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Lord Davies of Oldham: I know that the noble Baroness feels strongly about the issue because she raised it at Second Reading. It gives us the opportunity to clear up what might be a misinterpretation.
Important though a ministerial statements are on all occasionswe all weigh our words with the greatest of care and no one is better at that than the present Secretary of Statewhen the courts are looking at what Ministers intend, they are looking at something different from a response to an interjection in a winding-up speech. That is when a particular point is made and a Minister responds.
It would not be on every occasion that we would think that all ambiguities could be avoided. Sometimes the question itself can be slightly misunderstood. We have all made that mistake. In any case, interjections are part of the cut and thrust of debate. Therefore, when the noble Baroness says that it is important that ministerial statements form part of our legislative process because Minister's comments are often partly taken into account in future judgements, that is on a more substantial basis than a response to an interjection from a Back-Bencher from whichever side of the House. It happens very much in the context of a statement introducing a Bill or, perhaps, at the final Third Reading stage when a considered position is put forward by a Minister.
In this case a great deal is being made out of a small development. The Secretary of State was referring to Clause 7 of the Bill. The clause tries to permit as many people as possible to vote in recognition and derecognition ballots. It does that by providing for postal votes to be accorded to workers who are absent from work on days when workplace ballots take place. In this way workers on sickness or maternity leave or
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staff on residential training courses can exercise their entitlement to vote. The objective of the clause is a laudable one to which we can all subscribe. Its effect is to reduce the number of unintentional abstentions during these ballots. The turnout, and therefore the broad representativeness of the ballot, should increase at the margin as a consequence of the provision.
It follows that my right honourable friend's remarks do not imply that the treatment of abstentions will be changed, as the noble Baroness was kind enough to recognise. The Bill does not change the concept of abstentions and how they will be treated and that is not the intention behind the Government's proposals. When workers decide not to vote at all, the CACas the noble Baroness agreedshould not draw any inferences about such preferences. Under the current statutory procedure, abstentions have their normal meaning as votes that are neither in favour or against the proposition in question. I am grateful for a further opportunity to put on the record that that will remain the case. That is why the amendment has given us the chance to clarify what I believe has been a misinterpretation of what occurred in the other place. I consider the amendment to be unnecessary because it is not intended that any change should be effected in this matter.
I should add that the Bill does not change the 40 per cent rule, either. We will debate separate amendments to be moved by my noble friends on the 40 per cent rule and we will be able to deliberate further. For now I am responding to this amendment and, I hope, with the assurances that I have given, that the noble Baroness will feel able to withdraw it.
Baroness Miller of Hendon: That is an unusual answer. I made it clear that the Bill does not change the matter. But I also said that the issue was raised in the other place when someone asked the Secretary of State if she would please look again at these rules, because, in effect, they count abstentions as "no" votes. That was the precise point that was raised. The Minister did not shoot that down out of hand and simply said that it was an important point that the Government would look at during their review of the 1999 Act.
If they abstain, it would count as a "no vote". That is not returning to my comments that it was not in the Bill, but I was talking about the interpretation that judges might put on the matter. I can tell the Minister that I have taken legal advice on that particular point. The Minister said that it would not be counted as something important. If that is the case, it would be extremely easy to put it on the record that I am correctthat if someone abstained it would just mean that they had not voted and would count as a "no vote" with no other obligation. That is all that the
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Minister needs to say, but I do not believe that I heard him say that. If I missed a couple of words, he will not mind repeating them so that they are on the record.
I sought to agree with the noble Baroness that there should be no change. I explained that, as I understood the position, there was no intention to make any change, nor could there be, as a result of an exchange in the other place between a questioner and the Minister. That would be fresh interpretation of the legislation, particularly as it is still passing through this House, and we have another opportunity to put it on the record that we do not intend to change the status of abstentions. That is the basis upon which I hope the noble Baroness will withdraw the amendment.
Lord McCarthy: Is it not the case that this is all rhetoric? In a sense that is right. At least 40 per cent of the workers constituting the bargaining unit have to vote for recognition. If 80 per cent of the workers constituting the bargaining unit abstain, one cannot reach the required figure. It does not affect the result. It is rhetoric.
Baroness Miller of Hendon: That was not the opinion of the noble Lord's honourable friend in the other place when this matter was debated. In any event, I shall certainly withdraw the amendment and look carefully at what has been said. But I have to repeat that sometimes, when a court is asked to decide on the true position of a case, it can take into account what is said during the course of the passage of the Bill and compare it with what the Bill says. It can be that one is different from the other. That has happened in many cases. The Minister said that this is a trivial point and that it would not apply. It does apply in some cases and it is necessary to have the matter on the record for the sake of clarification. I beg leave to withdraw the amendment.
The noble Baroness said: I shall speak to Amendments Nos. 17 and 18 together. They relate to the problem, or potential problem, of coercion or intimidation during the recognition process. Unfair practices in relation to recognition ballots is a general concept with which no one could disagree, but strangely enough, it was not in the Bill that was originally presented to the other place.
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This new clause, which I suppose was an afterthought, because it was not in the original Bill but was in the Bill brought from the other place, introduced additional burdens on employers for when they are notified of the requirement to arrange a ballot on recognition. Employers have argued that these are extremely onerous and inappropriate and the Government have not given sufficient justification for this late insertion into the Bill. Certainly, they have not pointed to any case, event or practice that justifies it. However, the substantial amendments to the Bill introduced by the Government on 24 May go a long way, in my view, to meeting those criticisms, and I will revert to that when we discuss these government amendments.
One specific issue in the new measures is the meaning of the words "undue influence" in new paragraph 27A(2)(f) to Schedule A1 of the 1992 Act. As an aside, that jumble of descriptions of the position of the paragraph shows what a nightmare jigsaw the current legislation is. I do not dare make another plea to the noble Lord, Lord Triesman, for an early consolidating Act.
"Undue influence" is a legal term of art, with a specific meaning assigned to it by judicial decisions going back a very long time. I found one case decided by your Lordships' House in 1857almost 150 years ago. That is the leading case, and the then Lord Chancellor, Lord Cranworth, ruled that the essential element of undue influence was "coercion or fraud". The need for that essential ingredient has been followed in many subsequent cases. In 1885, the president of the probate and divorce division said,
Amendment No. 17 removes the inappropriate legal phraseology from the Bill and removes the temptation for some lawyer or other to try to suggest that normal reasoned argument or a moderate attempt at persuasion by an employer is somehow improper. It substitutes the plain simple concept that coercion is an objectionable and forbidden practice. With that word, there can be no argument as to what is or is not permitted.
Amendment No. 18 to this same provision makes it clear what its objective is, and introduces an element of even-handedness between the employer and the union, since it proscribes using coercion to persuade a worker to vote either for or against the proposition. I beg to move.
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