I imagine I find myself in a minority in this House in not welcoming this Bill and in attempting to explain why. Some of the comments which have been made already mirror the sort of confused situation with which this Bill is an attempt to deal. I was particularly struck, for one thing, by the contrast between the two parts of Senator Dooge's speech. At the very beginning he said that what was proposed here was to limit the rights—and I may be doing him an injustice here— but he spoke about the Bill as doing something in a drastic fashion. The adjective used was "drastic". Later on in his speech, however, he referred to it as "a small step" and he spoke about the "narrow scope" of the Bill. Is it a drastic Bill or is it a small step? I think there is an unresolved contradiction in Senator Dooge's speech, and I myself go for the first interpretation. I think it affects the right of free association in this country in a drastic fashion. In saying "in a drastic fashion" I am echoing directly the words used by Senator Dooge.
When we think, for instance, of the fact that in this Bill it is proposed to exact from trade unions the sum of £5,000 to enable them to acquire negotiating licences, and when we reflect at the same time that it is possible for a person in this country to register a company for £2, a company that may do any amount of public and private mischief, I think we will have no difficulty at all in endorsing the first of Senator Dooge's two, I must say, conflicting interpretations of this piece of legislation.
I should like to move from that to a couple of general comments about the situation with which the Bill is designed to deal. It is a situation of confusion, perhaps in some areas of near chaos. Certainly there is an immense crisis of credibility in the trade union movement as a whole and there is a crisis of some kind, perhaps a crisis of frustration, in the area of government. What has been responsible for this general atmosphere of confusion? What has been responsible for the vociferous tendencies which produced the breakaway unions which this Bill is designed to control? To me it seems that there are two basic things here and they are very closely allied.
The first is a kind of absolutism in our thinking about almost everything. For very many people in this country, there is black and there is white and there is absolutely nothing in between. For very many people in this country something is either compulsory or it is banned. Again, there is no middle area. There is no area of option which people can understand. It has been suggested to me, and I endorse it, that this may have something to do with the moral absolutism that forms such a large part of Catholic teaching and in which such a large portion of our people have been brought up. But its effects are undeniable.
When disputes arise, the question of accommodation between the sides involved, if it is considered at all is only considered briefly. The more usual procedure is for the minority who disagree with what the majority want to do in any given situation to take themselves off into the wilderness, not necessarily for 40 days or 40 nights but probably for a great deal longer and to languish out there in the luxury of the belief that they know they are right, even if nobody else does.
This kind of procedure has a very definite advantage for the people concerned. They do not have to test the rightness or wrongness of their convictions by matching them against those of any other person or group. It is this elitism, this exclusivism, ultimately a sort of absolutism, that is basically responsible for the situation we are facing today.
The other side of this absolutism, the other side of the coin, is a tendency to schism. The late Brendan Behan, addressing the inaugural meeting of some society founded for some patriotic purpose the nature of which I now forget, before beginning his speech walked to the front of the platform and asked the assembled throng: "Are we all Republicans here," to be greeted by a mass roar of approval from the body of the hall. "In that case," he said, "the first item on the agenda is a split." To the best of my knowledge the organisation at whose inaugural meeting he was speaking did subsequently split. Not only did they split, but they are still split. This is something that, in our character and perhaps in our training and education, we have to take seriously.
I would have been pleased to hear from the Minister of any indication that legislation of the type he is proposing has been found necessary in any other comparable country in Western Europe. I do not think it has been. The situation with which this legislation is trying to deal is one which results from this absolutist splitting tendency in the Irish character and that is why the Minister has brought in this kind of legislation. It is basically an antidemocratic strain in our national character and one which we should earnestly strive to eliminate. However, the present Bill, for all its worthiness in many respects, for all the genuineness of the Minister's motives and those of the trade union leaders who have supported it here and elsewhere, does not seem to me to be the right answer to this kind of problem. The Bill, in my opinion, is inadequate for several reasons. In the first place, it is inadequate because basically it confuses two problems. It confuses the problems caused by the need to facilitate the merger of trade unions.
Let me point out here something which may not be known to many Members of the House. We had twice as many trade unions in the country in 1921 as we have today. Therefore, when we look at things in an historical perspective it may not be quite as bad as people think.
The Bill confuses two things. It confuses the need to provide mechanism whereby unions may easily and satisfactorily merge with each other and it confuses the second issue which is that of the accountability of unions internally, domestically speaking. I feel that the Minister's purpose would be far better served in regard to the first of these objectives by bringing in a very simple amalgamation Bill, perhaps on the lines of the amalgamation Act introduced in Northern Ireland in 1967, which would be non-contentious and, I would even go so far as to say, nonpolitical in character and which would be welcomed as such by the trade unions.
We are faced with a much greater problem when the Government, whether at the behest of the trade union movement or not, strive to introduce legislation into the area of union accountability. Union accountability, basically, is what we are discussing when we are talking about breakaway unions. We are talking about the credibility of the big unions, of union leadership, about democracy within trade unions and of communication within each union from the bottom to the top and vice versa. This area, as the Minister must realise, is incredibly sensitive and one into which any Government should be very slow to enter. It seems to me that this is an area which is, and should remain basically, the responsibility of the trade unions themselves.
I will not devote much time here to criticising the trade union movement. They get too much criticism as it is, most of it uninformed and some of it, quite obviously, malicious, but, I would ask them at this stage very seriously to reconsider their support for this kind of measure, for two reasons. First of all, must they really welcome, as trade unions, the intervention of Government and subsequently of legislation in an area of their own failure? Secondly, do they seriously think that this intervention and this legislation will act to remedy this failure? I do not believe the trade unions should welcome or encourage or ask for this kind of intervention. Furthermore, such intervention is ill-advised because it will not even achieve the ends it has set out to achieve. I say this with some regret, because obviously it would be very much to the advantage of all concerned if a very simple and short piece of legislation, such as this, could achieve the desired effects. Given the presence and state of the trade union movement at the moment, I would almost lay a wager that this Bill, far from improving things, will actually increase the sense of frustration and the sense of alienation, of being ignored, which has sponsored so many of the breakaway movements in the very recent past.
As I have said, my first reason for opposing the Bill is because it confuses the simple issue of union merger with the very much more complex and dangerous issue of union accountability. The second reason why I oppose this Bill is that, even taking for granted the areas of change which it tries to make, even taking for granted its goodwill and its attempt to improve the situation, its drafting seems to be open to serious question. I wish to put a few specific questions which I do not wish to go into in very much detail at this stage but nevertheless, I should like to draw the attention of the Minister to them.
The first of these arises in relation to membership. We have in one of the sections a requirement for the membership of trade unions which lays down a minimum of 500 members. The Minister may be laying up more trouble for himself here than he is aware of. How does one calculate the figure of 500 members? Is it an average? Is it at the beginning of the 18 months or is it at the end of the 18 months? I can foresee all sorts of thorny legal problems arising here which could be and may very well be exploited by minority groups in the field of trade unions in an attempt to discredit this Bill, to discredit larger unions, to discredit the Government and to discredit the whole process of industrial bargaining generally.
The second question I should like to raise with regard to the drafting of the Bill refers to the 18 months waiting period. The introduction of the 18 months waiting period has a particularly fierce effect of which the Minister may not be aware. In his introductory speech he said:
Should a group of 500 persons wish to form a trade union and be prepared to comply with the other requirements, such as the waiting period of 18 months, they could reasonably be regarded as a representative, responsible group and as such should be entitled to get a negotiation licence.
If at any stage during this 18 month period the group of persons concerned, assuming they are not involved solely within one employment, attempted to act in a representative, responsible way, in other words if they represented themselves to a number of employers as representing the people, be they 500 or 5,000, on whose behalf they seek to negotiate, they are committing a criminal offence under the law of the land and are quite liable to prosecution on foot of it. The Minister's speech is much too vague on this point. There is a built-in bias in the 18 month provision against the formation of any union under it because it lays down that during this 18 month period a union which wants to negotiate on a representative basis as such, is liable to criminal prosecution.
I am sure we are all aware of the psychological effect this would have on potential members of such a union. If I am a worker in a certain industry and for one reason or another I feel that a newly-formed trade union, at present without a negotiating licence, could represent me to my employers better than any other established union, I am likely to be very slow to join such a union if it is impressed on me that for at least the next 18 months, if not longer, such a union will not be allowed to negotiate on my behalf. I can see the point of the provision—it is to discourage people from joining breakaway unions—but this is an incredibly Draconian provision to insert in such a minor issue, comparatively speaking. In other words, you are using a sledgehammer to kill a mouse in this provision. The restrictions on the right to negotiate and also, I would imagine, on the right to strike which are introduced by this provision are quite incompatible with the constitutional guarantees about the freedom of association.
My third main point of criticism on this legislation is that, certainly in spirit and perhaps also in letter, it goes very much against the provisions of the European Social Charter which have been ratified by our Government. There are two articles in the European Social Charter which are directly relevant to this Bill and to the effects it attempts to create. They are Article 5 and Article 6. Article 5 is very brief so I propose to read it. In reference to the right to organise it states:
With a view to ensuring or promoting the freedom of workers and employers to form local, national or international organisations for the protection of their economic and social interests and to join those organisations, the contracting parties undertake that national law shall not be such as to impair nor shall it be so applied as to impair this freedom. The extent to which the guarantees provided for in this Article shall apply to the police shall be determined by national law or regulation. The principle governing the application to the members of the armed forces of these guarantees and the extent to which they shall apply to persons in this category shall equally be determined by national laws or regulations.
We are basically concerned with the first half of Article 5. I doubt if the question of the police and armed forces comes up under this Bill.
I should now like to quote from one of the most important bodies to have written on the subject, the Council of Europe Committee of Independent Experts on the European Social Charter. I quote from the Report and the Conclusions of the Committee of Independent Experts, Strasbourg, 1969-70. On Article 5 they state:
This Article sets out the principle that employers and workers have the right to form national or international associations for the protection of their economic and social interests. The Committee noted that two obligations were embodied in this provision having a negative and a positive aspect respectively. The implementation of the first obligation requires the absence, in the municipal law of each contracting State, of any legislation or regulation or any administrative practice such as to impair the freedom of employers or workers to form or join their respective organisations. By virtue of the second obligation the contracting State is obliged to take adequate legislative or other measures to guarantee the exercise of the right to organise and, in particular, to protect workers' organisations from any interference on the part of the employers.
I would stress again that the European Social Charter has been adopted by the Irish Government, not in its entirety. There are many aspects in which the non-ratification of this charter by our Government is a living disgrace to us but they have ratified it in broad terms and they have ratified Article 5 on the right to organise and Article 6 on the right to bargain collectively. However, at this point we begin to run into trouble because it emerges from studying the relevant documents that this ratification is very far from satisfactory. Again, I quote from the Report and Conclusions of the Committee of Independent Experts:
Unfortunately, the report submitted by the Irish Government was very often incomplete or vague and, consequently, the Committee was unable to decide on many points, including some of the most important, whether or not Ireland satisfies the obligations which it has accepted. In some other cases, it appears that the standard of social protection was inadequate in law or in practice to satisfy the provisions of the Charter. The Committee was well aware of the difficulty Ireland might find, in view of its general economic situation, in taking on certain burdens or introducing certain laws or regulations and it made considerable allowance for those factors. But it was bound to point out, even in spite of those considerations, that a considerable effort would be necessary before Ireland could be considered as satisfying provisions of the Charter on many points.
It so happens that Article 5 was one of the points on which the Committee of Experts concluded that the Irish Government did not satisfy the Charter —did not match up to what they said they would match up to when they signed it. Paragraph 38 of the Conclusions of the Committee of Experts on the right to organise noted that the committee wished to receive additional information on the following points:
(1) on the application by legislation and case law of the right to organise set forth, in principle, in Article 40 of the Irish Constitution;
(2) on the conditions for the granting of the negotiating licence enabling workers' and employers' organisations to indulge in collective negotiations, particularly on the question whether such a grant is subject to the fulfilment of objective conditions which can be reviewed by an independent and impartial authority;
It is quite clear from comments on the subsequent section of Article 6 that they feel that this country does not satisfy its obligations. In their comments on Article 6, which is paragraph 19 of the Conclusions, the Committee say:
The Committee considered that Ireland does not satisfy the obligation arising from this provision of the Charter.
That is the right of workers and employers to collective action.
The following restrictions on the right to strike in Ireland cannot, in the Committee's opinion, be considered compatible with the Social Charter:
(a) the restriction whereby workers belonging to a union which does not hold a negotiating licence under the Trade Union Act, 1941, do not enjoy the right to strike...
There are two other reasons, which are not relevant to the debate and which I do not propose to read, which they also gave for considering that this country in practice infringes the European Social Charter in respect of a provision which it has agreed and accepted.
Later on we come to what the Irish Government said in response to the representations made by the Committee of Experts. This is the report containing the conclusion of the Governmental Committee of the European Social Charter adopted on 4th December, 1970. In this document the restriction whereby workers belonging to a union which does not hold a negotiating licence under the Trade Union Act, 1941, is referred to again and it is printed alongside the comments made by the Irish Government. The comments made by the Irish Government on this question are very brief. They read:
... It is necessary to distinguish between the "right to strike" itself, and the legal protections for acts done in contemplation or furtherance of a trade dispute e.g. picketing. In the absence of a clear definition of the "right to strike", it is submitted that section 2 of the Trade Union Act, 1941, which reads:
Sections 2, 3 and 4 of the Trade Disputes Act, 1906, shall apply only in relation to authorised trade unions which for the time being are holders of negotiation licences and the members and officials of such trade unions, and not otherwise,
is not a denial of the right to strike.
When you get rid of all the verbiage, the words and the whereases and the heretofores, what you are left with is the word of our Government against the word of the Committee of Experts.
Even assuming that we give our Government the benefit of the doubt— and it is something that I am not prepared to do—we now have the situation in which even a legislative provision, which was adjudged by the Committee of Experts on the European Social Charter to be an abrogation of that Charter, is now being intensified. Frankly, I shudder to think what would be the reaction of the Committee of Experts to this legislation which is before us today.
They have already criticised strongly the provision in the 1941 Trade Union Act as a restriction on the right to organise. The Government have answered them after a fashion which I do not believe to be successful. We are now asked to double up, if you like, to make even more drastic regulations on the right to have freedom to associate. I should not be surprised if this was struck down by the Committee of Experts. They have no particular legal standing with regard to the European Social Charter, but they are a body of disinterested, expert and able lawyers. Any Government which ignore the stand they may take on any of our legislation are sailing into trouble.
Finally, this brings up a general point. In the past our record in international fields has been an honourable one. When we have signed agreements we have done so with a reasonably clear appreciation of what was involved and with a pretty genuine intention to implement the obligations we assumed under these international charters, treaties and agreements.
Looking at the European Social Charter and at the sections of it which we have agreed to without reservation, and comparing them with the legislation before us today, I am afraid that we are entering the era when international agreements are being ratified solely for propaganda purposes. This is wrong in itself. It is also a betrayal of our record in the field of international relations. For this reason, with every deference to my friends in the trade union movement, I must oppose this Bill. I can see, and I try to analyse the reasons—and they are serious ones— why it is being introduced. I do not believe that the seriousness of the reasons which have prompted this Bill can justify the limitations which it places on the right to organise.
