 19 must be scrutinised by both Houses of Parliament. The Secretary of State will have to explain and defend his decision whether or not he takes the CAC's advice. That is regarded as more than adequate scrutiny for most other purposes. I therefore see no need for this amendment, and I invite the noble Baroness to withdraw it.
As regards Amendment No. 230, I am happy to agree with the general principle behind this amendment. I believe that the CAC should in general provide the reasons for its decisions, in the interests of open government. However, I do not think it is helpful to make it part of the CAC's general duty.
"The CAC will normally give reasons for its decisions, but occasionally it may regard that as unnecessary or undesirable--for example, if it would damage industrial relations or criticise an individual. The CAC increases its risk of judicial review if it decides not to give written decisions with reasons, but it would not be right to oblige it to do so in every case".--[Official Report, Commons, 16/3/99; col. 440.]
To give an example of a minor decision where written reasons are probably not necessary, the CAC must sometimes decide things like whether an application is in writing, or an application states that it is made under the schedule. I am thinking of paragraph 7, but there are other examples as well. These are questions of fact, and it would be perverse to require the CAC to give reasons in writing, or indeed at all.
Although I sympathise with the reasoning behind Amendment No. 230, I see no need for it. I fear that it might sometimes impair the work of the CAC. Therefore, I invite the noble Baroness not to move the amendment when we reach that stage in due course.
Lord Meston: Before the Minister sits down, I must say that it strikes me that the CAC may well be a "public authority" within the meaning of the Human Rights Act and that it is determining civil rights and obligations. Therefore, to use an unfashionable Latin phrase which was dispensed with earlier in the proceedings on the Bill, it ought, prima facie, to be giving reasons, otherwise there is a risk of infringement of the European Convention on Human Rights.
Lord McIntosh of Haringey: I do not dissent from that view. As a public body, I am sure that the CAC will take account of its obligations under the European Convention and that it will wish to give reasons wherever possible. I have merely been suggesting examples of where it would be undesirable for the CAC to do so. I am sure that the European Convention would take into account those special circumstances.
"He may amend it in such way as he thinks fit, and not necessarily in a way proposed by the CAC (if it proposes one)".
Lord McIntosh of Haringey: We are in danger of getting into theology here. If the Secretary of State may amend the provision in such way as he thinks fit, he could amend it in a fundamental way. I think that is what is provided for in the Bill.
Lord McIntosh of Haringey: My noble friend is, of course, correct. The Secretary of State can amend paragraph 19 of Schedule 1 but not necessarily in such a way as proposed by the CAC. The degree of amendment that implies can be interpreted by lawyers.
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