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Baroness Miller of Hendon: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Turner of Camden moved Amendment No. 52:
"( ) In section 221(2) of the 1992 Act (restrictions on grant of injunctions and interdicts) for all the words after paragraph (b) to the end substitute "the court shall, in exercising its discretion, not grant an injunction if the applicant has not shown that he is likely to succeed at the trial of the action"."
The noble Baroness said: I am very sorry that my noble friend Lord Wedderburn is not here today to move this amendment because it is the kind of issue that he would be rather keen on. I know that he has strong feelings about it.
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The intention of the amendment is to provide that an injunction should not be granted against a union unless the employer can show that he would be likely to succeed if the case went to a full court hearing. The reason for that is that from time to time injunctions have been sought and obtained against unions even when a threatened dispute was being conducted in accordance with the full requirements of the law. Nevertheless, the courts occasionally grant injunctions. The effect of that is to interfere with the right to conduct effective industrial action. As anyone who has had to run an industrial dispute knows, timing is often crucial. The delaying effect of an injunction, even though when the case is heard in full in the court it is lost because the union has followed the correct procedures, is serious.
I understand that there have been several unsuccessful attempts to change the law in this direction since it is manifestly unfair to unions. If the injunction is granted but not complied with, the union is obviously in contempt of court and could be fined. Eventually that may take the path that leads to the sequestration of assets and so forth.
I hope that, on this occasion, the Government may be prepared to consider what we are saying sympathetically. The law is not even-handed between employers and unions in this respect. Until it is, the positive right to take industrial action in accordance with the provisions of the ILO conventions which our Government support, and which we in the trade union movement have always supported, should be protected. I hope that my noble friend will be prepared to be sympathetic to this amendment. I am sure that he knows all about it because it is not the first time that this subject has been raised. I beg to move.
Baroness Miller of Hendon: I am sure that the noble Baroness is correct to say that this is exactly the sort of amendment that the noble Lord, Lord Wedderburn, would have moved had he been able to be with us today. I believe that he is not very well. I hope that he is making a good recovery and that in due course we shall see him moving amendments and so forth in his customary way.
I have listened carefully to the noble Baroness and I wish to put a brief question to her. Am I right in understanding that the court already has the power under civil practice rules not to grant an interim injunction if it does not think it reasonable to do so? If that is the position, I can say only that perhaps the amendment is not necessary.
Lord McCarthy: No, unfortunately that is not the position. Although it has not been brought out into the open, we are dealing here with the effect of the American Cyanamid v Ethicon case. That was not a case in the field of industrial relations, but in the commercial field. Essentially, before that ruling, it was not possible to impose an interim injunction unless a number of things could be established, most important of which was that there had been some wrongful act. Therefore if the American Cyanamid case had not
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been brought, so long as someone acted within the protected period of around eight weeks, they would not be liable to an injunction.
The worry is that, because of the way common law works, that case has naturally been transferred over into industrial relations law, so that now someone only has to have a serious case to consider, and the process then starts. That does not mean that if the court decides to consider the case that the injunction will be granted. The noble Baroness is quite right: it could decide against. But we are concerned about the basis on which it could decide to impose an injunction.
No one can deny that an interim injunction is effective because the penalties that follow on defiance of an interim injunction are horrendous. On the other hand, an injunction is no real problem because it will take a long time to get there; there will be further and better particulars, which will go on and on; meanwhile the strike will go on.
However, there have been industrial relations cases where employers have applied for an interim injunction and it has been granted over the weekend. Once you get the first trip into consideration, as a result of the Ethicon case, then all the court must consider is whether the damage to the employer will be worse than the damage to the union. If the court decides—there have been such cases—that the damage to the employer is horrendous, immeasurable or horrific, whereas the damage to the union is negligible, it will grant the injunction.
It is not easy, but it is not too difficult, for an employer to produce evidence to show that a particular strike at a particular time will have very substantial consequences in terms of lost revenue, disruption and impact on the general viability of the firm. That can all be added up and a conclusion reached; it looks very impressive. But if the union can be subject to an interim injunction, even if it has obeyed the law, it will be very difficult for it to make or sustain the argument that putting off the strike compares with the easily calculable costs of the immediate strike to the employer. Therefore, they will almost always lose. The union will be talking about intangibles, saying that the dispute has been going on for a long time; that they have had a ballot; that they have done all kinds of other things to obey the law; and now they will have a strike. They may even be on strike and the strike may be winning or at least looking solid. But it will suddenly be called off indefinitely until the injunction comes to be heard in the normal process. It is the end of the strike. From the union's point of view, the strike has been destroyed by the granting of an interim injunction over the weekend.
Once again, that does not happen in other countries and they seem to manage it. So we ask the Government to consider, not going back to the pre-Ethicon formula, but something rather less definite, precise and significant. We ask merely that lawyers look at the evidence and decide whether they are likely to succeed
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if a trial went forward. Lawyers can look at the evidence one way or the other; all we suggest is that they do not act quite so automatically.
Lord Triesman: This amendment seeks to change the matters to which the courts are to have regard when deciding whether or nor to grant an injunction against a proposed industrial action. I wholly accept that injunctions can have a critical impact on the progress of a dispute, that timing is fundamental and the stakes high for both parties. The union stands to lose the impetus in its handling of the dispute if the injunction is granted and the employer's business will be disrupted if the industrial action goes ahead. In the midst of all that it is important, therefore, that the arrangements concerning such injunctions are fair and reasonable.
This amendment seeks to bring about a significant change in industrial action law. My noble friends would like to see various other far-reaching changes to the law in this area. I acknowledge that this is certainly as far reaching as any of those other changes. However, on taking office in 1997, we said that we would retain the key features of the law on industrial action. We reiterated that commitment during last year's review of the Employment Relations Act 1999. The Government consider the main features of the current law to be workable and that unions have, by and large, successfully adapted to them.
We have taken steps, however, to simplify and clarify aspects of the law. I do not think that we are slicing it away, as has been suggested; I hope none the less that we are clarifying it. Our proposals on industrial action notices fall into this category. As a result, there should be less scope for unions to fall foul of the law through minor, technical slips. That can easily happen, and it can be extremely aggravating. It should be easier for unions to show that their proposed line of action is lawful and, accordingly, that the statutory immunities apply.
When contemplating a request for an injunction, the court must look at the likelihood of a union establishing that it would have the protection of the law if the case should reach a full hearing. The amendment seeks to transfer this responsibility to demonstrate likely success to the employer or other claimant. This would be a retrograde step. The union is, of course, in a better position to know what has actually occurred; it is its actions, or failures to act, that are at issue. Therefore it should have the information at its disposal to show where the facts of the case lie and to argue, in the light of those facts, however complicated, how it complied with the law.
I have referred to "the union" and will continue to do so, but it is worth bearing in mind that in principle Section 221(2) applies equally to acts done by others that they believe to be in contemplation or furtherance of a trade dispute. Though the onus is placed on the respondent, the claimant still needs to show that he has an arguable case and to demonstrate that there is a serious issue to be tried. This ensures that frivolous or weak claims cannot get very far in the process. So it is
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not accurate to depict the current injunctive system as providing an automatic or easy way for the employer to spike the union's guns.
I fully appreciate that the law in this area impacts on the balance of power in industrial disputes. I understand that my noble friends want to shift that balance of power a bit more towards the union. As I have stated, that runs contrary to government policy. I can recall in the discussions that led to the 1999 Act my honourable friend Ian McCartney setting out how those balances across the whole of the system ought to work. That did show what the policy was going to be, and we are adhering to that policy this evening. In no sense is it altered. I therefore urge my noble friend to withdraw the amendment.
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