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Lord McIntosh of Haringey: I sincerely congratulate the noble Baroness both on the care which she has clearly taken in drafting the amendment and on the evident passion with which she moved it.
I think that I can assure her that we can achieve substantially the objectives which she wishes to achieve. As my noble friend Lord Simon explained in his letter of 10th May, in response to the Select Committee on Delegated Powers and Deregulation, the Government hoped to replace the power in Clause 15 with a substantive provision and we hoped to bring forward an amendment in Committee. The noble Baroness referred to that in her speech. I am sorry that we have not been able to do so, but I am confident that we shall be able to produce an amendment on Report which will, in a sense, go further than that of the noble Baroness because, instead of adding to the regulatory power, which is what her amendment does, it will produce a substantive content in Clause 15 instead of a purely regulatory power.
I assure the noble Baroness that our substantive proposal will address the point that she is getting at with this amendment. I should like to be clear on this point. I can give her more information about what our amendment will provide than we have been able to give in the past when we have given only indications. Workers should be protected against detriment or dismissal for refusing to give up the terms of the collective agreement which applied to them. That has not changed. But as I made clear on Second Reading, the existing law allows employers and employees to conclude contracts on terms which differ from collective agreements. I do not have the attention of the noble Baroness.
Baroness Miller of Hendon: The Minister should know and be certain that I am listening to every word that he says.
Lord McIntosh of Haringey: In the White Paper, we promised that that would continue. Obviously, in order to do so, we must be clear that the fact that one worker benefits from better terms under an individual contract does not constitute detriment for those who remain covered by the collective agreement. However, it will not be permissible for employers to offer better terms on condition that workers leave or do not join
a trade union. That would be contrary not only to this Government's intention but contrary also to Section 146 of the 1992 Act.The noble Baroness referred to the Wilson and Palmer case. There is the possibility of some misunderstanding in that regard. The majority of the Judicial Committee said that offering different terms did not constitute discrimination on grounds of TU membership in the cases of Wilson and Palmer. The employer's intention was to change bargaining arrangements and not to deter trade union membership. The noble Baroness must not confuse those two issues. We are ensuring that an omission intended to deter trade union membership will be unlawful, but we shall maintain the right to change bargaining arrangements where there is no intention to prevent or deter union membership.
I repeat our apologies that we have not been able to produce the substantive amendment which we wished to introduce in Committee. I wish to respond also to the noble Baroness's claim that we are introducing the closed shop by the back door. That simply is not the case. The closed shop is about compelling people to be union members. Nothing in this Bill affects the right of people to choose whether or not to join a union. Many non-members of unions are covered by collective agreements now. Equally, many trade unionists currently work in places where there is no collective bargaining. I think it could be said that most members of the Government are in that position. No doubt that will continue to be the case. Recognition has nothing to do with the closed shop.
Despite those two misunderstandings between us, I hope that with the assurances and details I have given about the substantive amendment which we propose to introduce on Report, the noble Baroness will realise that we intend to introduce something which is along the lines of what the noble Baroness wants, but it will be more effective by being on the face of the Bill rather than by being a constraint in regulations. On that basis, I hope that the noble Baroness will feel able to withdraw the amendment.
Lord McCarthy: Before the noble Lord sits down, I wonder whether he realises how much he is worrying some of us? The amendment moved by the noble Baroness would reinforce all the discriminatory aspects of the Ullswater amendment. It would make it even simpler for employers not to make threats but to offer bribes, the object of which is to induce people to leave the union and to fragment recognition and collective bargaining. That was the object of the Ullswater amendment and it is the object of this amendment. If the Government say at this point that they want to go even further, I am very worried.
Lord McIntosh of Haringey: I make it clear that I have not announced a change of policy; I have spelt out in more detail what has already been said by Michael Wills in another place and what I said at an earlier stage of the Bill. We have always said that there is a role for individual contracts but that the use
of individual contracts or discriminatory provisions in contracts either to discourage trade union membership or to make trade union membership impossible was not acceptable. There is no change in policy here. We are spelling out in a little detail, but not of course the full detail, the way in which we propose to fulfil the undertakings we made at earlier stages of the Bill.
Baroness Miller of Hendon: I repeat that I believe this to be a closed shop through the back door, simply because all that is left for employers and employees to negotiate, apart from union rights, is the matter of extra pay, flexible hours and so on. If that is taken away, there is no purpose at all. There would be no reason why anybody should negotiate with an employer because there would be nothing to achieve.
I listened carefully to what the Minister said. I accept that the Government would have come back with something but have not been able to do so. Knowing how passionately I felt about the matter, I believe they should have dealt with it quicker. However, bearing in mind the comments of the noble Lord, Lord McCarthy, I believe that it may not come back in a way that would be suitable for us. I feel I must test the opinion of the House. It is always open to the Government, if they feel they can bring back something better, to deal with it in that way.
7.42 p.m.
On Question, Whether the said amendment (No. 276) shall be agreed to?
Their Lordships divided: Contents, 98; Not-Contents, 78.
Aldington, L.
Anelay of St. Johns, B.
Annaly, L.
Arran, E.
Astor, V.
Astor of Hever, L.
Attlee, E.
Bathurst, E.
Berners, B.
Biffen, L.
Blaker, L.
Blatch, B.
Brabazon of Tara, L.
Bridgeman, V.
Burnham, J. [Teller.]
Byford, B.
Cadman, L.
Carnegy of Lour, B.
Carnock, L.
Clark of Kempston, L.
Coleraine, L.
Cope of Berkeley, L.
Courtown, E.
Cranborne, V.
Crickhowell, L.
Cross, V.
Dartmouth, E.
Dean of Harptree, L.
Denham, L.
Dixon-Smith, L.
Effingham, E.
Elliott of Morpeth, L.
Elton, L.
Ferrers, E.
Fookes, B.
Gardner of Parkes, B.
Garel-Jones, L.
Geddes, L.
Glenarthur, L.
Glentoran, L.
Harding of Petherton, L.
Harmar-Nicholls, L.
Hayhoe, L.
Henley, L. [Teller.]
Higgins, L.
Hogg, B.
HolmPatrick, L.
Home, E.
Howe, E.
Howell of Guildford, L.
Kimball, L.
Kingsland, L.
Lauderdale, E.
Leigh, L.
Liverpool, E.
Luke, L.
Lyell, L.
Mackay of Drumadoon, L.
Mancroft, L.
Massereene and Ferrard, V.
Mayhew of Twysden, L.
Mersey, V.
Miller of Hendon, B.
Monro of Langholm, L.
Montagu of Beaulieu, L.
Monteagle of Brandon, L.
Montgomery of Alamein, V.
Mowbray and Stourton, L.
Munster, E.
Murton of Lindisfarne, L.
Naseby, L.
Northbrook, L.
Northesk, E.
Norton of Louth, L.
Nunburnholme, L.
O'Cathain, B.
Onslow of Woking, L.
Rawlings, B.
Renton, L.
Roberts of Conwy, L.
Rotherwick, L.
Rowallan, L.
Ryder of Wensum, L.
St. John of Fawsley, L.
Saltoun of Abernethy, Ly.
Seccombe, B.
Sharples, B.
Shrewsbury, E.
Stewartby, L.
Strathclyde, L.
Tebbit, L.
Thomas of Gwydir, L.
Torrington, V.
Tugendhat, L.
Westbury, L.
Wise, L.
Wynford, L.
Young, B.
Acton, L.
Ahmed, L.
Allenby of Megiddo, V.
Alli, L.
Amos, B.
Archer of Sandwell, L.
Bach, L.
Barnett, L.
Bassam of Brighton, L.
Blease, L.
Bragg, L.
Brookman, L.
Burlison, L.
Carlisle, E.
Carter, L. [Teller.]
Clarke of Hampstead, L.
Clinton-Davis, L.
Crawley, B.
Davies of Coity, L.
Davies of Oldham, L.
Desai, L.
Dholakia, L.
Dixon, L.
Dormand of Easington, L.
Dubs, L.
Evans of Parkside, L.
Evans of Watford, L.
Farrington of Ribbleton, B.
Gladwin of Clee, L.
Goodhart, L.
Goudie, B.
Gould of Potternewton, B.
Grenfell, L.
Hacking, L.
Hampton, L.
Hardy of Wath, L.
Harris of Greenwich, L.
Harris of Haringey, L.
Haskel, L.
Hilton of Eggardon, B.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Islwyn, L.
Janner of Braunstone, L.
Kennet, L.
Lockwood, B.
Lofthouse of Pontefract, L.
McCarthy, L.
McIntosh of Haringey, L. [Teller.]
Mackenzie of Framwellgate, L.
McNair, L.
Mar and Kellie, E.
Meston, L.
Milner of Leeds, L.
Mishcon, L.
Monkswell, L.
Morris of Castle Morris, L.
Pitkeathley, B.
Ponsonby of Shulbrede, L.
Ramsay of Cartvale, B.
Razzall, L.
Rendell of Babergh, B.
Rogers of Riverside, L.
Sainsbury of Turville, L.
Scotland of Asthal, B.
Sewel, L.
Shore of Stepney, L.
Simon, V.
Simon of Highbury, L.
Strabolgi, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Thurso, V.
Tordoff, L.
Walpole, L.
Wedderburn of Charlton, L.
Whitty, L.
Williams of Mostyn, L.
Resolved in the affirmative, and amendment agreed to accordingly.
Clause 15, as amended, agreed to.
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