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The Deputy Chairman of Committees: Before calling Amendment No. 131, and before reverting to the statement that I made at the resumption of this session of the Grand Committee with reference to the breakdown of the recording, I have received a request from the noble Baroness, Lady Miller of Hendon. The recording equipment was also not working when she made her request, as I understand it, at the beginning of this afternoon. On consideration and after consultation, it would seem fair and reasonable—I hope that the Committee will agree—that the noble Baroness, Lady Miller of Hendon, should be allowed to repeat the request that she made but restrict herself only to repeating that request without discussion thereon.
Baroness Miller of Hendon: I am grateful to the Deputy Chairman for allowing me to speak. I am afraid that I do not remember what I said. I do not make speeches and remember them. Therefore, if my speech was not recorded, it was not recorded. I simply want to take the opportunity to say, once again, a few words on that issue.
I feel quite upset. Noble Lords opposite will know that many of us did not want to be in Grand Committee but wanted to be in the Chamber
downstairs. Had we been, there would have been no question that we would have had an opportunity of listening to the Statement and participating in the debate on it if we wished. As it was, we were made to come here. I understand perfectly well that this Grand Committee will always adjourn when there is a vote—we recently did so. I am sorry that I was not back in time to hear what the Deputy Chairman of Committees said. I also understood that if there was anything of a serious nature, that would be taken into account. I believe that a Statement of this kind, with so many having voted on Tuesday, is a serious matter.I want to make another point. My noble friend commented on the point made by the noble Lord, Lord Sainsbury, who said that there is no such precedent. When the Minister—and indeed the noble Lord, Lord Razzall—had to participate in a Statement, we adjourned without any problems for a while in order for them to do that.
I turn to the comments yesterday of the noble Lord, Lord Wedderburn, about the fact that we do not have a shorthand writer here. We pointed out the difficulties of that. We are in a difficult position. I shall sit down soon—I understand the wish of the Deputy Chairman of Committees not to have any further discussion—but Members opposite will know what they said. I think that they were concerned not to waste time because so many of them had taken a lot of trouble with this Bill. I would not like anyone to think that we criticise anyone for the time taken. However long anything has taken, that is how long it has taken, and we have sat here. Fine; that is what democracy is. I say to them, "You are entitled to do work and go through your amendments in whatever way you wish". We appreciate that. The time spent attending the Statement would not have been time lost to the Committee because we still would have gone through everything.
I just want to place on the record the fact that I am very upset that my wish was not granted.
Lord McIntosh of Haringey: I appreciate that the Deputy Chairman of Committees wanted no discussion of the matter. However, it is necessary for me to say a word on behalf of the Government Whips, if not the usual channels. Clearly, the issue raised by the noble Baroness, Lady Miller, about adjourning the Committee, will have to be resolved. I undertake to ensure that the usual channels will take note of what she has just said.
Secondly, on the question of the breakdown of recording: that is extremely serious and we shall have to look into the question of back-up recording facilities. That will have to be done urgently.
The Deputy Chairman of Committees: The statements of the noble Baroness, Lady Miller, and the noble Lord, Lord McIntosh, are on the record. I call Amendment No. 131.
5.30 p.m.
Lord Wedderburn of Charlton moved Amendment No. 131:
- After Clause 30, insert the following new clause—
The noble Lord said: This amendment is grouped with Amendments Nos. 262A and 264, in the name of my noble friend Lord Lea of Crondall. All three amendments are about the problem of the dismissal of those who take part in strike action. My noble friend, I think, agrees that it would be quicker for the Committee to understand the meaning and thrust of the amendments if Amendment No. 262A were moved first, with the leave of the Deputy Chairman of Committees. I would then move Amendment No. 131, which will make it absolutely clear how and why we are doing this. With the leave of the Deputy Chairman of Committees, I ask that that amendment, which is grouped with Amendment No. 131, be moved first. I will then move—or, at least, speak to—Amendment No. 131 and explain how it is different.
The Deputy Chairman of Committees: It is not possible to move Amendment No. 262A—I assume that is the amendment to which the noble Lord, Lord Wedderburn, is referring—before Amendment No. 131. The procedure is that Amendment No. 131 must either now be moved or withdrawn.
Lord Wedderburn of Charlton: Very well. I apologise for trying to improve our procedures.
Both of these amendments—all three amendments in the group—concern a problem which, some people suggest, is a problem of the past and not of the present. However, events of the past two years—indeed, in view of the situation in Wales, events of the past two weeks—have shown that this is a matter with which there is considerable concern. It involves workers being dismissed from their jobs by reason of taking part in industrial action, even where that industrial action is protected on the part of the liability of the trade union by reason of there having been a ballot, proper notice and other procedures under the Trade Union and Labour Relations (Consolidation) Act 1992. It is important, especially because we are coming at the matter this way round, that I speak to the amendment carefully and make it clear why I have put it on the Marshalled List and why it comes about now in addition to the amendments of my noble friend Lord Lea. I have found by experience over many decades that making the sort of proposal that is in both amendments leads to misunderstanding—it frequently leads to misrepresentation—particularly because of the insular debate that takes place in the United Kingdom, although the matter would not raise an
When a worker takes part in collective industrial action, in the eye of a large number of international standards, which I shall cite in a moment, and of every civilised national jurisdiction of law except the United Kingdom, the person does not break his contract of employment. The reason for that is that a right to take part in collective action is regarded internationally and in most national systems as a basic human right. That is a human right that is effective collectively but which inheres in the individual worker. It is a human right that has been recognised at the international level but never in the United Kingdom. The reason it is not recognised in the United Kingdom is that since 1906 our law has proceeded upon the basis that it is adequate to promote the protection of those who organise strike action or those who induce strike action—that provision was inserted into the Act of 1906 by that great Liberal statesman Sir Charles Dilke.
The difference, of course, between protecting the inducement or organisation for strike action and the action itself in the worker is that, if the trade union or the organisers are protected in a trade dispute as in the United Kingdom, the worker is not; it remains a breach of his contract of employment. In a trade dispute in an action in tort, if all the conditions are satisfied—they are many and complicated today—if there has been a ballot, if there has been adequate notice and if the action is in furtherance of a trade dispute, the union or its officials who organise the action may be protected, but the worker remains in breach of contract. Such a consequence seems obvious to the English mind. It is not obvious to the French mind, the German mind, the Italian mind or, indeed, any other legal mind in Western Europe. What happens in those systems?
Where workers collectively take part in industrial action as defined by the national system—definitions do change—"What is a strike?" is a favourite area for writing in the vast literature on this subject, which I am sure is all known to the Government. What a strike is is a difficult issue about which lawyers argue—usually passing like ships in the night—since what appears to the Italian mind to be a strike may not appear so to the French mind. The British mind tends to pass both of them because they include almost all industrial action within the compass of these rules.
The other systems suspend the contract of employment in relation to strike action. The French principle, introduced into the Code du Travail, is that,
It will be an objection to the amendment that we do not say what is to happen, having said that it should not be a breach of contract. It will of course be necessary, if the spirit of the amendment is accepted, to say what happened with regard to the contract of employment in a protected strike. The amendment—I break off to remind the Committee—speaks of a stoppage of work in the course of industrial action which is protected within Section 238A of the 1992 Act. It would be necessary to introduce a provision whereby the contract of employment was suspended. And it would be necessary to provide, as other systems do, that during a strike wages should not be payable and that the employee should not be obliged to carry out the terms of the contract, and so on. Of course, further provisions will be needed.
However, I am emboldened to introduce this issue as a probing matter of principle because in another place on 12th February the Minister, Mr Johnson, said, first, that a review would take place of this whole matter. Then he said:
It is time that Parliament began to debate the matter, in particular, because the principle that the right to strike is a right and should not amount to a breach of the individual worker's contract of employment is recognised in a variety of international standards. It is recognised in the United Nations International Covenant on Economic, Social and Cultural Rights; it is recognised in the Council of Europe's Social Charter; and it is recognised in the International Labour Organisation Convention on Freedom of Association 1948, Convention No. 87.
The bodies in the ILO, such as the Committee on Freedom of Association, the Committee of Experts and the governing body, have always held, since decades past,
The Council of Europe Social Charter has been interpreted, it is true, as not including certain limited forms of industrial action. It means a complete cessation of work, and that is why we have used the phrase "stoppage of work" in the amendment.
It is also true to say—and this is a most serious issue for the Government—that the matter has been considered by the Council of Europe's experts and governing authorities and especially many, many times by the International Labour Organisation's committee of experts and its governing body. The United Kingdom has been condemned by both bodies in respect of its failure to observe the fundamental principle of the right to strike. Indeed, I refer to a recent article in the International Journal of Comparative Labour Law and Industrial Relations for 2002, one of many journals in the scholarly literature which have again and again tried to bring this matter to the attention of the authorities.
Professor Tonia Novitz and Dr Paul Germanotta write at page 75 in spring 2002 as follows:
The French system is clear. The Italian constitution has the strongest right to strike known in western Europe. The German basic law has been interpreted from the beginning as including a right to strike in the proper sense. Furthermore, as my friend, Professor Giugni, has written—and I translate the Latin which he used—a right to strike means that you do not cause legal injury to anyone when you exercise the right. You may do if you go outside it or do something extra, but by exercising a right, you cannot be said to cause legal injury to others for which you can be made liable in the courts.
That scarcely does justice to a voluminous literature, and a vast number of calls upon the Government which have been ignored by both administrations. The worst replies to the ILO and to the European Social Charter were made in the 1980s, which can only be described as quite arrogant refusals to look at our international obligations. In the last decade, there has hardly been a better response from the present Government, I am ashamed to say.
The breach of the contract of employment in Britain, as the Donovan report recognised in one passage, will normally result from industrial action. It is very rare that industrial action does not break the contract of employment. In fact, most people believe that the only occasion in which that can eventuate is where workers take collective action to avoid voluntary overtime, since they are not obliged to work the overtime. Other than that, it is almost impossible to find such a case.
That this has remained for so long is quite astonishing. What I hope to obtain from the Government from this probing amendment is an assurance that they will look carefully at the need to observe our international obligations, of which we have been in breach for so long, and that we will institute if not a right as good as that in the Italian or German constitutions, at any rate something better than total absence of a right for individual workers in the present case. As I said, it is a very practical matter. There have recently been cases where workers have been dismissed and deprived of the rights which the 1999 Act tried to give them with regard to unfair dismissal in Wales by reason of the employer instituting a lock-out.
How did that arise? It arose in respect of the amendment to which my noble friend Lord Lea will speak; namely, that we amended the law of unfair dismissal—of which I have not spoken at all—to say that in the first eight weeks of an industrial action, if it were protected under the rules of our ballots and the like, workers would be protected by reason of the application of the rules concerned with unfair dismissal. My noble friend will forgive me addressing his amendment before he has moved it but I want to explain why we put our amendment down and did not support his.
"NON-BREACH OF CONTRACT
In the Trade Union and Labour Relations (Consolidation) Act 1992 (c. 52), after section 238A there is inserted—
"238B NON-BREACH OF CONTRACT
A stoppage of work by an employee in the course of industrial action which is protected action within the meaning of section 238A(1) of the Trade Union and Labour Relations (Consolidation) Act 1992, shall not constitute a breach of his contract of employment.""
"a strike does not break the contract of employment unless the employee is guilty of serious misconduct".
Perhaps my noble and learned friend will be pleased to see the word "misconduct" in a legal provision. Of course, here it is interpreted to mean, in Article 521, action which is not within the normal course of industrial action. A striker cannot break up the works and then say, "Oh well, it's not a breach of my contract of employment or other fault because I did it in a
strike". However, in itself, the strike does not break the contract of employment; the contract of employment is suspended.
"The review will include an examination of the law on the dismissal of strikers. We are committed to introducing any resulting legislation within the lifetime of this Parliament".—[Official Report, Commons, 12/2/02; col. 155.]
Therefore, it is on the agenda. It is true that it will come in in a review, but it is time that the debate began. As my noble friend Lord Lea will also explain in a slightly different amendment, the Bill raises the issue fairly and squarely before Parliament, and it is time that Parliament began to debate it.
"that one of the essential means available to workers and their organisations for the promotion and protection of their economic and social interests as guaranteed by the Convention",
is the right to strike. All except the United Kingdom have adopted the Social Charter of 1989, which affirms:
"The right to resort to collective action in the event of a conflict of interest shall include the right to strike".
The Charter of Fundamental Rights 2000 of the European Union, Article 28, affirms:
"Workers and employers, or their respective organisations, have in accordance with Community law and national laws and practices, the right to negotiate and conclude collective
21 Mar 2002 : Column CWH288agreements at the appropriate levels and, in cases of conflicts of interest, to take collective action to defend their interests, including strike action".
It is true that that includes the phrase "in accordance with national laws and practices", but a right which is given by the charter in accordance with national laws and practices, is not, most people believe, intended to be abolished by national laws and practices as it is abolished at the moment in the law of the United Kingdom.
"UK defiance in the face of international criticism would seem to flow from two complementary and inter-related factors. The first is the limited status of international conventions under UK law: there are no means by which to seek the enforcement of ILO Conventions and the European Social Charter in the national courts.
The second is the perception that economic dictates must take precedence over international obligations. This can be attributed to the pressures that UK governments have felt to attract and maintain international investment".
They there refer to some of the excuses given by some people for not observing our international obligations.
5.45 p.m.
Lord Lea of Crondall: Carry on.
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