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Lord McIntosh of Haringey: The noble Baroness, Lady Miller, in introducing the amendment, appeared to think that the Government have considered these matters in haste. I can assure the noble Baroness that we had time to give very full consideration to the penalties which should be on the face of the Bill after receiving the report of the Deregulation and Delegated Powers Committee. We did so by analogy with the most appropriate other offences. While blacklisting, however deplorable it may be, is presumably not a violent offence, the noble Baroness gave analogies of other violent offences which attract fines up to the level 5 maximum as an argument against the decision we have made. We have based our proposals in Amendment No. 234 on the Data Protection Act, 1998. There are strong similarities between the two Acts: both relate to the processing and misuse of data; both provide protection to individuals against abuses which can arise when information about them is compiled by third parties. That is why we thought that the analogy with the Data Protection Act was the correct analogy.

In reply to the point made by my noble friend Lord McCarthy, the figures that have been quoted are for £5,000 at level 5 and for £2,500 at level 4, which are the statutory maximum penalties. They can be changed by legislation and uprated in line with inflation.

We have given all the consideration that is necessary to reach a proper conclusion. We have continuously consulted the CBI and the TUC throughout the preparation of the Bill. We have raised matters with them and they have raised matters with us, and there has been no problem about consultation. I am not sure whether we have specifically consulted the Institute for Personnel Development, but I am sure that our consultations were wide enough to include that organisation if it had been felt appropriate.

In response to the question of the noble Lord, Lord McCarthy, about what happens if the fine is not paid, I give the standard answer which applies in one case in the law of England and Wales and in the other case in the law of Scotland. In England and Wales the court may order the sum owed to be recovered from the offender's assets by means of constraint. Ultimately, in England and Wales, someone who deliberately fails to pay a fine may be imprisoned for a failure to pay rather than for the original offence. My noble friend Lord Monkswell thought that we were not being fierce enough and that we should be prepared to send people to prison. However, these are criminal offences and appear on somebody's record, and we should not underestimate the seriousness of that matter.

In regard to Amendment No. 280A, we have looked for the most appropriate analogy, which we have decided is discrimination as defined in the Disability Discrimination Act 1995. Unless noble Lords can suggest any closer analogies, I believe that the Government have come to the right conclusion both in

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terms of the severity of the penalties and in answering the recommendation of the Delegated Powers Committee.

Amendment No. 234B appears to be aimed at ensuring that criminal offences created under the blacklisting regulations cannot be triable either way. I assure the noble Baroness that the difference between Amendment No. 234 and Amendment 280 is deliberate. We do not agree with her that there should be no possibility of trial by jury under any circumstances. She said that she agrees with the Government that blacklisting is a serious matter because it has grave consequences for the blacklisted individual and for the reputation and standing of organisations accused of compiling blacklists. We take the view that we should not rule out the possibility of cases being tried before a jury, and that defendants should not be denied that right.

In the light of what I have said about the level of penalties and the need, where appropriate, for the opportunity of trial by jury, I hope that the noble Baroness will not press her amendments.

Baroness Miller of Hendon: I have listened very carefully to the Minister and I agree with him in relation to Amendments Nos. 234A and 280A. I will read what he said about Amendment No. 234B. I beg leave to withdraw the amendment.

Amendment No. 234A, as an amendment to Amendment No. 234, by leave, withdrawn.

[Amendment No. 234B, as an amendment to Amendment No. 234, not moved.]

On Question, Amendment No. 234 agreed to.

Lord McIntosh of Haringey: moved Amendment No. 235.

Page 2, line 18, at end insert--
("( ) In this section "list" includes any index or other set of items whether recorded electronically or by any other means.")

The noble Lord said: When we last discussed this part of the Bill on 7th June we amicably agreed to separate Amendments Nos. 235 and 235A from the earlier grouping, I think because the noble Baroness could not find her notes. However, I am sure she has them in front of her now.

Amendment No. 235 is clarificatory. It provides a fuller definition for the type of list that can be prohibited by regulation. Information can be stored and circulated in many ways these days, and paper records are becoming less and less important, although the amount of paper used does not seem to be diminishing. Electronic and digital technologies have created many more means of conveying information. We want to ensure that the clause reflects the multimedia age and is elastic enough to cope with the future development of information technology. The amendment is phrased in a way to capture a wide range of possibilities. Perhaps the noble Baroness would care to speak to Amendment No. 235A before I make any comments on that amendment. I beg to move.

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3.30 p.m.

Baroness Miller of Hendon: Before I speak to my amendment, I have to say that the Minister was extremely courteous last time. He is absolutely right. I pretended one thing. The truth was that I could not find the wretched notes.

Clause 3 prohibits the blacklisting of workers by their employers in retaliation for their engaging in trade union activities. We have already indicated our general acceptance of this provision. However, we believe that there is another side to the coin: it is the process that the unions call "blacking", which is short for blacklisted. Apart from the strike on an employer's premises, a union engaged in a dispute may proclaim goods or services made or provided by that employer as "black". Members of the union in dispute and members of other unions are often encouraged not to handle them. For example, goods manufactured before the dispute begins may get held up in the docks or at the employer's warehouse; retail shops carrying those goods may be picketed; and firms who supply goods and services to the business in dispute may also find themselves picketed or their customers intimidated by aggressive leafleters, or their own businesses threatened with blacking if they do not desist from dealing with the firm involved in the dispute.

Blacking has been extended to disputes in which the union itself is not even involved but is acting in support of a foreign union by refusing to handle goods coming from abroad. This blacking does not always end when the dispute is settled, as almost inevitably is the case, by agreement between the parties. The blacking, despite the unusual "no reprisals" clause in a settlement, is often only observed by the employer. Goods made by an employer during a strike with the assistance of non-union labour, or by another firm, may continue to be blacked indefinitely. This amendment would prohibit those activities. The proposals are reciprocal to the anti-blacklisting provisions that the Government have introduced into the Bill as a criminal offence.

The Bill began life as the White Paper, Fairness at Work. The Minister's response to this amendment will be a clear measure of how seriously the Government take their claim that the Bill is a "measure for partnership." Many provisions in the Bill lean over backwards to be fair to employees. However, as I see it, there are not quite so many which favour employers or which are even-handed. If, as we all agree, there should be no blacklisting of employees involved in a dispute, or those who engage in legitimate union activities, then similar economic activities against employers should also be banned.

As a result of the trade union legislation introduced by the previous government, union rights and privileges are protected as well as being regulated. That is why the Labour Party manifesto said:

    "The key elements of the trade union legislation of the 1980s will stay--on ballots, picketing, and industrial action". Blacking is no less industrial action than mass picketing. We now have industrial tribunals with wide powers to protect and enforce employees' rights. There can be no justification for what can be described as "overkill"

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    when a union tries to pursue a claim. If the Government will not accept this amendment, I am sure they will tell us why. Perhaps they will also tell us whether they have an alternative provision which would give a measure of even-handedness and justice to employers. I believe that the purpose of my amendment can be summarised in two words: fair's fair. I beg to move.

Lord McIntosh of Haringey: I am afraid that the noble Baroness has misunderstood the role of the blacklisting amendments in this legislation. She made a delightful speech; indeed, it took me back to the great days of, "I'm all right Jack", Red Robbo, and so on. It was nostalgic in the extreme. However, I believe that the noble Baroness misunderstands the reason why we have the blacklisting amendments in the Bill and why we have not interfered with so much of the legislation of the past 20 years--a good deal of it passed by the previous government--which deals with industrial action. We have had to introduce the amendments on blacklisting because the blacklisting of individuals is the issue here, an issue inadequately provided for in legislation.

In seeking to prohibit lists of employers, the noble Baroness is going back into the whole area of legislation about industrial action, which covers both employers and unions. If the noble Baroness is seeking an analogy of fairness between both sides on the industrial/employment relations front, she should be looking at the legislation which covers employers and unions rather than comparing the legislation on employers with the proposed legislation here about individuals. The legislation on industrial action is very detailed and contains many protections, as I believe the noble Baroness acknowledges, for employers and unions alike. We have made it very clear that we will keep the key elements of the law in this area. The balance will still need to be held, notice will still need to be given, and secondary action will remain unlawful.

As our proposals in this area make clear, we are committed to providing a fair balance between the interests and freedoms of individuals and their employers. Our proposals are aimed at modernising the law and redressing the current imbalance that exists in relation to individuals. I am afraid that the noble Baroness's amendment could tilt the balance back again. I am not convinced that this is a major problem. I believe that the analogy which the noble Baroness draws is a false one. I am confirmed in my view that this is not a major problem by the fact that we have not received any representations from employers to amend the law in the way proposed. In those circumstances, I suggest that the legislation of the previous government on secondary action already achieves the protection that the noble Baroness is seeking and that her amendment is both unnecessary and inappropriate.

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