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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

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declares that it is not that way; that a ballot was held; that there was 50 per cent support for the union and the 40 per cent rule was agreed to. And it will say nothing else.

Is it the case that declarations of the CAC will merely record that a criterion of one kind or another was met, and nothing further?

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.

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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.

As my honourable friend the Minister for Small Firms, Trade and Industry said in another place:

    "We expect the CAC to give its decisions and reasons in writing in almost all cases, but it may be desirable for some minor decisions--for example, on minor procedural matters--to be conveyed orally in the interests of speed and efficiency.

    "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.]

Perhaps I may add another example. There may be cases where an employer has relevant information which is commercially sensitive. For instance, if a secret merger is on the cards, the appropriate bargaining unit might be X rather than Y. This amendment would require the CAC to state its reasons, even if they were commercially sensitive, and hence the employer would not tell the CAC about the merger. That is one example of the CAC not being able to reach a correct decision because of a requirement to give reasons.

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.

10.15 p.m.

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.

Lord McCarthy: I have a question for my noble friend the Minister which is slightly different. I may

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have misunderstood what he said and, in that case, I apologise. Perhaps he will say that we must read the Hansard report to find the answer. I rather gained the impression at one stage that my noble friend was saying that there were circumstances in which the Government could override a decision of the CAC or that the Secretary of State could set aside a decision of that committee. From the way that I have read the Bill, it seems to me that, if the CAC makes a declaration, that is the end of the matter and it cannot be set aside in any way. It is quite true that paragraph 126 of Schedule 1 states that the Secretary of State may issue general guidance, but, when speaking about the particular decisions which the CAC makes on declarations of recognition, surely there can be no alternative open to the Secretary of State other than to accept them. Is that correct?

Lord McIntosh of Haringey: No, the Secretary of State can disagree with the recommendations of the CAC but if he does so he must justify any order to both Houses of Parliament.

Lord McCarthy: Where is that stated on the face of the Bill because I cannot find it?

Lord McIntosh of Haringey: Perhaps the Members of the Committee will talk quietly among themselves while I try to find it. Paragraph 125(1) states,

    "If the CAC represents to the Secretary of State that paragraph 19 has an unsatisfactory effect and should be amended, he may by order amend it with a view to rectifying that effect". Paragraph 125(2) states,

    "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 Wedderburn of Charlton: I appreciate what the Minister says and I thank him for that reference. However, most of the people with whom I have discussed this matter thought that paragraph 125 constituted an amendment of the relevant documents and so on which have had an unsatisfactory effect in order to deprive them of that effect in the future. Is it not a matter of changing the decision of the CAC and for the Minister to step in with big boots to step on the CAC's decision in a particular case? Is that what the Minister is saying?

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 McCarthy: He could amend paragraph 19, but he surely could not amend the decision of the CAC as regards a declaration.

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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