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Lord Wedderburn of Charlton: I hear what my noble friend the Minister says. However, I hope that he will give a reason on Report as to why the whole of subsection (3) of Ullswater ought to be retained. We should have one reason why we ought to retain a law which says, "You've been discriminated against, Smith, because you are a trade union member. But it is all very sad. You would have a remedy but your employer has decided to change the relationships of the workforce. So the discrimination against you is at an end, legally". What kind of law and justice is that? Do we go to the trade unions and say, "Yes, you are going to get a big right of recognition, although we don't know what some of it means. But you will not get any rights in terms of discrimination on trade union membership or activities

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because the employers might change the nature of the relationship with the workforce". It is absurd. Every word we said about the Ullswater amendment was absolutely correct. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 2 agreed to.

Clause 3 [Blacklists]:

Baroness Miller of Hendon moved Amendment No. 232A:

Page 1, line 19, after ("compilation") insert ("and misuse")

The noble Baroness said: In moving this amendment, I shall speak also to Amendments Nos. 232B, 232C and 232D. They all relate to the provisions enabling the Secretary of State to prohibit blacklists. This is a concept which the Opposition wholly support. I regret to say, however, that the drafting of the clause leaves something to be desired--this is not the first time I have said that--in a number of respects. My first four amendments in this group seek to address that.

Amendment No. 232A qualifies the prohibition against compiling lists of trade union members or activists--I beg pardon of the noble Lord, Lord McIntosh, for using the word "activist" again--when the lists are to be used by employers or recruitment agencies. The compilation of a list of such persons cannot itself be improper or even undesirable. Indeed paragraph 9(3)(b) of Schedule 3 postulates that lists of members may be used. It is that use in connection with the employment of an individual that the Bill seeks to prohibit. However, it is not even that use which should be prohibited. It is--as the amendment provides--the improper use of such a list that should be prohibited.

What might be a proper use as distinct from an improper use? I give a single, simple example. An employer who has entered into a single union agreement would need to maintain such a list and the union would need to keep the employer updated as to its membership. As the Bill is drafted, the Secretary of State may make regulations leaving both the employer and the union liable to sanctions. If there are to be criminal sanctions they should be imposed for doing something improper, not for doing something that might have a perfectly innocuous purpose, however outlandish it may seem. Clearly the onus of justifying the production of the list will rest on the compiler.

Amendment No. 232B qualifies the word "activities". The amendment requires the activities to be lawful activities. What can be improper about making a list of those who have flouted the law by calling or taking part in an unlawful strike, illegal picketing, violence or sabotage, even if they did so in purported furtherance of a dispute? As an aside, the wording of this paragraph seems to be particularly loose. Suppose a list is made of paedophiles who happen to be members of one of the teaching unions. That surely would be perfectly proper. But, as they would be members of a union, that seems to be prohibited. Perhaps the Minister will consider tightening this up before the next stage and before one of these people tries to get his or her name off such a list.

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Amendment No. 232C again seeks to clarify a provision. Obviously the Government are trying to prevent a list being used against a potential employee on the grounds that he is a trade union member. There is no reason why the Government should have been so coy about saying what they mean. Therefore I have done it for them. Amendment No. 232D seeks further clarification. It states that any list properly prepared and used in accordance with these amendments shall not be used for the purposes of positive or negative discrimination--that is, for preventing trade union members from being employed, or for ensuring that only union members are not employed. It would not inhibit the use of a list in the case of a single union shop because non-union members or members of other unions might still be employed so long as they accepted that their own union would not represent them. I hope the Government will accept that these small amendments improve and reinforce the Bill.

I realise that the noble Lord, Lord Simon, has an amendment in his name--which the noble Lord, Lord McIntosh, will no doubt address--to which I have an amendment (No. 235A). Every time I have tabled an amendment to the amendments of noble Lords opposite, although I was supposed to speak to my amendment first, that never happened. Is not Amendment No. 234A an amendment to Amendment No. 234, or have I got in a total muddle with this?

Lord McIntosh of Haringey: Amendments Nos. 234A and 234B are amendments to Amendment No. 234. In view of the agreement that has been reached, we shall not reach those amendments tonight. Amendment No. 235A is in the group we are discussing.

Baroness Miller of Hendon: I shall not be speaking to that at this stage.

Lord McIntosh of Haringey: In view of the agreement that has been reached through the usual channels, we should truncate the group of amendments. We should deal with Amendments Nos. 232A, B, C and D, which have been spoken to by the noble Baroness, Lady Miller, and with my Amendment No. 233, which is part of the same group. It would be realistic to move Amendments Nos. 235 and 235A after Amendment No. 234 on the next day in Committee.

All of the amendments concern the Bill's blacklisting provisions. Clause 3 gives the Secretary of State the power to introduce regulations to prohibit the blacklisting of trade union members and activists. The Delegated Powers and Deregulation Committee has made a number of observations about this clause and the powers that it gives to the Secretary of State. My Amendments Nos. 233 and 235 respond to the committee's concerns. They provide some further detail on the extent of the regulation-making powers which the clause confers on the Secretary of State.

Amendment No. 233 deals with an ambiguity in our original proposals. As currently worded, the clause provides powers for the introduction of regulations to prohibit the compilation and use of blacklists. The term

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"use" is probably inadequate to describe everyone who might handle the blacklists after they had been compiled. It would certainly cover the end users of the lists; that is, employers who use the lists for recruitment purposes. However, it would probably not cover organisations or individuals who act as middlemen, actively disseminating the lists provided by the compilers among employers.

Blacklisting is an activity where middlemen might flourish. In fact, they could be the main actors in the process, encouraging others to compile lists for them, which they then sell on to employers or employer organisations. Potentially, employer organisations could themselves act as middlemen, disseminating the information among their member companies. The amendment ensures that such middlemen are caught by the prohibition. In the regulations we will obviously ensure that the Royal Mail and other mailing companies that unknowingly distribute the lists as part of their normal business are not caught by any prohibition.

Perhaps I may now turn to the amendments brought forward by the noble Baroness. Amendment No. 232A seeks to give the Secretary of State the power to introduce regulations which prohibit the misuse of blacklists, as well as their compilation. I cannot see what this would usefully add to the clause. The noble Baroness should note that subsection (2) of the clause gives the Secretary of State the power to introduce regulations which prohibit the use of blacklists. In defining prohibited uses, the Secretary of State is in effect simultaneously defining how lists can be misused; he cannot avoid it. The effect of the amendment is therefore embedded in the wording of the clause.

It might be that the noble Baroness thinks that the clause should indicate in some way that there might be permissible uses of union lists. That too is unnecessary. There is nothing in the clause which prevents the Government from exempting certain lists or certain uses of lists from any prohibition. For example, it would seem inappropriate to stop unions from using lists of prominent trade unionists when trying to appoint one of them to a senior trade union position. Amendment No. 232A is unnecessary.

The purpose of Amendment No. 232B is to ensure that lists cannot be prohibited if the trade unionists on those lists had ever engaged in unlawful union activities. This seems to create a whole new area of uncertainty into the protection we are creating. It would create a smoke screen behind which blacklisters would continue to persecute ordinary trade unionists. It would be easy for a blacklisting organisation to allege that individuals had been involved in some kind of unlawful activity at some point during their union careers. Union law is exceedingly complex. It is very easy for individuals unintentionally to breach the law in some small way. Any breach of the law, however insignificant and however long ago it was committed, could be used by a blacklisting organisation to justify its work. At the very least the amendment would cause complications at the enforcement stage. Tribunals and courts would be asked to judge if individuals had ever engaged in any unlawful behaviour. There is plenty of scope there for arguments and expensive disputation about the facts.

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We all agree that blacklisting should end finally and completely. This amendment would thoroughly undermine the clause. It would provide a lifeline for blacklisters and complicate the enforcement of any prohibition. I am sure that the noble Baroness does not want to achieve that and I would ask her to think again about the amendment.

Amendment No. 232C deals with the use of blacklists by employers and employment agencies. The clause states that the employers' purpose should be related to recruitment. That is the main purpose for which blacklists have been used in the past. Of course, employers could potentially use lists for other purposes. For example, they might be used to select existing employees for redundancy or dismissal. We are therefore considering whether Clause 3(1)(b) is correctly worded to cover all possible abuse, and we may come back to it, with amendments, at Report.

Amendment No. 232C qualifies the purpose by stating that the list should be used by employers or employment agencies in restricting or preventing recruitment. I cannot see the case for introducing a wording of that sort. It is very difficult to see how the lists could otherwise be used to inform recruitment decisions. Why should an employer purchase a list if he was not interested in using the names on the list to help determine his selection of possible candidates?

Amendment No. 232D is closely connected with Amendment No. 232C. It tries to ensure that regulations could be introduced to prohibit the compilation of lists which benefit those trade unionists who appear on them. I do not know what experience the noble Baroness draws on to justify the amendment. Is she concerned that this is a widespread practice? It may be that she feels that the Economic League and similar blacklisting organisations are really fairy godmothers in disguise, working for the benefit of their listed trade unionists. This is not a significant issue. I do not think there is any need to highlight the matter in primary legislation.

The current wording of the clause permits us to introduce regulations to prohibit the compilation and use of lists which contain the names of trade unionists. The regulation will focus on the use of such lists which work to the detriment of named individuals. That is where the problem exists; that is what the regulations should

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address. This amendment is also unnecessary. It identifies or seeks to identify a solution to a problem which does not exist in the real world.

I ask the noble Baroness to withdraw Amendment No. 232A and not to move Amendments Nos. 232B to 232D, and I ask the Committee to agree to Amendment No. 233.

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