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Lord Razzall moved Amendment No. 87:

"UNOFFICIAL INDUSTRIAL ACTION (1) Section 237 of the 1992 Act (dismissal of those taking part in unofficial industrial action) is amended as follows. (2) After subsection (2) insert— "(2A) The Secretary of State shall make appropriate arrangements for the provision of penalties to be incurred by an employee who takes part in an unofficial strike or other unofficial action when a member of a trade union. (2B) The Secretary of State shall make appropriate arrangements for the provision of penalties to be incurred by a trade union when it is considered not to have acted in a manner appropriate to the discouragement of an unofficial strike or other unofficial action. (2C) The Secretary of State shall consult such persons as he considers appropriate on the form penalties will take and shall publish the responses received pursuant to those consultations.""

The noble Lord said: My instinct tells me that I shall not receive the same support from the Government as I did on the previous amendment.

To some extent this is a probing amendment. However, it also seeks to make a substantial point. If we are to have another Employment Relations Bill—this is the third or fourth that we have had in recent years—we on these Benches believe that the opportunity should be taken to deal with the issue of unofficial strikes. Those of us who travel on the line from the Hammersmith tube depot to central London—or, indeed, who are reliant on certain areas of the Post Office—do not need to go too far to know that there are significant difficulties at the moment with unofficial strikes.

The purpose of the amendment is to make absolutely clear that penalties will be imposed on trade unions which are, unofficially but tacitly, encouraging unofficial strikes. I suspect that the Government position is that they do not want to get involved; that these are matters for the employers, who have perfectly sufficient remedies if they wish to get involved. However, when we are talking about quite significant areas of the public sector, I do not think that the Government can simply say that it is only a matter for the employers. They should take powers to provide for penalties being imposed on individuals and unions in such areas. I beg to move.

Lord McCarthy: The concordat is dissolved. What does the noble Lord mean by "penalties"? After all, the late Conservative government left us in a situation, embodied in the consolidation Act, in which there is no doubt at all that if workers go on strike without constitutional authority, without a ballot or without the support of their executive, they are acting unlawfully, wrongfully, and employers can if they wish dismiss them. That is quite clear.
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It is also quite clear under the consolidation Act 1992 that, unless the unions, in a sense, disavow such workers and separate from them—unless in the end the unions take action against them—they, too, can be made liable. Indeed, in the past, in the Conservative government's period of office, they were. The miners' strike was all about that. So there are powers. By golly, the powers are there.

The reason why we do not read much about the use of the powers is that we have a very low level of strike activity—I know it does not feel like it if you travel on the London tube now and again—the lowest for a very long time. That strike activity, on the whole, is official. The one thing the Conservatives did with their legislation, their series of Acts, was to make trade unions responsible for the use of industrial action.

But if someone says, "We want to go further"—I think this is what the noble Lord is saying—they cannot be asking for more powers for employers because they already have powers that they do not use because they think it is counter-productive in terms of industrial relations. That is their right. So the powers must be there for the Government.

In that context, we come to the meaning of "penalties". Surely they are criminal penalties of some kind. They cannot be contractual penalties because no contractual issue is involved. The noble Lord must be saying that we should go back to the early 1970s and to the Industrial Relations Act 1971. Then, the government were given a whole range of criminal sanctions, which of course the Thatcher government were much too clever to get into. That must be what he is saying. I do not think that that would help or that the Government would do such a thing, but I want to know whether I have got the matter right.

Lord Razzall: I am perfectly happy to elucidate for the noble Lord. As I said at the beginning, this is a probing amendment. However, if one reads proposed new subsection (2C), the whole point is that the Secretary of State would consult all sides of industry and anyone appropriate, including the noble Lord, to decide what penalties were appropriate in what circumstances.

The purpose of the amendment is to flush out the Government's position on what is happening in certain sectors of industry. Of course I take the point made by the noble Lord, Lord McCarthy, that strikes in British industry, the public services and the public sector are at their lowest ever number. However, there are certain black spots which show no signs of getting any better, where there are significant allegations of trade unions being involved behind the scenes, or of encouraging or turning a—I was going to say a black eye; often the people who turn an eye in those disputes do get a black eye—blind eye to what is happening and tacitly encouraging it.

One purpose of the amendment is to obtain a clear statement of government policy. Are the Government saying that it has absolutely nothing to do with them when the people of London are disadvantaged by
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unofficial strikes and where care is taken by the union to avoid overt actions? It is a perfectly understandable position but, if that is what they are saying, they should say so. That is the purpose of the amendment.

I believe that the Government should move further. At present, the two most prominent examples are to be found in certain branches of the Tube system in London and in the Post Office and the Royal Mail, where there are clearly significant problems of this nature. Do the Government propose to do anything about the issue or are they simply saying that the law as it stands is perfectly satisfactory?

Baroness Miller of Hendon: When the noble Lord, Lord Razzall, moved his amendment, he started by saying that his instinct was that the Government would not accept it. Although he did not say so, I suspect that he might have thought that my instinct was to welcome such a probing amendment in order to flush out the position. The truth is that the public are totally inconvenienced by these strikes in that kind of quasi public sector.

My only other comment has nothing to do with the amendment, but, as an aside, has to do with the language that the noble Lord, Lord McCarthy, used. He talked about the "late" Conservative government. In future, I should prefer it if the term "former" Conservative government were used. "Late", to me, means that someone has passed over. When we have just done so extraordinarily well in terms of the share of the vote in the three elections that have been held, I do not think that the word "late" is correct. The Conservative Party is alive and kicking.

Lord Triesman: I shall resist any temptation, difficult though it is.

Lord Razzall: Do not go there!

Lord Triesman: The amendment seeks to significantly tighten up the law governing unofficial industrial action. I believe that it could be based on what might be three flawed presumptions. The first is that unofficial action is widespread. I shall come back to any estimates we can make of the amount of unofficial action, but in 2003 the number of days lost during strikes was a shade under half a million, 499,000; whereas the days lost in industrial action in the 1980s on an annual basis were around 7 million days per year. So, we are not talking of a huge phenomenon.

The second presumption is that the existing law is weakened and does not deter such action. I want to address that specifically. The third presumption may be that each case, however rare or infrequent, is none the less very grave and causes disproportionate inconvenience. I think that I have heard that point around these tables. The problem there is that to legislate for everyone right across the whole of the trade union movement on that basis would be punitive and probably would not succeed.

On the first point, there is no evidence of an emerging problem that requires yet more controls and penalties to be introduced. Occasionally, it is true that
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large or high-profile strikes do occur. That is part and parcel of living in an open and liberal democracy in which people have the right to do that. It is the nature of unofficial action that it is short lived and usually represents a spontaneous reaction by the workers concerned to an incident at work.

Official statistics do not distinguish between official and unofficial action. Therefore, it is right to say that there are no truly reliable figures on which the Government can rely in this area. However, because stoppages are at an all-time low, there is no indication that unofficial strike action has significantly risen.

Reference was made in the other place to research undertaken by Dr Gregor Gall of the University of Stirling, who is an authority on unofficial action. According to his estimates, unofficial action accounted for about a quarter of the days lost in 2003. That is certainly an increase over earlier years. However, the figures on days lost through unofficial action vary considerably from year to year and are dependent on the occurrence of a few larger strikes, which may distort the figures and make one year look particularly bad. Where such larger strikes do take place, they are normally of very short duration. It follows that although unofficial action remains a feature of our industrial relations, the data that Dr Gall produced do not suggest that it is a dominant or highly problematic feature.

On the second point, British industrial action law already contains powerful disincentives for those taking or contemplating unofficial action. For the individual concerned, there are no protections against dismissal. In practice, workers think very hard indeed about taking any form of industrial action in any case because a loss of wages always results, but in the case of unofficial action, the chances are that workers risk losing their livelihood.

Perhaps noble Lords feel that under the current arrangements unions can tacitly support unofficial action that their local officials may be encouraging. I believe that that is the burden of the point put today. I should point out that unions can also lose their immunities if that is the case. My noble friend Lord McCarthy made that point. Large penalties could then follow, of up to £250,000 depending on the number of members in the union. To avoid such very serious consequences, the union must—I put the word in quotes to emphasise it—"repudiate" the action as soon as reasonably practicable after it has come to its knowledge. In other words the union must take steps publicly to dissociate itself from the action. I say from experience that that is generally done with a good deal of energy because the size of the possible fines, much less the seizures of properties or sequestrations that can occur are a very powerful disincentive in those circumstances.

The repudiation must be undertaken by the most senior figures in the union—that is, the executive, president or general secretary. It is therefore not a matter that can ever be delegated to a minor official
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who carries no weight or authority among the membership. A written notice of the repudiation must be sent to the union committee or official concerned. Local lay representatives can be left in no doubt that they should not be instigating or supporting the action.

The union must give written notice of the fact and date of repudiation to every employer concerned, and do its best to give such a notice to every individual member of the union who could be involved. Many hundreds of letters—many thousands in some cases—would therefore be involved. The written notice of repudiation must contain a statutory warning which reminds the members that while taking unofficial action they have no right to complain of unfair dismissal. Individuals could not be unaware of the risks that they would be taking.

The overall effect of the provisions is that, if union officials have anything to do with the organisation of unofficial industrial action, the union would have a choice: it could let the action continue, in which case the organisation of that action will be the legal responsibility of the union—although, in practice, as it will not have been balloted, it will have been organised unlawfully—or, alternately, the union can repudiate it in the way I have described.

The steps needed to repudiate effectively are by no means trivial. Indeed, unions regularly complain that they regard them as very onerous. Moreover, the law requires the senior figures in the union, after repudiating the action, to behave in a way consistent with the repudiation; there is no shilly-shallying about that kind of operation, nor can there be. That stops the union repudiating the action one week and then acting to support it soon afterwards, or from one day to the next. It means that unions must continue taking action to ensure that their lay representatives do not organise or direct the unofficial action.

I hope that I have demonstrated that there are strong disincentives in the law against taking or organising unofficial action for both unions and individuals. The amendment would create two powers for the Secretary of State to "make appropriate arrangements" in relation to industrial action.

The first power, outlined in subsection (2A) in the amendment, relates to arrangements for the provision of penalties for union members if they take unofficial action. The second power, outlined in subsection (2B) in the amendment, relates to arrangements for the provision of penalties for a union "when it is considered" not to have acted in an "appropriate" manner to discourage unofficial action.

There are real problems in the wording. For example, it provides no legislative mechanism that would be subject to parliamentary scrutiny, whereby the Secretary of State could make,

The proposed penalties on unions could perversely create more unofficial action, inspired by factions within a union that wish to embarrass the leadership. One or two of the examples given in this Room could very well fall into that category on occasions. That
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situation would come about if every action by any union member could lead to a penalty being imposed on the union itself. However, the truth is that the second power is also not necessary; the existing law already prevents unions giving surreptitious support to unofficial action.

We have no intention in the legislation to release unions from their obligations in that regard. I again want to make that completely clear. That is why the amendment is not necessary. From experience, I believe that it could be counterproductive. For those reasons, I urge the noble Lord to withdraw his amendment.

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