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Mr. Peter Thurnham (Bolton, North-East) : There was a fairly clear understanding of how things worked until the Court of Appeal judgment. That is what caused the difficulty. That is why the Government were right to introduce the Ullswater amendment to clear up the matter.
Mr. Bottomley : That may be so, but I remind the House that the question that I was putting was whether any hon. Member was aware of any open consultation between 6 May and 24 May when the Ullswater amendment was considered in the other place. I am not aware that hon. Members who have links with trade unions are rising. I am not aware that those who may have better links with employers are rising. In fact, I notice no movement anywhere.
My hon. Friend the Member for Bolton, North-East (Mr. Thurnham) makes the point that everyone thought that the law allowed employers to do what two employers were told by the Court of Appeal was illegal. That may be so, but it is not a view which I share. However, my hon. Friend, in his creation of jobs, may have had a different experience. I do not think that employers previously believed that to be the law. I think that Associated British Ports and the newspaper group received legal advice saying that such action was worth a try and the industrial tribunal said that it was not worth a try.
Mr. Patrick Nicholls (Teignbridge) : I am grateful to the hon. Gentleman for giving way. [Interruption.] One chooses one's friends. I put the point in the way that I wish to. The hon. Gentleman makes the point that there was no consultation. Precisely what does he think the purpose of that consultation would have been? Does he envisage that he might have changed his own mind? I have to say that I doubt it, in which case I am not sure what the purpose of that consultation would have been.
Mr. Bottomley : It is silly for people in the same party when they have a disagreement to resort to that sort of personal abuse which is uncharacteristic of Members of the House. I am aware that when I was a Minister my hon. Friend the Member for Teignbridge (Mr. Nicholls) was one of those who thought that I was not doing the right thing on wages councils. As a member of the Conservative party, I do not think that we do the wrong thing when we speak up for those who may want to band together for collective strength. We may have differences and disagreements, but some kind of loyalty to each other is a reasonable thing for which to ask. If my hon. Friend thinks that I am not open to argument, he does not know me very well.
I shall repeat the question and then leave it. Who shows any manifestation of believing that the worth of union membership could be totally negated but not have that held as a deterrence of union membership, which is clearly unlawful?
There is no doubt that deterrence of union membership is unlawful. If I am wrong about that my hon. Friend will no doubt intervene. He rightly accepts the law and that is plainly the law.
Then comes the question whether we should allow the law to be changed to allow another purpose to overtake that purpose of deterring union membership. My argument is no, we should not. My regret is that there are not more Conservative Members who have come up through trade unions who,
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speaking the sort of words and expressing the sort of thoughts that I have been doing, can represent those whom I have been representing here today.It is a mistake for the trade unions to continue their strong links with the Labour party. That is one reason why we have an unbalanced debate. I hope that in time the Conservative party will show, in its actions as well as in its words, in what it does in the House as well as in what it says at election time, that it wants the support of working people, whether or not they are members of unions ; that we want people to choose whether to join a union and that we shall maintain the law as it has been clearly stated since 1975 and that no one shall be deterred from union membership.
Mr. Leighton : If ever anyone wanted evidence of the need for a change of Government, the appalling way in which the Government are behaving on this issue is it. Only a Government with the arrogance that comes from 14 years in power, a Government who think that they can do what they like, would attempt to do what they are doing and in such a way, overturning the decisions of the courts and abusing parliamentary procedures. When it come to assaulting trade unions, the Government think that anything goes.
The amendment must be a violation of international agreements. It must be a breach of International Labour Organisation conventions because it is a direct assault on the freedom of association, which is a basic human right. It penalises and victimises citizens for what the Government appear to regard as the crime of collective bargaining.
Let us consider the case, mentioned by the hon. Member for Eltham (Mr. Bottomley), of Associated Newspapers Ltd. v. Wilson. That company publishes the Daily Mail and similar associated papers and had recognised the National Union of Journalists since 1912. In 1989, the editors of the firm's three papers decided to derecognise the NUJ and to move from collectively agreed terms and conditions of employment to individual contracts.
Those on individual contracts received salaries that were 4.5 per cent. higher than those being paid under the collective agreement. Incidentally, that increase was backdated to 1989. The individual, Mr. Wilson--I emphasise the word "individual" because I have heard all the Government's rhetoric about how they are looking after the rights of the individual-- claimed that, by paying him less and providing him with less favourable terms and conditions than those who had transferred to individual contracts, the firm had taken action short of dismissal against him which was penalising him for being a union member.
What is the law? Section 23(1) of the Employers Protection (Consolidation) Act 1978 states that
"every employee shall have the right not to have action (short of dismissal) taken against him as an individual by his employer for the purposes of preventing or deterring him from being or seeking to become a member of an independent trade union, or penalising him for doing so".
That is the law ; that language has been in our law for two decades. It was introduced in the early 1970s, since when six anti-union Bills have been enacted without interfering with it. In its judgment allowing the appeal, the Court of Appeal held that when terms offered under personal contracts were better than those available under a
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collective agreement, with the aim of reducing the power of the union to the point where it was wholly negated, the purpose of the action was clearly to give effect to"the wholly foreseeable consequence of deterring employees from being trade union members".
As such, it was an action taken to deter people from trade union membership within the meaning of section 23 of the Act. A similar judgment was made in the case of Associated British Ports. That judgment was unanimous : all three judges concurred that the employer's action constituted unlawful discrimination. The law is clear ; the employer's action breached Acts dating back to the early 1970s and the words that I have quoted have been consolidated in all the legislation that the Government have enacted since 1979. It is ludicrous for them to claim that the law is unclear and that the amendment is intended merely to clarify it. The truth is that the law is too clear for the Government. They do not want to clarify it ; they want to change it, to the detriment of individual employees. It is all part of their vindictive attack on workers' rights and freedoms.
Surely, if there is any difficulty, the law should be clarified in the courts. We do not know whether this case is likely to go to the House of Lords. How is it possible to talk about clarifying the law when the Law Lords have yet to consider the matter? One cannot but be amazed and appalled by the Government's extraordinary behaviour : they are showing complete disrepect for the law and the courts. Within days of the judgment, before anyone had read the full transcript of the ruling and without waiting to see whether there would be an appeal to the House of Lords, they announced the tabling of an amendment to change the law because the judges had not done what the Government wanted them to do. They proposed immediate legislation, with none of the usual prior consultation with interested parties. Moreover, the text of the amendment was not available until the last possible moment before the debate. I understand that the Standing Orders in the other place were suspended to allow the amendment to be dealt with in Committee, on Report and on Third Reading in a single day, which kept the House sitting until 2 am. What a way for the mother of Parliaments to behave ; what an example to set other countries. Some of us are members of the Commonwealth Parliamentary Association and the Inter-Parliamentary Union, and take part in seminars to explain to visitors the wonderful way in which our Parliament works and the rule of law in this country. I wonder whether we shall be sufficiently proud of this example to explain it to them.
The amendment is an attack on workers' freedom of association--on basic human rights and freedoms. The Minister has told us that it is all right for a worker to have a union card--that is a private matter--but, if that worker wants to use the union's facilities, he will be penalised. That would give bad employers the green light to victimise and penalise trade unionists. It would allow them to withhold pay increases from workers who refused to renounce union representation. Workers who bargained through their unions would lose all protection against discrimination and the powers of those unions would consequently be reduced. The unions would be negated--a word used by the hon. Member for Eltham.
The Government used to talk of reforming unions. It is now clear that they want to destroy them completely and to deny them their legitimate role. The Government are
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venting their spleen and malice on unions : they want to stack the cards against them and in favour of macho employers. The Government should be careful ; show me a country without free trade unions and I will show you a dictatorship.The Government should stop this vendetta against their own people. After six anti-trade union Acts, the unions cannot be blamed for the ghastly state of the British economy. Given the current state of the labour market, trade unions are more necessary than ever to give workers some protection and some rights in the workplace. Our people now recognise that : public opinion polls show that the unions are very popular and that workers want the protection that they afford. This mean, spiteful, malicious amendment is a disgrace to Parliament. If it is passed, I hope that a future Labour Government will give priority to its repeal.
5.45 pm
Mr. Nicholls : Let me begin by declaring my interests in Hill and Smith Holdings, the NSCC, Port Enterprises Ltd., the Waterfront Partnership, the Howard de Walden Estates, MinOtels and Dunn and Baker.
The theme that runs through this debate is what the Conservative Government have tried to do in the trade union legislations that they have enacted since 1979. Although it seems narrow, the amendment raises some fundamental questions, as was pointed out by both the hon. Member for Holborn and St. Pancras (Mr. Dobson) and my hon. Friend--as he wishes me to call him--the Member for Eltham (Mr. Bottomley).
The debate has featured at least one red herring. There has been disagreement about whether the law is being clarified or changed. Obviously, to some extent, one man's change in the law is another's clarification ; however, I see nothing wrong in saying that, although it is clear that the legislators originally intended the law to operate in a certain way, the law has now been found not to be operating in that way. At that stage, the House will need to make a decision. The circumstances are not unique, but relatively common. The House must say, "If that is the way in which the words come across literally, and it is not what we intended, we must take steps. Shall we accept that the law must be thus--although we never thought that it should be--or shall we change it?"
Usually, when such circumstances arise, Ministers are consulted. They normally reply that, if a suitable legislative vehicle existed, they might be able to do something ; but such a vehicle can rarely be found when a clarification of the law is thought necessary. It just so happened that a Bill was going through the House whose long title suggested that it might be suitable : I see nothing wrong in principle with saying, "For once we have a suitable vehicle. Let us take advantage of it."
Mr. Peter Bottomley : I shall try not to intervene again, but my hon. Friend may be able to help me on the question of what the law was thought to be. I have failed to find any reference in any of the personnel management books and loose-leaf binders, or in any decisions made by industrial tribunals, employment appeal tribunals or the Court of Appeal, that suggests that those decisions came as a surprise. What makes my hon. Friend believe that the people involved considered it possible to negate the benefits of union membership without offending against subsection (1) (a) of what was section 23 of the 1978 Act?
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Mr. Nicholls : I cannot begin to aspire to my hon. Friend's command of the sections and subsections. Moreover, it is clear that he has thoroughly researched the case law in the hope that it can help him with a particular proposition.
When the law is thought to be settled and definite, nothing can be found in case law, because the practitioners have made a correct assumption. What does happen from time to time is that, even when the legislation is believed to be operating in a certain way, it then goes to be tested in one court or another, and it turns out that what was thought to have been settled has not been settled after all.
The Minister of State, Department of Employment (Mr. Michael Forsyth) : It may help the House if I explain that the employment appeal tribunal said that the section
"has caused and may well continue to cause problems We share the difficulties which this Industrial Tribunal found in the wording of section 23(1)(a)."
Mr. Forsyth : What was asked for was an indication of who had said that there was some difficulty in understanding the law.
Mr. Nicholls : What my hon. Friend the Minister has said is a perfectly correct statement of what the law's approach would have been in a situation such as this.
In effect, we have three tribunals. We have the tribunal of first instance- -the industrial tribunal--the employment appeal tribunal and then the Court of Appeal. If three such tribunals can come to differing conclusions, whatever the law might be, it is obvious that it is far from clear, and that it needs to be clarified. The fact that that difficulty had not arisen before proves the point precisely. It was thought to be settled, there was a disagreement between the three tribunals, and it needs to be clarified.
Mr. Heald : Does my hon. Friend agree that the employment appeal tribunal is the most knowledgeable and skilled tribunal of any in this area, because it consists of a chairman who is a High Court judge and who handles those cases day in, day out, and
representatives from both sides of industry? Will my hon. Friend accept from me, as a lawyer who was advising people on these issues at the time, that there was considerable complexity involved?
Mr. Nicholls : That is right. I too used to do a considerable amount of industrial relations law. I will probably be in hot water with the Court of Appeal if I say that if one is looking at a thorough working through of the complex issues involved, the employment appeal tribunal usually provides better guidance than most.
The plain fact is that, if three tribunals cannot agree, whatev that he mentioned, I understand that he used to practise as a solicitor. Does he not think that it might have been wiser for the Government to wait for a determination of the issue by the House of Lords before rushing headlong into this new legislation, or does he think that the employment appeal tribunal is a more useful guide to these issues than the House of Lords, which is the highest court in the country?
Mr. Nicholls : The hon. and learned Gentleman's deference as a silk to the House of Lords is truly
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impressive. I dealt with that point a moment ago. Even if the matter had gone to the House of Lords and it had decided one way or another, two things would still be apparent. First, it would be apparent that there had been a difference of opinion about the state of the law as it passed through the various appellate processes--so to say that the law was clear would not have been true ; secondly, the House would still have had to return to the question whether it believed that the effect of the law should be as the courts have decided.At that stage, one has to look for an appropriate vehicle to change the law and, by then, the vehicle may well have gone on. There was a clear difference of opinion among the various tribunals, and the House now has an opportunity to say whether the law should be clarified in the way in which it was always thought that it would be interpreted. That is the proposition, and there is nothing wrong with it.
The point of principle underlying this amendment is what we are in the business of doing. The hon. Member for Holborn and St. Pancras (Mr. Dobson) dealt with his point of principle somewhat late in his speech, but with engaging frankness. He stated baldly that this is about the belief that more trade unions would be good for employees. It is a perfectly reasonable proposition, and for somebody who is sponsored by a trade union it is probably a predictable and inevitable conclusion to reach. However, should the House believe that more trade unions would automatically be a good idea for the people of this country and for employees? I do not necessarily see it that way.
This legislation is not anti-trade union. How could it be anti-trade union, when it is from a Government who enacted the right not to be refused employment on the basis of trade union membership? It is worth reminding ourselves that it was a Conservative Government who introduced that legislation.
We know that the Labour party is opposed to this amendment. How long will that opposition last? The background to this has included five employment Bills, and we should look at the things that the Labour party has opposed to the rooftops. It has opposed secret ballots before the election of trade union officers, secondary picketing, secondary action, pre-strike ballots and the idea of a postal ballot. It is not long ago that it was opposing to the nth degree the idea that the closed shop--that monstrosity--should be abolished.
In due course, the Labour party suddenly decided that it was not against all those things after all. We must look at this proposition in that light. It would be entirely inconsistent for a Government to enshrine in law the idea that one should not be refused employment because of trade union membership and then to indulge in this piece of legislation if it satisfied the description given by Opposition Members.
Of course trade unions should be entitled to combine in their own interests. However, recognition is a matter for trade union members. It cannot be right for them to impose recognition on employers simply because trade unions decide that that is what they want. I apologise if, in a misplaced attempt at humour, I upset my hon. Friend the Member for Eltham, but, as one Conservative to another, I find it difficult to see how one can go along with the idea that a trade unionist should be entitled to impose recognition on an employer. That cannot possibly be right. It must be up to an employer who owns, runs and knows his business to decide
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whether to recognise a trade union for particular purposes. My hon. Friend the Member for Eltham obviously finds that a bizarre proposition ; I do not.Mr. Leighton : It is not about whether an employer can derecognise, because, under the law, he can. The judge has said that he should not offer a bribe to a certain section of workers to do so.
Mr. Nicholls : The hon. Gentleman can put it in those terms if he wishes.
Mr. Leighton : It was not me--it was the judge.
Mr. Nicholls : One of the things that we are trying to cope with today is the fact that different judges and three different tribunals see things--
Mr. Nicholls : It is touching to see the Labour party say how much it wants to support judges. The Labour party supports judges only when they say what it wants them to say. The hon. Gentleman is being highly selective in the judges that he is prepared to agree with. It is tempting to wish that it would go to the House of Lords--I say this in a moment of jocularity--simply so that he might have to come back in due course and say how much he supports the judges in the House of Lords.
There is an ambiguity, and it needs to be clarified. This is about the proposition advanced by the Opposition and my hon. Friend the Member for Eltham--that, once trade union members decide that they wish to be collectively responsible, it should be imposed on employers, and that any paid differentials which come about can be dismissed as a bribe or a douceur. The thread running through this issue is not that more trade unions are good, but that it should be open to the people involved to make up their own minds--that includes employers--whether they will accept the recognition that unions may demand of them in a particular situation. I do not find that an ignoble principle--it is a theme that has run through our legislation since 1979.
When my hon. Friend the Member for Eltham and I were members of the Government together, trade union legislation was being passed. My hon. Friend had day-to-day responsibility for trade union matters, as I also did for a time. Perhaps we can agree on one thing. When I saw the themes running through such legislation, I did not feel that I as a Minister was being asked to do something so appalling that I should resign. Hearing my hon. Friend speak, with some eloquence, I wonder how he managed to stay on board at times if he felt so strongly about the legislation that we were introducing.
6 pm
Mr. Peter Bottomley rose --
Mr. Nicholls : I shall now give my hon. Friend the opportunity to make the resignation speech that he denied himself at the time.
Mr. Bottomley : First, I do not recall industrial relations legislation being passed when I was a Minister at the Department of Employment, although my memory may be at fault. Secondly, nor do I recall in the first 14 years of Conservative government any proposal to change the law
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so as to negate completely the benefits of union membership, in flat contradiction of section 23(1)(a)--the industrial tribunal's finding of fact.Mr. Nicholls : Let me cheer up my hon. Friend at once. If he is casting his mind back to find out when he was an Employment Minister, I can tell him that it was between September 1984 and January 1986. Mercifully, I can agree that, at that precise point in time, no employment legislation received the force of law. If he wants to point out that he voted against employment legislation when he was in another Department and somehow remained a member of the Government, I shall accept what he says.
However, my hon. Friend is making a serious point, which needs to be dealt with. The amendment will not negate all the benefits of being in a trade union. We are all aware of examples of people being members of trade unions and presumably paying their dues willingly, but their employer is not able to negotiate their pay. My hon. Friend might believe that the only benefit of being in a trade union is the ability to negotiate pay, but there is much more to it than that.
Mr. Thomas Graham (Renfrew, West and Inverclyde) : Does not the hon. Gentleman realise that the Government are in the business of improving industrial relations, but that the legislation is a recipe for disaster ? I do not know whether the hon. Gentleman has ever worked in a factory alongside people who are members of a different union. What happens if one person earns £2 an hour more than another for exactly the same work merely because he is not in a trade union ? Surely no hon. Member could accept such a situation in British industry.
Mr. Nicholls : The hon. Gentleman speaks with great sincerity, but I should have more sympathy with what he is saying and be more likely to agree if, since 1979, the Opposition had not opposed every trade union reform that we have introduced. The Labour party's position on all our trade union reforms has been that it agrees with the reform before last, is not quite sure about the last one and believes that the present one is an outrage. That is the way the party presented itself to the electorate.
In a practical sense, I accept what the hon. Gentleman says. Such a situation might cause difficulties, but working life is difficult. Is he leaping from that proposition to saying that the state should be in the business of fettering an employer and stopping him offering a salary structure which he finds makes his business work ? If the hon. Gentleman believes that, he would impose a restriction on employers and businesses and prevent them from offering jobs which last and succeed.
In the end, the one thing that unites--or should unite--all parties, although I sometimes wonder whether it does, is that we want businesses to succeed. That is what the amendment is all about, and that is why it is entirely right.
Mr. Alex Carlile : When the hon. Member for Teignbridge (Mr. Nicholls) began his speech, he read out what sounded like a litany of private consultancies that he holds. If he were told by you, Mr. Deputy Speaker, or by those who have such authority that, because of those consultancies, they would deduct all the money that he receives as a consultant from his salary as a Member of the
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House plus one penny piece, I bet my bottom dollar that he would give up those consultancies in a flash. This proposal is about something very similar.The proposal is an attempt to bribe or, to use the words of Lord Justice Dillon, to offer a douceur, or sweetener, to union members. It is not a sweetener to try to persuade them not to be members of a trade union--their right to be in a trade union remains, of course, enshrined in law--but it is an attempt to allow employers to offer a sweetener to make employees unable to exercise their rights as members of a trade union. That is offensive.
I regret that it was far from a privilege to listen to the hon. Member for Teignbridge when compared with the speech made by the hon. Member for Eltham (Mr. Bottomley). It was a privilege to listen to the hon. Member for Eltham because I believe--I hope that the Minister of State will reflect on this--that it represented the authentic voice of trade unionists who do vote or have voted for the Conservatives. I believe that Conservative trade unionists will find this proposal as offensive as trade unionists who vote for any Opposition party. The Government have signally failed to recognise that, perhaps because of the indecent speed with which the proposal was inserted in the Bill in another place.
The amendment makes doubtfully proper use of both Houses of Parliament. It is insupportable to suggest that it could be regarded as just ; and its legality is questionable in the context of international law.
As for the propriety of their use of the House and of another place, I wonder why the Government thought it proper to introduce the clause with indecent haste when it was known that the employers who lost in the Court of Appeal were intent on going to the House of Lords on appeal. Why have not the Government waited for the determination of the House of Lords? Why have they sought to diminish the courts, which, in other contexts, they seek--or pretend to seek--to support?
The appeal decision was not the idiosyncratic decision of a radical who had accidentally found his way into the Court of Appeal. It was the unanimous decision of Lord Justice Dillon, Lord Justice Butler-Sloss and Lord Justice Farquharson, two men and one woman who are very experienced in the application of employment law, lawyers of eminence and brilliance who were not taken by surprise in having to reach such a finding.
Why do the Government seek to arrogate to themselves the role of a legislative Court of Appeal when the appellate remedies provided by our courts system have not been exhausted? Is it a precedent for the future? If so, it is a fine demonstration of the fact, now accepted not only by my party but by the Labour party, that there is a need to write down some constitutional limits. It is a good example for the argument that it is high time that we had a constitutional court, or its equivalent, so that we are not driven to seek remedies from distant courts in the international arena in order to assert individual liberties and rights.
How can the Government say that they were taken by surprise by the view expressed by the Court of Appeal and the industrial tribunal in the two cases involved? Where did the Government get their legal advice and what legal advice did they obtain? I ask the Minister of State to tell us when he answers the debate where in the past the
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Government obtained the legal advice that left them so surprised by the findings of the Court of Appeal. They certainly did not go to John Hendy QC, one of the leading employment lawyers in the country, who appeared for Mr. Wilson before the Court of Appeal. Had they done so, they would have found it far from surprising that the Court of Appeal should reach that conclusion. I do not pretend to be an expert on the subject, but I can tell the Minister of State--perhaps the Department of Employment needs to learn this--that there are plenty of employment lawyers apart from Mr. Hendy who have long believed that the decision of the Court of Appeal on behalf of Mr. Wilson and in the other case that has been mentioned were entirely predictable and were an application of the law as it was understood.The hon. Member for Wallasey (Ms Eagle), who speaks in the House on employment issues with great skill and authority, referred earlier to the decision of the employment appeal tribunal--that, at least, should appeal to the hon. Member for Teignbridge--in the case of Discount Tobacco and Confectionery Ltd. v. Armitage, which was reached in 1990, nearly three years ago, and publicly reported in the "Industrial Relations Law Reports" for 1990 at page 15 onwards. Mr. Justice Knox, giving the judgment of the tribunal, said that it would "emasculate"--that is a strong word--our understanding in this country of the right to be a member of a trade union if it could be successfully argued that there was a distinction to be drawn between membership of the union and resorting to the services of a union officer to elucidate and negotiate the terms of employment. He said that the right to be a member of a trade union
"would be reduced almost to vanishing point"
if that distinction, which was argued for in the case but rejected, were to exist in law. He continued :
"it would only be just the fact that a person was a member of a union without regard to the consequences of that membership that would be the subject matter of that statutory provision, and it sems to us that to construe that paragraph so narrowly would really be to emasculate the provision altogether".
In Mr. Wilson's case Lord Justice Dillon said that that judgment was "unquestionably correct". Lord Justice Dillon did not seem to think that the interpretation had been questioned in the period between the Armitage case and the decision in the Wilson case. Mr. Nicholls rose --
Mr. Carlile : I shall give way in a moment.
Why do the Government claim surprise, when they knew the effect of the decision in the Armitage case ? If they had considered the effect of Armitage at all they could only have concluded that the law was as Lord Justice Dillon declared it to be. In my view, for the Government to say that they were taken by surprise is a pretence. I do not accept for one moment that that was the sincerely held view of the Government when Lord Ullswater spoke, or that it is their view now.
Mr. Nicholls : The hon. and learned Gentleman defends his fellow judges with passion and sincerity. So that we can understand where he and his party stand on the matter, will he tell me whether he supports the right of a trade union to be recognised for collective bargaining purposes in a company if it represents a significant proportion of the relevant part of the work force, even if the employers do not wish to recognise it?
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6.15 pmMr. Carlile : I believe that the law must fall within article 11 of the European convention on human rights, as I shall explain in a moment.
Mr. Nicholls : Answer the question.
Mr. Carlile : If the hon. Gentleman is more patient than usual, he will see that his question will be answered in due time.
Now I turn to whether the proposal can be regarded as just. How could it possibly be regarded as just, or as fair? Again, we must consider the words of Lord Justice Dillon. Whether we talk about a douceur, a sweetener or a bribe--call it what you will, Mr. Deputy Speaker--that is the effect of the measure. It is intended to allow an employer to offer a sweetener to emasculate the effect of being a trade union member.
The Secretary of State said that, unless what an employer did was reasonable, he would not get away with it. However--inadvertently, I am sure--the right hon. Gentleman misrepresented what the new provision says. I refer the Minister of State to subsection (3)(a) of the new clause, which would provide that the purpose for which the employer took the relevant action would be regarded as having been taken
"to further a change in his relationship with all or any class of his employees".
The employer's action would be valid unless the tribunal considered
"that the action was such as no reasonable employer would take". So it is not for the employer to prove that his action was reasonable ; the burden is on the employee to prove that no reasonable employer in the land could reasonably have taken such action. That is a heavy burden, quite different from the Secretary of State's explanation.
Furthermore, that is not the end of the matter. Subsection (3) also says :
"the tribunal shall regard the purpose mentioned in paragraph (a) as the purpose for which the employer took the action, unless it considers that the action was such as no reasonable employer would take".
It then adds the words :
"having regard to the purpose mentioned in paragraph (a)." That means that so long as the employer's purpose was
"to further a change in his relationship with all or any class of his employees",
his action is most unlikely to be regarded as unreasonable. The courts will have to consider the meaning of that last part of the proviso to subsection (3).
If my understanding of the provision is wrong, I ask the Minister of State, when he replies to the debate, to tell me why. At the very least, will he explain to the House why the words
"having regard to the purpose mentioned in paragraph (a)" are contained in the subsection and what they mean? He probably knows that since a recent decision, the courts may have regard to what Ministers say in the House. I believe that the courts will be extremely puzzled by the words that I have quoted unless the Minister gives some clarification, no doubt based on advice, of what they mean. A failure to give such clarification will be regarded by me--and, I suspect, by others--as deliberate and as an acceptance of the fact that the Government are trying to circumscribe even the test of reasonableness.
Finally, is what the Government propose legal? Did the Government take independent legal advice as to whether
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