§ 8.0 p.m.
§ Consideration on Report resumed.
§ LORD STOW HILL moved Amendment No. 89A:
Page 141, line 46, at end insert—
(4) Where a joint application for an approved closed shop agreement has been made to the Industrial Court under the provisions of paragraph 1 of the Schedule 1 to this Act, the Industrial Court may by such an interim order, on the application of any party to such joint application as aforesaid, make an order that any closed shop agreement which immediately before the coming into effect of Part II of this Act was in operation between any two or more parties to such agreement shall continue to be in operation between the parties thereto, and shall, so far as reasonably practicable, be deemed to have remained so in operation from the date of the coming into effect of Part II of this Act until the making of such interim order, subject to such changes, it any, in the terms of such agreement as may seem to the Industrial Court to be just and equitable, and shall continue to be so in operation for any period up to and until the making by the Industrial Court of its final order on such joint application.")
The noble Lord said: My Lords, I move this Amendment with some trepidation and without very much hope that the Government will feel able to accept it. This Amendment, and also Amendment No. 89B (if the House will allow me, in order to save time, to refer to that Amendment in the same speech) are designed to afford a new approach to the much vexed question of the closed shop. The approach is new in this sense. At the moment, we have reached the point in Schedule 3 at which the Court is empowered to make interim orders. The
Court is enabled to make by way of an interim order any order which it could have made upon a final disposing of any matter which is brought before it. That power is given by paragraph 22, and the relevant words read that the Court is empowered
to make, as an interim order, any order which under this Act the Court could make as a final order in the proceedings".
My Lords, I am not quite sure that those words are very clear. One does not know what state of information the Court is assumed to be acting upon, and therefore it is not altogether easy to answer the question, "What is the final order that the Court could make in those proceedings?" But I take it that what is meant is that the Court could make by way of an interim order any order which it could make as a final order upon the assumption that it had the necessary evidence and material upon which to make such a final order.
§ The approach in Amendment No. 89A is somewhat different. As I have previously submitted to the House, there is a kind of lacuna in the arrangements made and embodied in Clause 17 of the Bill with reference to approved closed shop agreements. When the Bill becomes an Act, the situation will be that up and down the country there will be a number of closed shop agreements which are, and have been in many cases for many years back, functioning perfectly satisfactorily. We have discussed previous Amendments designed to preserve those existing closed shop agreements, but without successfully persuading the Government to agree to any of them. What the first Amendment, Amendment No. 89A, purports to do is the following. It assumes that a perfectly normal joint application for a closed shop agreement has been made to the Industrial Court under the provisions of Clause 17 and Schedule 1 to the Bill. It assumes at the same time that there is in existence a closed shop agreement complete in form, with all its terms well tried in actual experience, operating to the satisfaction of everybody and producing a state of orderly relationships and orderly negotiations in the particular sector of industry to which that closed shop agreement relates.
§ The Amendment is based upon the view that it really is most unfortunate if the effect of the Bill is going to be that, 285 in a situation in which both parties have asked for an approved closed shop agreement and there is already in existence a perfectly satisfactory closed shop agreement, that closed shop agreement must be brought inevitably to an end; that the parties are going to be put to the necessity, after a lapse of time, of trying to pick up the pieces, of trying to put the thing together again, and embodying them in an agreement which the Industrial Court ultimately sanctions. It would, so the argument runs, be infinitely simpler, and conduce so much to the interests of the parties to the joint application, if, while their application for an approved closed shop is under consideration and is passing through the various stages which, under Clause 17 and Schedule 1, it has to pass, the existing closed shop agreement could be maintained in operation. It is purely an interim arrangement.
§ It is not as if I am here asking the Government to agree that the existing closed shop agreement should be sanctioned and kept in being for good and all. Not a bit of it. It is simply, if this Amendment is accepted, given an interim period of life until the Court can make an order upon the application for an approved closed shop agreement. That is what this Amendment does. The relevant provisions are that the Court can order that any closed shop agreement which, immediately before Part II of the Bill comes into effect, was in operation, shall, so far as practicable, be deemed to have remained so in operation from the date of the coming into effect of Part II of the Bill until the making of such interim order, subject to any necessary change, and thereafter it shall continue to be in operation until the final order is available from the Court on the joint application. My Lords, that is what the first Amendment does.
§ If I may have the agreement of the House to discuss now the second Amendment, No. 89B, as I proposed to the House a short time ago, the approach is rather different. Again, it assumes the existence of a perfectly satisfactory closed shop agreement. It would enable either party to that agreement to ask the Industrial Court to order, again by way of a purely interim measure, in order to safeguard for a period of time the existing position, that the existing closed shop agreement should continue for a period 286 not in excess of a year. If the parties wish, or either party wishes, to avail themselves of that procedure, the Court is enjoined, on receiving an application for that purpose, to send the matter straight away to the Commission, and the Commission then has to say whether there is in its opinion a prima facie case that the conditions set out in paragraph 5 of Schedule 1 to the Bill (which we have discussed almost ad nauseam) are satisfied, and the Commission must report its decision on that to the Court as soon as possible. If the Commission reports in the affirmative, the Court then, as I have said, by way of an interim order, can continue the existence of the existing closed shop for one year. At the end of the year, that interim order expires, but it can be kept in being by a further application for an interim order for another year.
§ In other words, the interim order does not necessarily come to an end at the end of the year. Its life can be prolonged by a further application. That is the scheme in the second Amendment. The first Amendment assumes a joint application. The second Amendment permits of a unilateral application, but if there is a unilateral application it cannot proceed without the sanction of the favourable advice of the Commission. The Court refers it in that case to the Commission, and cannot make the order unless the Commission reports favourably that the conditions in paragraph 5 of Schedule 1 are shown to be present.
§ Those are the two alternative schemes. They are purely of an interim nature, and designed to achieve the very limited objective of keeping in being for a short time while the parties can, as it were, rearrange themselves, an existing closed shop agreement which has functioned perfectly satisfactorily over a period of time. It is based upon the submissions that it really will be a disastrous pity if all these excellent closed shop agreements tumble to the ground as soon as the Act comes into force. That is the way to chaos, and these proposals are designed to obviate that. I formally move the first of those two Amendments.
§ LORD DRUMALBYN
My Lords, I am grateful to the noble Lord for taking these two Amendments together and explaining them so clearly. The noble Lord has been at immense pains to try 287 to devise some kind of scheme which will be acceptable to the Government. This is a difficult task he has set himself, because of the complexity of the arrangements involved. I am bound to tell the noble Lord that he has not quite succeeded yet. I think that his main premise is not right. It is that there is bound to be a lacuna, bound to be a gap.
At an earlier stage I drew attention to the fact that the Bill would be brought in by stages, and I would have liked to be able to give more details of that at the present time. Unfortunately the scheme has not yet been put in its final form, but I can at any rate tell noble Lords this. It is a matter that we have been considering very carefully indeed with a view to ensuring that the sequence of bringing into operation the various parts of the Bill will be logical, and that the transition from present arrangements to those which will be necessary under the new legislation will be such as to give industry a reasonable opportunity to adapt its agreements. Perhaps I could just say this in general terms—I think I have mentioned it before—the first stage must obviously be registration. The Registrar as soon as may be has to set up a register and so on, and then the Court has to be set up and its rules have to be written.
Until that has happened there can be no question of bringing into effect Clause 5 of the Bill and all that goes with it, so that quite an appreciable time must elapse between the time when the Bill actually passes, Royal Assent is given, and the time when this part, the material part from the point of view of the kind of agreements we are discussing here, will begin to bite. That being so, I think that the noble Lord's worst fears should be misplaced. I cannot be more positive than that until the final scheme has been made, but it is our intention that this sort of lacuna he is referring to will not exist.
But, my Lords, apart from that, supposing there is a gap, this Amendment on the face of it is a very reasonable attempt to deal with the problem. It would only apply where a joint application had been made, as the noble Lord said. It would only apply where a closed shop had been in operation prior to the 288 coming into effect of Part 2 of the Bill, and it would seem therefore not unreasonable to permit that closed shop agreement to continue to operate temporarily until the Court had had a chance to consider the application. I think this is the Alb-stance of the noble Lord's suggestion.
On looking closely at the Amendment, I am bound to say that it certainly does present aspects which are not very acceptable to us. To begin with, it is not solely applicable to the initial interim period during which by some mischance a gap might occur. It is applicable at any time after Part 2 has come into effect. If there was a closed shop agreement in operation immediately before that time—and the intention is, of course, as far as possible that those who are unlikely to pass the test of an approved closed shop will make arrangements in the intervening period for acceptable agency shop agreements—that closed shop agreement, under the Amendment, could be deemed to have remained in operation until the interim order is made; and from the making of the interim order the reactivated closed shop agreement will be fully and actually in effect until the Court makes its final order on the joint application.
I must draw attention first to the fact that the closed shop agreement which will be deemed to have remained in force is described as "any", and this will include, the face of it, to pre-entry closed shop agreement. If that is the intention it could not be accepted. I think it would be void to that extent under the Bill. I should also draw attention to the duration of this revised closed shop agreement. It will remain in effect—and the words say—until the making by the Industrial Court of its final order on such joint application".In cases where the Court approved the closed shop agreement under Schedule 1 that is a definite date, but the Court is not required to make a final order if the report of the Commission does not recommend approval. All that happens under Schedule 1, paragraph 7, is thatin that case the Industrial Court shall not proceed further.Similarly in paragraph 15, if the C.I.R. recommends the application but on a 289 ballot the proposals do not secure the necessary majoritythe Industrial Court shall not approve the proposals.This means that in the event of an approved closed shop not being approved as a result of the application, the interim order, and so the closed shop, which had existed prior to the Bill coming into operation, possibly a pre-entry closed shop, could continue in force indefinitely. This would not be acceptable. I think that the noble Lord drafted his Amendment on the assumption that a final order of the Industrial Court would be necessary to reject the application for an approved closed shop agreement as well as to approve it. That is not so.
Finally, it seems to me, on a close examination of this Amendment, that its effect could be to legitimise retrospectively any closed shop operated during the period from the implementation of Part II of the Bill until an application under Clause 17 had been made, however long that period may be. Presumably, any complaint by an employee during that period could not be heard or remedied and if it had been heard or remedied, the remedy would be cancelled or nullified when the parties concerned made their application. That looks to me to be a very serious and quite unacceptable degree of retrospection. These results, I am sure the noble Lord will appreciate (although I do not think he intended them), would be completely at variance with those that we seek to achieve by the closed shop provisions. Therefore, I could not recommend the House to accept that Amendment and I am afraid that very much the same applies to the other Amendment which he moved.
It would have very much the same kind of effect. In paraphrase it says: An application for an interim order to be made to the Industrial Court by either party to a closed shop agreement in force immediately prior to the coming into effect of Part II of the Bill. Actually I think it says, "any one or more of the parties" may make application. To continue the paraphrase: Then the Court to refer the application to the C.I.R. and they to consider whether a prima facie case is established; that the criteria of paragraph 5 are fulfilled and then to 290 report; then the Court to make an interim order if the C.I.R. reports that a prima facie case has been established; and then the interim order to provide that the closed shop agreement should continue in full force and effect; and the interim order to expire after one year unless an application be made by one of the parties to the agreement when the Court may extend it indefinitely.
There is not a great deal between these two Amendments. I am afraid that the objections apply to both and not least to the concept of the apparent intention to continue the pre-entry closed shop; and so I am afraid that I cannot recommend the House to accept either of these Amendments.
§ LORD STOW HILL
My Lords, I am grateful to the noble Lord for his sympathetic and careful answer. I am also grateful for the information he gave in a general form as to the Government's intentions as to the bringing into operation of the successive Parts of the Bill. While I quite understand that the plans are still under consideration and the noble Lord cannot commit himself yet precisely to those plans, I think I understood him to say that, in particular, Clause 5 would not be brought into operation until the Industrial Court and the Commission, to use a loose phrase, were in being. So before Clause 5 brings the closed shop agreement to an end, there would be brought into being a court and a commission to which resort could be held. I am grateful to the noble Lord for indicating by nodding his head that I have correctly understood the intentions of the Government so far as they are precisely formulated.
§ LORD DRUMALBYN
My Lords, I take a slight exception to the word "precisely". They are not yet precisely formulated; they are broadly formulated.
§ LORD STOW HILL
My Lords, I am sorry if I misunderstood the noble Lord. There is a general plan and the noble Lord goes as far as he is justified in going in the light of the state of that plan.
§ LORD DIAMOND
My Lords, I hope my noble friend will forgive me for interrupting. Does he not think that he owes the Government a deeper apology for having accused them of precision in anything in this Bill.
§ LORD STOW HILL
My Lords, I never use the word "accuse" in relation to the noble Lord, Lord Drumalbyn. I use kinder terms to him. I think he is universally helpful and does what he can.
My Lords, I do not wish to take the time of the House further over Amendment 89B which seems to me to suffer from a characteristic which would make it unlikely that the Government would be able to accept it; namely, that it can be made at the instigation of one or more of the parties; that it does not have to be a joint application. But my hopes are raised as to the Schedule 1 and Amendment 89A. I think that I correctly recollect what the noble Lord said when I list three observations in particular that he made as to which I should like to make suggestions. I think they can be easily remedied. The first was that I think I understood him to say that he thought the expression in the last two lines, "final order on such joint application" would not in its terms apply to an order of the Court deciding not to proceed. If that was what the noble Lord intended, then that can be remedied easily. I will try to find the right language to make it apparent that the closed shop agreement must come to an end if the Court declines to grant the application. That is fairly easily disposed of.
The second criticism he made was that the interim order is unlimited in time in terms of the Amendment; that it might continue for a considerable period of time. That again I think I could easily remedy by inserting in the text of the Amendment some provision to the effect that the interim order will expire in, say, a year or something like that. The third criticism he made was that the effect of the Amendment might be to prolong the life of a closed shop for a very long period of time because there is no period of time specified in the Amendment within which after the coming into operation of Part II of the Bill the application must be made. That again is a feature of the Amendment which can easily be remedied.
If the noble Lord felt able to indicate to me that if I inserted language into the Amendment which required the application to be made by both parties, say, within a period of six months after the coming into effect of Clause 5; if I 292 further provided that the interim order if made would expire at the end of one year, or some such period; and if I further chose more suitable language to describe the order of the Court upon the hearing of the application so as to make it certain that the final order to which I referred would include an order refusing the application—if I remedied those three qualities in the Amendment to which the noble Lord feels he must take exception. I do not know whether he would be able to look with less disfavour on it when we get to Third Reading. He has been most helpful and, if I may say so, very encouraging. If he thinks that these changes would make the Amendment more acceptable from the point of view of the Government, then from this side of the House I think we should be able to say that the effect of the Amendment so changed would preserve for a limited period of time a large number of existing closed shop agreements and for a time sufficiently long (though not too long) to enable the parties to make up their minds what they wanted to happen and to make a joint application for an approved closed shop agreement if they wished the existing closed shop agreement to continue and to take the form of an approved closed shop agreement.
My Lords, there is one final feature. The noble Lord will have observed that when the application is decided it can be in terms that any particular provision of the closed shop agreement can be changed in any sense in which the Court thinks it could be changed. That appears in the fourth line from the end. May I conclude by thanking the noble Lord sincerely for what he said. I do not know whether he will be able to communicate with me and let me know whether changes along the lines I have suggested may conduce to a useful result. If he could indicate by a nod that he would write to me on these lines, I would be most grateful to him. In any event, I ask leave for the Amendment to be withdrawn.
§ Amendment, by leave, withdrawn.
§ 8.30 p.m.
§ LORD DRUMALBYN moved Amendment No. 89:
Page 141, line 46, at end insert—
(".In so far as the rules make provision for the purposes of section (Review of ballot
taken under Part It or Part III) of this Act, they shall include provision—
§ The noble Lord said: This Amendment has to do with the review of ballots taken under Part II and Part III. It is linked with the new clause we shall come to after Clause 156. Before we get to that, there is an Amendment in the name of the noble and learned Lord, Lord Gardiner. I have been in communication with him and indicated that what we are now doing in Schedule 3 is bound to be influenced by our decision on his Amendment, in the sense that if this Amendment is accepted, we shall have to alter Schedule 3.
§ LORD GARDINER
My Lords, I am quite prepared to take whatever course is most convenient to the noble Lord. I suppose that strictly, if we are dealing with Schedule 3, we cannot come back to it, and if we were to change our minds on this point, what would the position be then?
§ LORD DRUMALBYN
My Lords, that is a very reasonable question but I think that the answer is obvious. There is another stage of the Bill and if the noble Lord's Amendment were successful, obviously we should have to alter the Schedule on Third Reading in order to come into line with the Amendment. I think that I ought to make it clear that I do not propose to recommend the acceptance of the noble and learned Lord's Amendment. The Amendment I am moving is to enable the Industrial Court to make recommendations as to the review of ballots either under Part II or Part III. On a number of occasions on the Committee stage the noble and learned Lord, Lord Gardiner pointed out that provisions in the Bill which required ballots to be conducted by the C.I.R. or under the supervision of the C.I.R. do not afford any opportunity for appeal 294 against the reported result of the ballot, or give the Industrial Court any option other than to accept the result as reported, even though it may be evident that a mistake has been made in the conduct or reporting of the ballot. The noble and learned Lord urged that there should be some statutory procedure for rectifying mistakes made by the C.I.R. or by any other body conducting a ballot under the supervision of the C.I.R.
My noble and learned friend the Lord Chancellor accepted the noble and learned Lord's view that the prerogative writ procedures would not enable a simple error of fact—for example, in the counting of ballot papers—to be corrected by way of an order in the Divisional Court. He also accepted that it would be desirable to enable mistakes made in the conduct of statutory ballots to be challenged in the Industrial Court. I would direct your Lordships' attention to the fact that the proposed Government Amendments would apply only to ballots held under the provisions of Parts II and III—these are the agency shop and recognition provisions in general. It is not intended that the new provisions should apply in respect of strike ballots under Clause 142, and therefore there would be no provision for any party to complain to the Industrial Court of a mistake made in the conduct of a strike ballot, nor, as a result, could the Court order a fresh ballot.
The new clause will enable the Industrial Court to review the reports of the C.I.R. as to the result of a ballot and if necessary to take action in two ways. If the Court finds that a simple mistake has been made, which does not invalidate the ballot and should be rectified, it may make an order amending the report. A new ballot would not then be taken. The C.I.R.'s report would be amended in accordance with the order and have effect as amended. The other course of action, ordering a fresh ballot, would be appropriate where the Court finds that rectification of the report would not be just and equitable—where, indeed, the ballot has been so misconducted that the only just course would be to declare its result to be of no effect. In these circumstances the Court may make an order quashing the ballot, whereupon action would proceed as if the ballot had never been held. The Amendment to Schedule 3 would 295 enable rules of court to be made to cover such details as the circumstances in which and the parties by whom an application for review of the C.I.R.'s report may be made, the circumstances in which the Industrial Court may be empowered to institute a review without an application being made and the persons who may be made parties to the proceedings.
The provision in paragraph (c) is necessary because when the Industrial Court acts on its own initiative, interested parties should be entitled to be heard and to submit either that there was no error or misconduct or that, even if there was, it did not necessitate quashing the ballot and holding another. There may be circumstances, too, where the Industrial Court proposes to amend the C.I.R.'s report and an interested party may wish to submit that the Amendment proposed by the Court is the incorrect one. Paragraph (c) of the Amendment would enable rules to be made to provide for all these circumstances. I feel that these Amendments provide an adequate procedure for the rectification of mistakes. I should like to express our gratitude to the noble and learned Lord, Lord Gardiner, for having drawn our attention to this matter, and I commend the new clause and the Amendment to the House. I beg to move.
§ LORD GARDINER
My Lords, I am grateful to the Government for the consideration that they have been kind enough to give to my suggestion. There was obviously a lacuna and it was apparent that a rule would be necessary. I have no comment to make on this Amendment. The other points which may arise we can discuss later.
§ LORD SLATER
My Lords, I should like to know who is going to be responsible for taking these ballots and who is going to make the appointments of people to take the ballots. Three people are responsible for the jurisdiction of the Industrial Court, but I want to know who is to be responsible for conducting the ballot and for counting the ballot papers to obtain the result of the ballot. In my own trade union, when a ballot is taken it is counted not by people in the union but by some outside authority. Will there be an outside authority responsible for counting the ballot papers in the case of this Bill? 296 Where is the new clause in connection with this?
§ LORD DRUMALBYN
My Lords, may I refer the noble Lord to Amendment No. 94, the new clause after Clause 156. So far as the noble Lord's other questions are concerned, if he will look at Clauses 12 to 16 he will see that they deal with the ballot for an agency shop. In Part II, dealing with the proposals for recognition, he will see also provisions for the ballot there, and I think he will get all the information he requires. In principle of course the C.I.R. is to be responsible for the ballot.
§ LORD DRUMALBYN
I am trying to answer the noble Lord. I have just said that in principle the C.I.R. is responsible for holding the ballots, and in the circumstances laid down in the Bill it can pass on that responsibility to the trade union in question if it thinks fit. But it is for the C.I.R. to make arrangements for a ballot or for somebody to hold a ballot under its arrangements, and the C.I.R. then reports to the Industrial Court the results of the ballot.
§ LORD TAYLOR OF MANSFIELD
My Lords, this is a little vague, so far as it concerns the question put to the noble Lord by my noble friend. The noble Lord, Lord Drumalbyn, says that the C.I.R. will be responsible for holding the ballot. So far, so good. But who will count the votes when the ballot has been held by the C.I.R.? I am not arguing merits and demerits, but I am asking for the information that my noble friend desired. Will it be an independent body that will count the votes? As my noble friend said, in the union with which we have had experience, on all important matters, particularly ballots for strike, the counting of the votes is done by an outside independent body. Would the noble Lord give some guidance on that point?
§ LORD DRUMALBYN
My Lords, the circumstances vary, in so far as the agency shop and the recognition ballot is concerned. This is expressed to be taken by the Commission in the case of recognition, or is to be taken under the supervision of the Commission by some other 297 body. In either case the Commission determine what arrangements will best secure that the ballot will be properly conducted and that the voting in the ballot will be kept secret. This responsibility is left in the Bill to the Commission, and I think the noble Lord will have sufficient confidence in the Commission to leave it to them.
§ On Question, Amendment agreed to.
§ 8.43 p.m.
§ EARL FERRERS moved Amendment No. 89E:
Page 142, line 8, at end insert—
("Time-limit for complaints under ss. 101 and 102
.—(1) Subject to the following provisions of this paragraph, the Industrial Court shall not entertain any complaint under section 101 or section 102 of this Act unless it is presented before the end of the period of six months beginning with the earliest date on which the action to which the complaint relates came to the knowledge of the complainant, or would have come to his knowledge if he had exercised due diligence.
The rules may provide that, in relation to complaints fulfilling such conditions as the rules may specify, the preceding sub-paragraph shall have effect as if, for the reference to a period of six months, there were substituted a reference to such shorter period as is specified in the rules.
Notwithstanding anything in the preceding provisions of this paragraph, the Industrial Court may extend the time for presenting a complaint under section 101 or section 102 of this Act to such extent as the Court may consider appropriate to make allowance for any period during which the parties have availed themselves of the services of conciliation officers or of other opportunities for conciliation with respect to the matters to which the complaint relates.")
§ The noble Earl said: My Lords, on behalf of my noble friend Lord Drumalbyn, I beg to move Amendment No. 89E. During the Committee stage an Amendment was moved by the noble and learned Lord, Lord Donovan, which sought to impose a time limit of six months for bringing a complaint of unfair industrial practice to the Industrial Court or a tribunal. There was wide agreement then that a time limit for complaint was necessary. But, as my noble friend Lady Tweedsmuir explained at the time, complaints which may be presented to the Court will vary considerably in their nature and importance, and we believe it desirable to be able to set different time limits for different types of complaints, 298 and the best way of achieving flexibility is through the Court's rules.
§ Some noble Lords did express misgivings about consigning the imposition of time limits to regulations which would be subject to the Negative Resolution procedure. The noble Lord, Lord Beaumont of Whitley, proposed a solution which we think, on reflection, meets this criticism, and we have been happy to adopt it in drafting this Amendment.
§ The effect of the Amendment will be to allow the rules of the Court to impose varying time limits for complaints of unfair industrial practice or breach of duty, within an overall time limit of six months. The Court will also be given discretion to extend the time for complaint where the parties have attempted to resolve their differences by conciliation. There is obviously room for argument on what the overall time limit for complaint should be. Imposing too short a time limit involves the risk of requiring the injured party to start proceedings prematurely where that may not be in the best interests of resolving the dispute peacefully. On the other hand, with the passage of time, memories of events fade and witnesses become increasingly difficult to assemble.
§ These facts, taken together with the point made by the noble Lord, Lord Janner, also in the Committee stage, that individuals should not have the risk of proceedings hanging over their heads interminably, made us feel that these are powerful arguments against allowing a very extended period for complaint. On balance, therefore, we believe that the period of six months is the right one. I think the Amendment contains the elements to direct Parliamentary control, to which noble Lords rightly attached importance in the Committee stage, and yet it has the necessary degree of flexibility which we consider to be desirable. I beg to move.
§ LORD STOW HILL
My Lords, I do not criticise the period of time chosen, but I wonder whether the noble Earl can give some indication of what the precedents are with regard to prescribing time limits for bringing proceedings by subordinate legislation. I know that at one time in our Parliamentary history, certainly during the 1945 Parliament, there would have been a storm of criticism if subordinate legislation had been used for 299 that purpose; that is to say, for prescribing the substantive structure of claims—namely, a period within which they had to be brought. I believe that in the more recent legislation that very salutary principle, and I say this with perhaps a rather old-fashioned echo, has been substantially departed from. I should be grateful if the noble Earl, this being a matter of some constitutional importance, can give us any indication of what the more modern precedents are. I do not think there are older precedents, although there may be, and if he has them on his brief I should like to hear them; if he has not, I shall quite understand.
My Lords, perhaps I can raise a short point. I not only do not object to, but welcome the way that in this Bill everything is done to remind lawyers that they must not take into account anything that they already know, and that an unfair industrial practice is a new angle; it is quite right that you should not call an injunction an injunction order, and it is quite right that you should not call damages damages for compensation. An unfair industrial practice is not, as I understand it, what lawyers call a cause of action; it is something quite new. But, of course, for limitation purposes one has to be very exact, as we are in relation to the date of the issue of the writ or service of the writ and so on, because actions are started either by writ or summons. It is right that this should be something quite different. It is called "entertaining a complaint".
Then there is the expression, "when the complaint is presented". Does that mean presented in court, or does it mean sending in some document? Perhaps the noble Earl can give us some idea of what "entertaining" means. Does this mean that the Industrial Court should not hear the case in court, or does it mean that they send you back the document and say "Go away"? There is no definition. These of course are the same expressions as are to be found in Clauses 101 and 102. But there is no definition anywhere of what exactly a complaint is, of what presenting a complaint consists, or what is meant by "entertaining". If when the noble Earl comes to reply he can give us some indication about this we should be grateful.
My Lords, the noble Lord, Lord Stow Hill, asked what precedents there were for putting in this form of legislation. The figure of six months is written into the Bill. The subordinate part of the legislation to which I think he was referring was where the Court, by its rules, is empowered to shorten this period of time. The very quick answer that I am able to give to the noble and learned Lord—and I would have preferred a little more time so as to make quite certain that my answer is correct—is that I do not know of a particular precedent where this form of subordinate legislation, as the noble and learned Lord calls it, has been used before. On the other hand, he will of course realise that the purpose of this is to give a maximum period in the Bill and only where the Court believes that it is in the interests of all concerned that the period should be less will a shorter period be provided. I would reassure the noble and learned Lord that in fact any such rules as are made by the Industrial Relations Court will have to come before Parliament for approval, and therefore his fears over that may not be quite as substantial as they may have at first appeared because in the end Parliament will have to approve the rules.
With regard to the points made by the noble and learned Lord, Lord Gardiner, I am sorry but I am bound to say that I was slightly concerned to follow exactly the points he was making. If he will be kind enough to repeat them as briefly as possible, I will try to follow them more clearly.
§ LORD GARDINER
My Lords, there is a time limit, and therefore we must know necessarily when the time limit begins to run and when it ends. As lawyers know, when one is dealing with "limitations" one has to be very precise as to what one is talking about. Where in our law we have limitations they run from the date of the issue of the writ or of the summons, for example. You start an action either by issuing a writ or summons and then you have the pleading saying what your case is. Then you get a date from the court and have an oral hearing. As I said, I was not objecting that the language was different; but here there is nothing like a writ or summons and you are told to "present a complaint". Does that mean presentation by 301 counsel before the Court or does it envisage a little document of some kind and, if so, is it enough to write on a piece of paper and say, "I am complaining about the following"?
No doubt rules will be made to deal with the detail, but I am wondering whether, as this is an entirely new form of legal procedure, the Government would tell us what they have in mind in talking about "presenting a complaint" and what it means. Ultimately, if it is a document somebody will have to decide whether you "present" a complaint when you post it or when it is received. I am not asking for details of that kind. I should like to know whether "entertaining a complaint" means that the Court would accept or decline to hear that party, or if it means that if they get a written complaint and it is out of time the Court itself will write back to you and say, "Go away".
§ LORD DRUMALBYN
My Lords, I do not know whether I can be of any more help to the noble and learned Lord but, as he himself has said, we are here dealing with an entirely new form of court and I should have thought that the natural thing would be to leave it to the Lord Chancellor to make the rules and that the rules would cover this sort of thing simply because it is a new form of court. I speak without special tuition on this subject, but that is the way in which I read it and I think he himself would read it in that way also.
§ LORD DIAMOND
My Lords, I will not detain your Lordships very long, but I should like to say, first of all, for the benefit of the Liberal Benches—
§ LORD DIAMOND
—and there is no noble Lord better at timing his entry than the noble Lord who has just come in—how grateful we all are that the Government should have accepted at all events the idea that has been put forward and enshrined it in the provisions which they are at present making. I think it right to say this, because the Government have been very helpful in our proceedings to-day in accepting many Amendments stemming from proposals to your Lordships' House from these Benches and from the Liberal Benches. Those of your Lordships who at any time might have 302 felt that these proceedings were not of great fruitfulness will have been delighted to know that your fears were entirely baseless and that the purpose which your Lordships' House has carried out with diligence and discipline has been to a certain extent served. I think therefore it is up to me to say how grateful I am to the Government for the number of Amendments and ideas which they have accepted, including the one which is now before us.
I wonder whether, in not such a serious mood, I might try to help my noble and learned friend Lord Gardiner who asked, in relation to subsection (3), what "presenting a complaint" was. My noble and learned friend is very experienced in presenting a play, he being a well-known "angel". This is not quite that same field of art: a complaint is something rather similar to a chamber concert where the artistes present have no musical instruments but only their easels with them, and together they produce something for presentation which is called a "complaint". I hope that I have made the subject clear to my noble and learned friend; and I repeat my question to the Government.
§ LORD BEAUMONT OF WHITLEY
My Lords, I should like to apologise to your Lordships' House for not being here at the beginning of this debate. I hope that I shall be forgiven for rising to my feet, seeing that the Liberal Benches were mentioned as I entered. About this particular Amendment, I too would like to add my thoughts. I am not entirely certain that in fact the Amendment produced by the Government was based on what I meant to convey at the Committee stage.
§ LORD BEAUMONT OF WHITLEY
I am aware, my Lords, that the Government think it is based on what they thought I meant to convey at that time, but I was not then entirely certain that they had fully understood the point I was trying to put. Nevertheless, I think that the Amendment they have put forward is a good one and I should like to join in the remarks made by the noble Lord, Lord Diamond, about the way in which the Government have taken the Amendments that have been put forward 303 at various stages, which were not designed in any way to wreck the Bill or change it enormously; and when they have been clear about that, they have been most helpful. I was able to quote a large number of instances yesterday during a Press conference when I was explaining exactly how far we hope to get with the Immigration Bill in your Lordships' House; and this was one of the examples which I quoted as to how far one can get. I believe this to be a good example of the way in which your Lordships' House has been able to amend the Bill, and we are very grateful for the extreme courtesy and consideration of the noble Lord in meeting the points. I should like to repeat my apologies to your Lordships' House for any seeming discourtesy in having arrived late.
§ On Question, Amendment agreed to.
§ 9.0 p.m.
§ EARL FERRERS moved Amendment No. 89F:
§ Page 144, line 1, leave out from ("may") to end of line 5 and insert ("remove a member of the Commission on the ground of incapacity or misbehaviour").
§ The noble Earl said: My Lords, on behalf of my noble friend Lord Drumalbyn I beg to move this Amendment which in fact fulfils an undertaking to the noble Lord, Lord Stow Hill, at the Committee stage, to bring the wording of this paragraph into line with the similar provision in paragraph 6 relating to the removal of appointed members of the Industrial Court. We have already discussed this matter. I beg to move.
§ On Question, Amendment agreed to.
§ LORD STOW HILL moved Amendment No. 89D:
§ Page 144, line 30, leave out from ("meetings") to the end of line 32.
§ The noble Lord said: My Lords, may I first use this opportunity for doing what I should have liked to do on the last Amendment, which is to express my very sincere thanks to the Government Front Bench for having moved the last Amendment and to the noble Lord, Lord Drumalbyn, in particular for implementing his promise.
§ Amendment 89D deals with a slightly different subject, although it is connected 304 with the last Amendment. We discussed at the Committee stage the importance of making certain that the Commission on Industrial Relations was seen to be a body independent, able to take an objective view as between the opposing sides of the table and not unduly subject to the control of the Executive. We had a discussion as to its constitutional position, and as a result of that discussion the noble Lord, Lord Drumalbyn, undertook to make the change which he made in the last Amendment which your Lordships approved.
The Amendment which I am at present seeking to move is designed to promote the objective of making sure that the Commission is universally recognised as being independent. It is designed to conduce to that objective in the following way: in Clause 34 your Lordships will see provisions as to the conduct by the Commission of its affairs, and the words which I seek to leave out in Clause 34 are
but in doing so shall act in accordance with any general directions which may from time to time be given to them by the Secretary of State.
The submission which I make to the House is that that is an unnecessary subjection of the Commission to the Executive. I do not quite see what useful purpose is to be served by giving the Secretary of State the power to give general directions to the Commission as to how it runs its affairs. That is what it comes to. The effect of the presence of that power must be, one would submit, that perhaps not greatly but to some extent it may tend to undermine the authority and standing as an independent body of the Commission.
§ This is a short point. As I say, it follows very much on the previous Amendment and I beg to move it for the reasons I have given. One reason is that we should support in every way the authority and independence of the Commission, and when it is made subject to the Secretary of State's general power of giving directions that, so far as it goes at any rate, will tend to undermine the position of the Commission. I beg to move.
THE EARL OF BALFOUR
My Lords, here is it not most important for the 305 Secretary of State to have power to decide what shall form a quorum? This I find is very difficult in lots of things one may come across. Even with all sorts of trust deeds and things like that there is sometimes great complication in deciding what shall form a quorum or how many people shall sit. We do not yet know how much the Commission will be involved. This gives the Secretary of State possible powers to appoint an extra few people if needed. I think this is more surely the meaning, than for the Secretary of State to have powers to ask the Commission to alter any deliberations they have or prevent them from carrying on their own procedure. This clause appears to me to deal more with the matter of a quorum.
§ LORD DRUMALBYN
I am grateful to the noble Lord, Lord Stow Hill, for introducing the Amendment in the way he did. I am grateful to my noble friend. I did suggest at an earlier stage that because the quorum of the Commission might vary this might be one of the occasions when a general direction should be given. I merely instanced that as a possible case, quite off the cuff; but I should like to emphasise very strongly that we do share the noble Lord's wish that the Commission should be, and should he seen to be, independent and completely free of Government control. But we are here talking of the proceedings of the Commission only, and the provision for direction by the Secretary of State is qualified very much by the word "general"—a word we are very familiar with now in the nationalised industries in "general directions"—and does not relate to day-to-day conduct of their business in any way at all. It certainly would not be aimed at any particular case or person. The Secretary of State could not, even if he wished, direct the Commission as to the conclusions they should draw and the recommendations they should make in a particular case. This could not possibly he done. There is no obligation on the Secretary of State to give directions, and the Government regard this provision merely as a necessary precaution against the possibility of a procedural deadlock which the Commission is unable to resolve by itself. I hope that the noble Lords opposite can accept that it is not in any way incompatible with the independence of the Commission, which the Government are as anxious to ensure as they are. 306 This kind of reserve power is one which all Governments have retained over bodies that they set up, and I do not think that this one should be any exception.
§ 9.8 p.m.
§ LORD STOW HILL
My Lords, I am grateful to the noble Lord for what he has said. If the power is so hedged around as he has described it, is it really worth while preserving at all? I listened closely to ascertain what he had in mind and he said that really the general power was designed to deal with what I think he described as a "procedural deadlock". I just do not know what that means. Does it mean that if they start hitting each other across the table the Secretary of State will say, "Do not hit each other"? It is such an unlikely thing to happen, and I submit that this power produces a bad impression.
The power clearly could not be used for the purposes of regulating their day-to-day proceedings, and the situation when it could be brought into effect is likely to arise on such rare occasions among sensible, intelligent people; and one assumes that such people will be appointed. Is it really worth while retaining? I should be glad if the noble Lord would give further thought to this at a later stage. It seems a pity to have this power included in the Bill when it will create a bad impression and will serve no useful purpose.
§ LORD DIAMOND
My Lords, the noble Lord—or at least those of my noble friends who come from the North—will recollect that in the earlier days of this century there was a most important official known as a "knocker-up". But the important question was who knocked up the knocker-up, and one is familiar with the song about the knocker-up's knocker-up. Your Lordships may think this a facetious remark. Not at all. It is an attempt to show how ridiculous is the refusal of the noble Lord to accept this Amendment. Here is the Commission, which is to advise some of the largest companies and the largest unions in this country as to how to regulate their proceedings. That is what the Commission is about, and it is intended that the Commission shall be peopled with individuals of great distinction who will be able, by their authority, their experience and their ability to demonstrate to those who come to seek 307 advice from them, that if one really wants to know how a procedure should be worked out and carried out all one has to do is to consult the Commission. Yet here is a proposal which rests on the assumption that the Commission is not capable of working out its own procedure.
§ LORD DIAMOND
My Lords, as my noble friend has said, it is not trusted. It is such a slur on their ability and such a denial of all the hopes that the Government are pinning on the Commission, that I should have thought the Government would be the last people to refuse this Amendment. I really do beg the Government to think again. It is quite absurd to suggest that of all bodies the Commission, the final resting place of all decisions as to what is proper and right in procedure-making, should have their own procedures fixed by the Secretary of State and, when they are unable to agree on such simple matters as the quorum necessary for their meetings, should have to be assisted by the Secretary of State.
Of course we accept that all Secretaries of State have endless wisdom, but sometimes they have not time to give careful thought to whether the quorum necessary for a meeting of a particular body should be two or three, or four or five. Sometimes they have other things to do. I should have thought that the Government would be impressed by the arguments put forward by my noble friend Lord Stow Hill, who has made a most magnificent contribution to our debates to-day and has shown his ability to help the Government with their Bill. I should have thought they would be impressed by his arguments and would wish to reconsider now what they have just said. I am afraid we would not be prepared to allow the Government to continue with
§ the kind of nonsense that is in the Bill at the moment unless they are prepared to say something helpful.
§ LORD DRUMALBYN
My Lords, I do not know whether the noble Lord will find it helpful, but perhaps he will allow me just to say this: when the Party opposite set up the Prices and Incomes Board under the Prices and Incomes Act they incorporated an almost exactly similar provision. In fact, so far as can be traced it has not been used, but nevertheless it was there and one can never exactly foresee the future. There are occasions when independent bodies like to be told what to do.
This is a very narrow point and I am afraid I could not concede. There is a precedent and I think there is a reasonable case for it. I certainly do not think it would be worth pressing to a Division in view of the precedent.
§ LORD BEAUMONT OF WHITLEY
My Lords, since it is the Minister who has just spoken, I imagine I am in order in speaking for the first time on this Amendment. I entirely agree with the noble Lord, Lord Diamond and the noble Lord, Lord Stow Hill. This is a total nonsense; it will never be used. But, honestly, I would not have thought this Amendment was worth dividing on. It may be that the noble Lord, Lord Diamond, will want to divide. The point is that this will never be used; it is one of those nonsenses which Governments of every kind, as the noble Lord, Lord Drumalbyn, almost went so far as to say, incorporate in every Bill. It is not a danger to the liberty of the subject or the liberty of the Commission. I would not have thought it was worth our while trooping through the Lobbies.
§ 9.15 p.m.
§ On Question, Whether the said Amendment (No. 89D) shall be agreed to?
§ Their Lordships divided: Contents, 25; Not-Contents, 72.309
|Addison, V.||Delacourt-Smith, L.||Hughes, L.|
|Bernstein, L.||Diamond, L.||Longford, E.|
|Beswick, L.||Gardiner, L.||Popplewell, L.|
|Brockway, L.||Garnsworthy, L. [Teller.]||Ritchie-Calder, L.|
|Buckinghamshire, E.||Heycock, L.||Rusholme, L.|
|Champion, L.||Hoy, L.||Shackleton, L.|
|Slater, L.||Strabolgi, L. [Teller.]||White, Bs.|
|Stonham, L.||Taylor of Mansfield, L.||Wootton of Abinger, Bs.|
|Stow Hill, L.|
|Ailwyn, L.||Exeter, M.||Molson, L.|
|Albemarle, E.||Falkland, V.||Mowbray and Stourton, L.|
|Auckland, L.||Ferrers, E.||Napier and Ettrick, L.|
|Balerno, L.||Ferrier, L.||Nugent of Guildford, L.|
|Balfour, E.||Fortescue, E.||Oakshott, L.|
|Barnby, L.||Glendevon, L.||O'Neill of the Maine, L.|
|Belhaven and Stenton, L.||Goschen, V. [Teller.]||Rochdale, V.|
|Belstead, L.||Gray, L.||Ruthven of Freeland, Ly|
|Berkeley, Bs.||Greenway, L.||St. Aldwyn, E.|
|Boston, L.||Grenfell, L.||St. Helens, L.|
|Bridgeman, V.||Gridley, L.||St. Oswald, L.|
|Brooke of Cumnor, L.||Grimston of Westbury, L.||Selkirk, E.|
|Brooke of Ystradfellte, Bs.||Hatherton, L.||Selsdon, L.|
|Brougham and Vaux, L.||Inglewood, L.||Sempill, Ly.|
|Burton, L.||Jellicoe, E. (L. Privy Seal.)||Sinclair of Cleeve, L.|
|Colville of Culross, V.||Kemsley, V.||Somers, L.|
|Craigavon, V.||Kilmany, L.||Stonehaven, V.|
|Crathorne, L.||Kilmarnock, L.||Strange, L.|
|Cromartie, E.||Lauderdale, E.||Strathclyde, L.|
|Davidson, V.||Macleod of Borve, Bs.||Terrington, L.|
|Denham, L. [Teller.]||Macpherson of Drumochter, L.||Vivian, L.|
|Drumalbyn, L.||Margadale, L.||Wakefield of Kendal, L.|
|Dundee, E.||Merrivale, L.||Wigram, L.|
|Elliot of Harwood, Bs.||Mersey, V.||Wrottesley, L.|
On Question, Amendment agreed to.
§ 9.23 p.m.
§ LORD DRUMALBYN moved Amendment No. 90:
Page 145, line 24, at end insert—
("(3) In making arrangements for any such ballot, the Commission may invite any person who is the employer of any workers eligible to vote in the ballot to provide premises and other facilities for enabling the ballot to be taken in accordance with the arrangements.")
§ The noble Lord said: My Lords, this is an Amendment standing in the names of my noble friend Lord Thorneycroft and myself. It is an Amendment of the utmost clarity. I do not think I need to explain it in any way at all. It gives effect to what has been already agreed. We should have had to put it in four times as it was originally incorporated. We do it here once, and I think it serves its purposes admirably. I beg to move.
§ LORD DIAMOND
My Lords, there is no need to delay your Lordships on this Amendment, which has been moved so persuasively by the noble Lord, Lord Drumalbyn, with the powerful support of his noble friend Lord Thorneycroft. It is a very acceptable Amendment to us.
§ LORD SLATER
My Lords, I should just like to say to my noble friend and 310 noble Lords that I am not surprised at this Amendment, or at the Government's giving way and putting down this type of Amendment. After all, it is the industrialists, the big companies in this country, who are behind this Bill along with the Government, while the trade unions take a different attitude to it. They do not want it. It does not belong to them, it belongs to the industrialists, and we have the Government coming along and supporting the industrialists' request. They are the employers of labour, and they are the people who are going to provide the facilities for carrying out the ballots that have to take place on their premises. It could be that anything up to 2,000 people will be involved in a ballot. Therefore, I am not surprised that this Amendment, which has been accepted by my noble friend Lord Diamond, has been put forward for our approval.
§ LORD DRUMALBYN
My Lords, that sounds to me like a rather critical speech. I should have thought it was a very reasonable proposition that the Commission, if it chooses, may invite anyone who is an employer of workers to provide premises and other facilities for enabling a ballot to be taken on his premises to which the workers are accustomed to go. There is no obligation on the employer to accede if he does not want to. This 311 provision is put down only as a convenient and, I should have thought, sensible way of carrying out a ballot. If the Commission does not think it either convenient or sensible, then it will not invite the employer to do it. Here, again, this is a matter which we can leave to the good sense of the Commission.
§ LORD SLATER
My Lords, if the employer is not prepared to allow the use of his premises for a ballot, will the Commission get to know the names of all the employees and correspond with every one of them? It is no use the Liberal Peers turning round on Labour Peers. We have had too much experience in the labour field—
§ LORD TAYLOR OF MANSFIELD
My Lords, what happens if the employer does not accede to the request of the Commission? I remember that a long time ago there were two rival unions in the Nottinghamshire coalfield and we had to have a ballot. The T.U.C. were anxious to ascertain the wishes of the men, and to find out which union they desired they undertook to have a ballot, to provide the money and to provide a reputable firm of solicitors in Nottingham to supervise the ballot and count the votes. But the colliery owners would not allow the ballot to be taken on their premises, so, strange to relate, it had to be taken on the public highway. If any of those taking part had put one foot on the colliery premises they might have been prosecuted. I do not say that what happened some years ago in Nottinghamshire would happen again, but it is quite possible that an employer may not accede to the request of the Commission to take a ballot on his premises. In that event, what would be alternative?
§ 9.30 p.m.
§ LORD DRUMALBYN
My Lords, may I reply to the noble Lord, with the consent of the House? We have confidence that the Commission will be a responsible body and if this expedient fails they will find another. The responsibility is theirs.
§ Schedule 6 [Provisions relating to Industrial Tribunals]:
§ EARL FERRERS moved Amendment No. 90B:
§ Page 162, line 17, leave out ("(e) of section 155(1)" and insert ("(f) of subsection (1) of section 155 ").
§ The noble Earl said: My Lords, this Amendment together with the next Amendment, No. 90C, are, like Amendments Nos. 88H and 88J which we have already discussed, contingent on the acceptance by the House of Amendment No. 93J which comes later. This Amendment seeks to add to the categories of information protected from disclosure by Clause 155, information obtained by an employer for the purpose of legal proceedings. The Amendment which we took earlier enabled the Industrial Court to sit in private when such information is given in evidence. These Amendments make similar provision in respect of industrial tribunals, in order that they too may hear legally privileged information in private. Although the House has not yet fully debated Amendment 96J, I hope that, with this brief explanation, your Lordships will agree to this Amendment.
§ Amendment moved—
§ Page 162, line 20, leave out ("the said paragraph (e)") and insert ("paragraph (e) of that subsection").—(Earl Ferrers.)
§ LORD BELSTEAD moved Amendment No. 90D:
§ Page 162, line 38, leave out from ("Act") to second ("the").
§ The noble Lord said: My Lords, I beg to move this Amendment, and would ask if we might discuss with it Amendments Nos. 90J and 90E. These three Amendments are necessary for technical reasons and it would be helpful if they could be 313 taken together. They do not introduce a new principle, but they are important. Schedule 6 deals with matters which are to be covered by regulations governing proceedings before industrial tribunals, and paragraph 5 deals in particular with complaints under Clause 106. Complaints under that clause may relate either to unfair dismissal or to unfair industrial practices under Clause 5, and in both cases, of course, the employer is concerned.
§ As originally drafted this paragraph 5 was restricted in its application to complaints of unfair dismissal, and therefore when providing for a time limit for the presentation of such complaints it laid down a period of four weeks beginning with the effective date of termination. However, my Lords, complaints under Clause 5 may be about acts of discrimination, which could be over a period of time. The wording of this paragraph must therefore take account of this difference in the types of complaint covered by Clause 106, and this Amendment, No. 90J effects that. These Amendments will remedy the deficiencies of the original draft by providing that the period permitted for presenting complaints will be four weeks from the effective date of termination when the complaint relates to a dismissal, and in other cases four weeks from the date of the action complained of or, where the action is repeated, from the latest date on which it occurred.
§ May I draw the attention of your Lordships to the third Amendment, No. 90E, which is connected with Amendments which were moved by my noble friend Lord Jellicoe to Clause 32? At that time he apologised because this Amendment No. 90E was not tabled, although he spoke to the general principle of the matter. Regulations made under this paragraph 5 of Schedule 6 will be subject to any order revoking the exemption of a voluntary dismissal procedure made by the Industrial Court under Clause 32, which directs that employees dismissed during a period immediately prior to the date of such an order shall have an extended time in which to make a complaint of unfair dismissal through the statutory machinery. I hope you will take the view that this safeguards the rights of appeal of employees who are dismissed during a period in which there has been a break 314 down of the exempted voluntary procedure. I beg to move.
§ Amendment moved—
Page 162, line 41, leave out ("with the effective date of termination") and insert—
("(a) in the case of a complaint relating to dismissal, with the effective date of termination, or
(b) in any other case, with the date of the action specified in the complaint (or, if that action occurred on two or more dates, the latest of those dates)").—(Lord Belstead.)
Page 162, line 42, leave out from ("termination") to end of line 43 and insert ("unless the tribunal is satisfied that in the circumstances it was not practicable for the complaint to be presented before the end of that period.
(2) Any provision made by regulations in pursuance of the preceding sub-paragraph shall have effect subject to any order of the Industrial Court under section 32 of this Act.").—(Lord Belstead.)
§ LORD STOW HILL
My Lords, I do not quite follow how the second paragraph of this Amendment operates. Supposing a procedure agreement is revoked under what will be Section 32 of the Act, and employees have been dismissed shortly before the order revoking it, they are to have an extended time in which to prefer a complaint. I do not see how that is achieved by language which says:(2) Any provision made by regulations in pursuance of the preceding sub-paragraph shall have effect subject to any order of the Industrial Court under section 32 of this Act.What is the form of the order which is envisaged which might automatically have an effect on the regulations? Could the noble Lord give me an example? I cannot envisage how that is supposed to work.
§ LORD BELSTEAD
My Lords, I am afraid that I cannot give an off-the-cuff answer. I thought the noble Lord was going to ask me about the real effect of the word "subject" which, so far as I know, means waiting for an order. The order was debated by the House when Clause 32 was debated. I am sorry that 315 I cannot give the noble Lord a more satisfactory answer.
§ LORD DRUMALBYN
My Lords, may I draw the noble Lord's attention to Clause 32(3)(b) which has something to do with this.
§ LORD BELSTEAD moved Amendment No. 90F:
Page 162, line 43, at end insert—
(".In relation to proceedings on corn-plaints under section 107 of this Act, the regulations shall include provision precluding an industrial tribunal from entertaining such a complaint unless it is presented before the end of the period of four weeks beginning with whichever is the West of the following dates, that is to say—
§ The noble Lord said: My Lords, this Amendment also imposes a time limit for the presentation of complaints to an industrial tribunal, but this is about unfair industrial practices under Clauses 66 and 70, which are the guiding principles, and about breaches of the rules of organisations of workers and employers. It extends a principle that I have submitted to your Lordships and with which your Lordships have agreed. I have moved this Amendment as briefly as possible. I beg to move.
§ 9.38 p.m.
§ LORD BELSTEAD moved Amendment No. 90H:
Page 162, line 45, at end insert—
(".Where in accordance with the regulations an industrial tribunal determines in the same proceedings—
The noble Lord said: My Lords, this is a small, technical Amendment. There will no doubt be occasions when an employee, who is uncertain about the reason for his dismissal, will make a claim to a tribunal for a redundancy payment under the Redundancy Payments Act 1965 and, at the same time, a complaint of unfair dismissal under Clause 106 of this Bill. This is what, so far as we know, is open to any employee to do if he or she wishes. It is envisaged that the tribunal regulations will enable a tribunal to deal with two such claims concurrently in the same proceedings. Section 9(2)(b) of the Redundancy Payments Act provides that where a claim under that Act is referred for determination by a tribunal, for the purposes of that reference
an employee who has been dismissed by his employer shall, unless the contrary be proved, be presumed to have been so dismissed by reason of redundancy.
Your Lordships may agree that in concurrent proceedings of the kind I have described, where an employee is bringing a complaint either under the Redundancy Payments Act or under Clause 106 of this Bill, this presumption of redundancy as the reason for dismissal really should apply only to the claim under the Redundancy Payments Act and should not apply to the complaint under Clause 106 in relation to unfair dismissal. Indeed, it strikes me that it would be extremely unfair to the employee if this were so. It is for this sole purpose that I move this Amendment. I beg to move.
§ Clause 128 [No compulsion to work or to take part in industrial action]:
§ 9.41 p.m.
§ LORD DRUMALBYN moved Amendment No. 90A:
Page 95, line 44, at end insert—
("( ) Any power conferred on a court by the Employers and Workmen Act 1875—
§ The noble Lord said: My Lords, I beg to move Amendment No. 90A. The purpose of this Amendment, together 317 with the related Amendment to Schedule 9, repealing certain sections of the 1875 Employers and Workmen Act, is to remove any inconsistency in that Act with Clause 128 of the Bill which prohibits any court from making an order for specific performance of a contract so as to compel an employee to do any work. Clause 128 prevents any court from compelling an employee to do any work by an order for specific performance of a contract of employment. However, although, as I mentioned in Committee stage, that part of Section 6 of the 1875 Act which gives a court a mandatory power to order a specific performance of a contract was repealed by Section 1 I of the Family Law Reform Act in 1964, the power of a magistrates' or a county court to order performance of a contract with the consent of the parties and in the giving of security is still retained in Sections 3, 7 and 8 of that Act.
§ While it is true, as the noble and learned Lords, Lord Gardiner and Lord Donovan, have pointed out, that these provisions and others in the Act are rarely, if ever, invoked, we feel—and I think your Lordships will agree—that continued retention of these provisions in the Act would appear to conflict with the mandatory prohibition in Clause 128(1) against performance of a contract. The Amendment therefore sets out the principle that the powers of a magistrates' court or a county court under the 1875 Act to accept security and order performance of a contract are to cease to be exercisable. This supplements the enactment in Clause 128(1) of the equity principle that no court shall order specific performance of a contract. We think it desirable that this principle should be set out in the body of the Bill in addition to repealing these sections of the 1875 Act in Schedule 9.
§ Your Lordships will note that the Amendment refers to "persons" rather than to "employees". This is because the 1875 Act deals with disputes between employers and workmen, and the definition of "workman" in that Act is confined substantially to manual workers. Other types of employees would not therefore be affected by this provision. This Amendment is related purely to the proposals we intend to make to repeal the provisions I have mentioned in the 1875 Act. When we discuss Amendment 318 No. 98B we can deal more fully with the reasons for retaining for the time being other provisions in that Act. My Lords, I beg to move.
§ 9.45 p.m.
§ LORD GARDINER
My Lords, I hope the noble Lord, Lord Drumalbyn, may be prepared to withdraw this Amendment. I suppose that any Government which introduces an enormous Bill of this character must include in it some nonsense, but this is an enormous piece of drafting of double or treble nonsense. The Government are providing for the repeal of all the provisions by which a Court can order such security to be given. What is the point of saying that the powers of the Court shall cease to be exercisable when we are removing in the same Bill the only powers which such a Court has? On that view this Amendment is clearly unnecessary. But indeed the whole Act is a nonsense. It is a survival of employer-employee relations in the last century. In substance, what the Act does, or did, was partly to deal with apprentices. Apprentices could be ordered back to work, and the control over apprentices provided that in a dispute between an employer and employee, if for example half a dozen unofficial strikers went on strike they could be taken to the local police court and ordered to pay up to £10 every day the strike continued, or if you wanted it to be £50 a day you could go to the county court.
I have not traced any case, certainly in the last 65 years, in which the Act has ever been used. The noble and learned Lord, Lord Donovan, with all his experience as Chairman of the Royal Commission, said that he knew of no case, I think in living memory, in which the Act had ever been used. Here is what is supposed to be a very bright and comprehensive piece of legislation on industrial relations, and quite rightly it repeals the Trade Union Act 1871, the Trade Disputes Act 1966, and the Trade Disputes Act 1965. What is the point of keeping this Act on the Statute Book? Your Lordships may remember the noble and learned Lord, Lord Donovan, saying that he knew of only one possible useful purpose in keeping it on the Statute Book: that was, that in legal circles it was regarded as a well known trap question for Bar candidates. This rather melancholy 319 legislative history is set out in the chronological table as follows: Section 2 repealed by the Statute Law Repeal Act (No. 2), 1893; Section 6 repealed in part by the Family Law Reform Act, 1869; Section 8 repealed in part by the Statute Law Repeal Act (No. 2), 1893 and amended by the Justices of the Peace Act, 1949; Section 9 repealed in part by the Statute Law Repeal Act (No. 2) 1893 and amended by the Justices of the Peace Act, 1949 and the Administration of Justice Act, 1956; Section 10 repealed in part by the Statute Law Repeal Act, 1893; Section 11 amended by the Factory and Workshop Act, 1.878; Section 13 repealed in part by the Merchant Seamen Act, 1880; and Section 15 repealed in part by the Statute Law Repeal Act, 1893. There is very little left of the thing now. There is Section 1 left. Section 1 says:This Act may be cited as the Employers and Workmen Act 1875.What are we doing with this nonsense? Why could we not get rid of the whole thing? Certainly it is not necessary. The Amendment says that any power conferred on the Court by the Act shall cease to be exercisable. It goes on in the repeal Schedule to repeal in the Act the only provisions conferring such powers. If we are to do away with it anyhow why do we suddenly say so? I hope the noble Lord will withdraw the Amendment so that we can consider when we deal with the repeal Schedule what the noble and learned Lord, Lord Donovan, and I have suggested.
§ 9.49 p.m.
§ LORD DRUMALBYN
My Lords, whatever we do we certainly would not withdraw this Amendment because to do so would conflict with the whole tenor of the Act. As I said at an earlier stage, the only things we could repeal in this Bill are matters relating to this Bill. I am advised that it is not considered generally proper in legislation to repeal things not related to that legislation. There is a provision which still relates to the Truck Acts for example and the Truck Acts, I am advised, still operate. That provision is still in this Bill and I am advised it would be not right to repeal the whole Act in this Bill. Between now and Thursday, when we expect to come to the noble Lord's Amendment on Schedule 9 and to 320 our own, we shall certainly have a look at this to see to what extent the noble Lord and ourselves are in agreement, but I invite the House to approve this, which most certainly is right in the circumstances.
§ Clause 129 [Collective agreements]:
§ LORD DRUMALBYN moved Amendment No. 90G:
§ Page 96, line 5, at beginning insert (" Subject to the next following subsection ")
§ The noble Lord said: My Lords, this is a paving Amendment for Amendment No. 91E. The effect of 91E is to remove from Clause 129 an unintended restriction, because as drafted it precludes the Court of Appeal from hearing cases on appeal from the National Industrial Relations Court and the House of Lords from hearing such cases on further appeal should one somehow reach it. My Lords, this was not intended, of course. These appeals will be on points of law; and I would invite noble Lords to approve these two Amendments.
§ LORD DIAMOND
My Lords, before the noble Lord sits down, may I ask him whether he was going to invite us to consider these two at the same time?
§ LORD DRUMALBYN
My Lords, I was inviting noble Lords to consider Amendments Nos. 90G and 91E together. I said that 90G was a paving Amendment, and then I explained 91E. I beg to move No. 90G.
§ 9.53 p.m.
§ LORD STOW HILL moved Amendment No. 91A:
Page 96, line 5, at beginning insert—
(" No action for damages for breach of a collective agreement shall be entertained in any court, and ").
§ The noble Lord said: My Lords, I beg to move this Amendment, which is simply designed to introduce some clarity into a clause which at the moment, I think, is extremely obscure. It is a matter of some importance. Clause 34, as your Lordships know, makes collective agreements enforceable in some circumstances. Clause 36 deals with the question of a breach of a collective agreement. When one reads those two clauses 321 it is awfully difficult to determine from them whether any action lies in the ordinary courts to claim damages for breach of a collective agreement. Certainly you can in the Industrial Court claim compensation upon the basis of an unfair industrial practice if you break a collective agreement. That is provided for in Clause 36. But I studied the Bill very closely to try to discover anywhere in the Bill some language which clearly states what I believe is the Government's intention, that no claim for damages for breach of a collective agreement can he brought in any court.
What I seek to do by the Amendment which I am now moving is to state that specifically and clearly. What I would venture to put into the beginning of Clause 129 are words which I think are perfectly clear and easy to understand:
No action for damages for breach of a collective agreement shall be entertained in any court…
I think I am right in saying that that is the Government's intention. We were told that when we discussed this point on Committee. I think it might be stated in terms so as to remove any doubt. I agree that if you analyse Clause 129 as it stands, and take it to pieces with great labour and try to collect its constituent elements you might draw the inference from the words, "or claim damages" that that is what is intended. It is a great pity to draft clauses in such an extremely obscure form as to put a person of moderate intelligence, such as myself, to great pains to try to discover from the terms of the clause "Aye" or "Nay" whether you can go to Queen's Bench Division and claim damages for breach of a collective agreement. I have tried to make that plainer, and I hope I shall not be told that my words produce precisely the opposite effect. I am tired of being told that and I do not think it would be true in this case. I hope that the Minister will agree either to accept that language or to undertake to put in some language to produce the result which the Government intend. Your Lordships will see that Amendment 91B is simply part of Amendment 91A which I have just moved. It seeks to leave out the words "claim damages" and to insert the words "to obtain an award of compensation". That is necessary to complete the Amendment, and I hope that the
Government will accept both those Amendments. I beg to move the first one.
My Lords, may I ask one question here? Clause 129 surely is to determine that no court other than the Industrial Court shall entertain any proceedings brought under Clause 36 of this Bill, which starts off by saying—It shall be an unfair industrial practice for any party to a collective agreement",and I presume it was to make it quite clear that any breach of a collective agreement could only be settled in the Industrial Court. I am asking this as a question.
§ LORD DRUMALBYN
My Lords, so far as the Bill is concerned I think my noble friend is correct and the answer to his question is "Yes". Dealing with the Amendments of the noble Lord, Nos. 91A and 91B, we are wholly in sympathy with what we understand is the purpose of those two Amendments. They pare designed to strengthen the drafting of Clause 129 so that, together with the Bill's other provisions in respect of proceedings in contract, the clause will more effectively express our intentions. We are grateful to the noble Lord for putting them down, and it is with considerable reluctance that I have to say that we do not think that they have yet got it quite right—any more than we did in the Bill as printed.
My Lords, the difficulty about these Amendments is that they assume that there are no other ways of enforcing a collective agreement than those specified in this clause. Thus, their wording would replace the uncertainty it removes by another of the same kind. It would leave the way open for actions in existing courts to enforce agreements in these other ways—for example, actions in existing courts for an injunction as an alternative to, or duplicating, one in the Industrial Court for an order under Clause 101(3)(c). This is a defect which also characterises our own wording as the Bill is now drawn. However, when we come to consider a later Amendment the new clause after Clause 136, No. 91H, is closely linked both with Amendment No. 90G which we have just debated, and Amendment No. 91B, and 323 also to this clause. I hope to show that the wording of Amendment 91H removes this weakness. In the light of these considerations, I hope that the noble Lord will agree to withdraw his Amendments.
§ LORD STOW HILL
My Lords, I am grateful to the noble Lord. I have studied very closely the new clause in Amendment 91H and my only comment is that that again does not contain any language which says precisely that you cannot ask for damages in the High Court of Justice, Queen's Bench Division for breach of collective agreement or ask for any other relief such as an injunction or account or declaration in the High Court. Therefore, it seems to me that Amendment No. 91 was subject to the same criticism I ventured to make in regard to Clause 129. Perhaps I am wrong. We shall consider it more fully when we come to that new clause. I am grateful to the noble Lord for what he said about the wording I suggested. I accept the criticism that it deals only with damages and not with injunctions, accounts or declarations. But I should have thought that that could have been put right by including a reference to the other forms of relief in the words I suggested. I agree that it is difficult to get it right. I hope he will give it further consideration and I couple with that remark the observation that I do not think that Amendment 91H quite deals with the point. Having said that I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Amendment moved—
§ Page 96, line 12, at end insert—
§ ("( ) The preceding subsection does not apply to any proceedings on or in consequence of an appeal from a decision or order of the Industrial Court.").—(Lord Drumalbyn.)
§ LORD STOW HILL had given Notice of his intention to move Amendment No. 91C.
§ Page 97, line 23, leave out subsection (4).
§ The noble Lord said: My Lords, this Amendment relates to a point which I ventured to put at the Committee stage. Since then I have received a letter from the noble and learned Lord the Lord Chancellor. I am most indebted to him for writing me. The letter wholly satisfies me. In those circumstances, I shall not seek to move this Amendment.
§ LORD HUGHES had given Notice of his intention to move Amendment No. 91F:
§ Page 97, line 27, after ("association") insert ("joint industry board").
§ The noble Lord said: My Lords, this Amendment would have been consequential on another Amendment which the Government did not accept. I therefore do not move this Amendment.325
§ 10.4 p.m.
LORD DRUMALBYN moved Amendment No. 91G:
Leave out Clause 133.
§ The noble Lord said: My Lords, this is a purely paving Amendment to make way for the introduction of the new clause to follow Clause 136. It may be convenient to speak to the new clause at the same time. The purpose of the new clause is to express more precisely the Clause 133 restriction of the jurisdictions of the Industrial Court so as to make clear that besides being debarred from entertaining proceedings in tort (which Clause 133 already achieves) it is also precluded from entertaining any proceedings in contract other than those arising on jurisdictions expressly conferred on it under Part VI of the Bill. The need to do this was pointed out in Committee by the noble Lord, Lord Tangley, and the noble and learned Lord, Lord Wilberforce. I should like to say how grateful we are to them for having brought these matters to our attention. The purpose of the two Amendments is to establish more effectively and clearly the demarcation between certain jurisdictions of the existing courts and those which Part VI of the Bill confers on the Industrial Court.
§ We should have preferred to avoid two bites of the cherry and simply to introduce an Amendment to Clause 133. Unfortunately, the structure of the Bill prevented us from doing so, because as your Lordships will have noticed, Clause 133 fits snugly into a little trio of Clauses, 130 to 133, under the cross-heading, "Proceedings in tort". That is the right place for the clause as it is now drafted. The revised version, however, covers proceedings in contract as well as those in tort. Accordingly, we now seek to remove it to a new place in the Bill, where it can precede Clause 137, under the cross-heading "Supplementary".
§ The new clause first of all reproduces unchanged the provisions of the clause which the present Amendment seeks to delete. Secondly, it introduces in paragraph (b) a new provision in respect of proceedings in contract. These, when read in conjunction with Clause 129, as now amended, allocate between the existing courts and the Industrial Court jurisdictions in respect of proceedings in contract more specifically and with 326 greater clarity. In oilier words, paragraph (b) sets beyond doubt that the Industrial Court has no general or implied jurisdiction in contract. Its only jurisdiction in contract is in respect of matters based on Part VI of the Bill. The Amendment covers complaints and appeals for which Part VI as printed already provides. It also covers "applications", a new provision introduced in Part VI by Amendment 85E, which the House has already accepted. The words "in consequence of" are needed to cover the possibility of proceedings for contempt of court in cases of non-compliance with an order of the Industrial Court made in remedy of a complaint.
§ In Committee the noble and learned Lord, Lord Wilberforce, asked about actions for damages being brought before the Industrial Court. This is a rattier obscure point. The remedies which the Court may award in respect of complaints for breach of collective agreement include compensation, but not damages. The circumstances in which the Court may award damages arise under Clause 113(1)(e) on the hearing of appeals from industrial tribunals on actions under Clause 112 in respect of damages for breach of an individual contract of employment. So it is appropriate to use the word "damages" in Clause 129, both because that is a remedy available in proceedings in contract before the existing courts and because, when Clause 112 is in force, it will also be available in the circumstances I have described from the Industrial Court. I beg to move.
§ LORD STOW HILL
My Lords, the last reference to damages illustrates the complications of this Bill. I understand that it refers to damages which can be granted under Clauses 112 and 113 and is coupled with damages at law in large for breach of a collective agreement. Though I do not question the accuracy of the conception, I point to the complexity. I myself have no complaint about, and, on the contrary, would approve, the removal to a separate new clause of the cluster of provisions to which the noble Lord referred. The cluster refers to a particular aspect of tort which I should have thought could well stand by itself. But I think that this is a convenient arrangement, and I hope that the House will accept it.
327 I have already made in advance the comment that I think ought to be made about it: that this new clause does not contain the language which it seems to me ought to be found somewhere in the Bill; namely, language with which I sought to incorporate in my Amendment No. 91A, which would say clearly and beyond peradventure that you cannot go to the Queen's Bench Division and ask for damages for a breach of, or an injunction to restrain a breach of, or an account of profits, or a declaration in respect of, a collective agreement. Though we shall he passing this new clause, that language still does not appear in the Bill. The noble Lord, Lord Drumalbyn, has recognised the difficulty, and he has agreed that this is a difficult matter of drafting. I hope that between now and the Third Reading of the Bill he will find means to introduce that language somewhere in the Bill so as to eliminate any doubt as to whether the ordinary common law remedy in damages for breach of collective agreement under Clause 36, or any other clause, exists. It is the plain intention of the Government that it should no longer exist, and I hope that this will be stated plainly, and not by implication, as it is at present—if it is stated at all—in the language of what will now be subsection (1) of Clause 129.
§ LORD DRUMALBYN
My Lords, I will take note of what the noble Lord has said and pass it on to those more competent than I am to judge of these matters. Perhaps I may write to the noble Lord between now and the next stage of the Bill.
§ 10.13 p.m.
§ LORD BEAUMONT OF WHITLEY moved Amendment No. 91:
After Clause 134, insert the following new clause
Increase of penalties for breach of contract involving injury to person or property
(".Section 5 of the Conspiracy and Protection of Property Act 1874 shall be amended by the substitution of '£200' for 'twenty pounds'.")
§ The noble Lord said: When this subject was discussed in Committee, the 328 Government said that they wished to keep Section 5 of the Conspiracy and Protection of Property Act 1874. I think there was considerable agreements in all parts of the Committee that this was the right thing to do. One of the points made was that it was important that it should go on the Record, and be seen, that breaches of contract which might involve injury to persons and property—though here I emphasise "persons"—should be seen to be legal and to carry penalties. It was stated that the penalties as they were in the Act were inadequate, but the point was put that the mere fact that they were illegal was important. I believe that we should bring our laws up to date. If we have on the Statute Book laws which we do not like, we should do away with them; but if they serve a purpose any penalties laid down should be consonant with normal standards of today. A sum of £20 is not an adequate penalty for a breach of contract involving injury to persons. There is a case for saying that this Act should not be on the Statute Book at all; but if it is to remain, there is no case for saying that the penalty should be £20. I have merely put forward £200 as a possible increase, though, as noble Lords on the Labour Front Bench have 'pointed out at one time or another tonight, possibly by the standards of present inflation it should already be going up.
§ I think that it probably does a disservice to the psychological effect of having a law on the Statute Book, and having a law which people care about, if the penalties are seen to be totally derisory in terms on modern money values. This is the reason why my noble friends and I have put down this Amendment. I am informed by the Government that this is an inappropriate place for it because if we carried the Amendment it would put all the other penalties in the same Act totally out of line, and it is not appropriate for us to try to alter all the other penalties in this Act. I accept what they say and therefore shall not press this Amendment. I will merely move it, in order to invite the Government to agree with the general principle that, if there comes an appropriate time, it is right that penalties should be brought into line with modern monetary values in Acts which the Government are 329 specifically keeping on the Statute Book and repeating in modern Acts. I beg to move.
My Lords, while we recognise the desire of noble Lords that the penalties of this section of the Act should reflect more adequately present-day conditions, we doubt whether this is appropriate to the Bill now before your Lordships. I would say at the outset that there is a misprint in the noble Lord's Amendment: it refers to the Conspiracy and Protection of Property Act 1874, whereas it should be 1875. But the Government have frequently made it plain that criminal provisions should not be brought into the industrial relations field other than where there is a risk of violence or injury.
In addition to our natural reluctance, which I believe is shared by many noble Lords, to delve into the justification or otherwise of criminal penalties, there are considerable practical difficulties raised by the proposed Amendment. The noble Lord, Lord Beaumont of Whitley, said he understood that one of the objections to our acceptance of this Amendment would be the need to alter other parts of the Act, which, strictly, do not come under the Industrial Relations Bill. That is perfectly true, because Section 7 would also have to be revised. But the real problem is that the 1875 Act is not restricted in its application to industrial relations matters: it covers a far wider field. For example, Section 5 applies to any person whowilfully and maliciously breaks a contract of service or hire, knowing or having reasonable cause to know that the probable consequences of his action will be to endanger life.Any wilful breach of contract to hire equipment to a hospital, for example, would be actionable under Section 5 in the circumstances set out in that section; and so could other commercial contracts for hiring. We do not believe that this Bill is the right place to make the Amendments to an Act such as the noble Lord has suggested. We accept, and are sympathetic to, his view that the figure of £20 is inadequate for the present day. Whether or not that will ever be altered in the future must remain for the future, but I do not believe that it would be right to alter it in this Bill.
§ LORD BEAUMONT OF WHITLEY
My Lords, at the end of a speech in which I thought that the noble Earl was entirely missing my point, he very courteously said that the Government were sympathetic to the idea that the penalties should be changed. In my opening speech I said that I entirely appreciated that this was an inappropriate place to make the Amendment—and although I got the year of the Act wrong, that no doubt could have been changed on Third Reading. However, having obtained from the noble Earl the statement that if the time ever comes when the 1875 Act is amended, the Government are sympathetic to the idea that the penalties on this particular point which they have specifically retained in this Act should be made more realistic, I am at least moderately happy. I therefore beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ LORD DRUMALBYN moved Amendment No. 91:
After Clause 136, insert the following new clause—
General restriction on jurisdiction of Industrial Court
(".The Industrial Court shall not have any jurisdiction except that which is expressly conferred on it by or under this Act; and accordingly that Court—
§ The noble Lord said: my Lords, I beg to move this Amendment, the effect of which I have already described.
§ 10.21 p.m.
§ LORD STOW HILL moved Amendment No. 92:
After Clause 136, insert the following new clause—
Protection of journalists from proceedings under this Act in respect of certain oral or written reports made in exercise of their profession.
(" —(l) For the avoidance of doubt it is hereby declared that no action or other proceedings shall be brought in any court include-
ing the Industrial Court and any industrial tribunal by virtue of any of the provisions of this Act against any person, being a person engaged whole-time or part-time in the profession of journalism, in respect of any matter to which the next subsection applies published orally or in writing by that person in the exercise of his said profession in any newspaper, magazine or other periodical publication or in the course of any broadcast or television performance.
(2) This subsection applies to any such matter as is referred to in the preceding subsection which in so far as it consists of an allegation or allegations of fact constitutes a fair and substantially accurate account or report of the whole or some part of some happening or happenings (including a speech or other declaration delivered or made publicly whether orally or in writing) which are of public concern, and in so far as it consists of comment on such happening or happenings or such part thereof as the case may be is a fair comment thereon, or is a fair comment on some subject of public concern, or is a fair comment both on such happening or happenings or such part thereof and on such subject.
(3) For the purposes of this section the proprietors of any such newspaper, magazine or other periodical as is referred to in subsection (1) of this section and any person who in the ordinary course of his employment took any part in the publication of any such matter in such newspaper, magazine or other periodical publication, and any person, including any public authority, who or which in the ordinary course of his employment or in the ordinary course of the discharge of its public duty, as the case may be, took part in the organisation or production of such television or broadcast performance, shall be deemed to be a person engaged in the profession of journalism.
(4) In any proceedings brought by virtue of any of the provisions of this Act against any person, being a person engaged whole-time or part-time in the profession of journalism within the meaning of this section, in respect of any matter published orally or in writing by that person, it shall be presumed, unless the contrary is shown, that such matter is matter to which subsection (2) of this section applies, and if and in so far as any such proeedings are based upon an allegation or allegations that any such person induced or threatened to induce another person to break a contract to which that other person was a party, the burden of proving such allegation or allegations shall he upon the plaintiff or complainant in those proceedings.
(5) In this section the word "induce" has the same meaning as it has in section 96 of this Act")
§ The noble Lord said: My Lords, I beg formally to move this Amendment. This is what perhaps I may describe as the second alternative journalists' Amendment, designed to give protection to journalists. We have already discussed this topic on four separate occasions 332 during the course of our debate, and I do not think I should be usefully taking up the time of the House if I again asked your Lordships to examine this new attempt exhaustively. This Amendment would protect only the professional journalist. When we met last week my noble and learned friend Lord Gardiner moved an Amendment to Clause 90 which was a little more extended in scope, but the Government intimated that they were not in a position to accept it. I will say no more about the new clause at present before your Lordships than this. Although it is substantially on the same lines as the new clause which I proposed when we were at the Committee stage of our debates, it has been recast. The noble and learned Lord the Lord Chancellor criticised the drafting of the earlier clause, and made various observations with regard to it. I did not myself, as I indicated at the time, think that any of those criticisms had any substance at all, but in drafting the clause in its present form I have sought to take account of them so far as possible.
§ The reason why I think it would not be useful to take your Lordships' time going into the substance of this clause is that the Government and those who promote this clause are in disagreement on the basic question whether the journalist is at any risk at all. Ministers have stated that it is their clear opinion that there is no such risk. If they are right in that view, then I and those associated with me accept that logically there can be no possible need for a new clause on the lines of that which your Lordships now have before you. Unless we can persuade the Ministers of the Government that there is a risk, as I have said, there is no point in examining the clause. We have not been able to persuade them of that, and it is for that reason that I do not invite your Lordships to consider its contents in any more detail.
§ I think, however, the matter ought not to be left quite there. I think it would be right that I and those associated with me in putting these proposals before the House should make it perfectly clear what our own view is on the question of risk. Ministers think there is no risk. It would be wrong, and indeed irresponsible, if I (or those associated with me 333 in preparing this new clause) let it be thought that in our opinion there was a grave risk. We have never said that, and we do not think it. All the same, I find it difficult to persuade myself that there is not a slight risk; indeed, I think there is a slight risk. I gave examples, and my noble and learned friend Lord Gardiner, when he was moving an Amendment to Clause 90, also referred to the question of risk. I think it is the view of all of us who have identified ourselves with this Amendment, while there is certainly no grave risk—that we do not suggest, and never have done—for reasons which we have previously given, and which we do not now repeat, we feel that there is a slight risk, and that it cannot be completely disregarded.
§ What we think is a matter of some slightly greater importance is this—and this is a point which has been made by us in the course of these debates. It would be unfortunate if the journalistic profession felt any anxiety about publications which might be construed as knowingly inducing workers to strike, and if, over the years, a hesitation crept into editorial offices about publishing honest opinions in favour of workers who were either striking or minded to strike. We think that is of somewhat more importance that the slight risk that on occasions, at rare intervals, a journalist might find himself in some trouble before the courts.
§ We have often said from this side of the House that, in any event, we think the proceedings which are outlined in the various clauses of this Bill are unlikely to result in actual complaints before a court, and we certainly think that is the case with regard to any risks that may face journalists. I have had an opportunity of discussing this with those associated with me, and particularly with my noble and learned friend Lord Gardiner, and he has authorised me to say that he concurs in the view that I have expressed. He is present in the Chamber and I say this in his presence.
§ May I say that we think there is a tendency, which has been creeping in over the years, for journalists to be nervous about editorials which might be construed as having the effect of inducing workers to strike. We think the risk is slight; we certainly do not suggest that there is any grave danger to the liberty 334 of the Press, and we leave it there. Of course, in those circumstances it can be said that all legislation of any substance carries with it the risk of untoward consequences which are not expected, and that the slight risk which we think is present should be encountered. If we were dealing with any topic other than the freedom of the speech and the independence of the Press, that is a point of view which, speaking for myself, I would readily accept: one always has to take some risk. But in this country we are sensitive, and rightly sensitive, to anything which could conceivably be regarded as an encroachment upon the legitimate province of criticism and comment and free speech. That is absolutely sacred to us, and for that reason we feel that it is not justifiable in this context to accept the slight risk which in other contexts could be justifiably accepted.
§ That is the general position that I would like to make clear before parting with this new clause. That is the position as we envisage it. I think it is useless to continue the discussion because the Government have clearly made up their minds that there is no appreciable risk, and obviously at this late stage of the Bill they will not change their minds on that. Therefore it is obviously useless to discuss possible remedies to deal with such a position. I am sure the Government Front Bench and the whole House will agree with me on that. I thought it right to explain our position. As I have said, it would be wrong and irresponsible to leave our own attitude of mind in doubt about this, or to exaggerate or magnify the gravity of any peril which we think does not exist. With that, I formally move the Amendment, and would ask the view of the House, although speaking for myself I would not seek to take your Lordships into the Division Lobby upon it.
§ 10.30 p.m.
§ LORD RITCHIE-CALDER
My Lords, in this dialogue of the deaf which we are having in this debate may I go on record, since we are obviously not going to make any real impression, to point out that, as someone who has been 40 years in journalism and walked the tightrope of libel and D-Notices and the rest, I know what this kind of inhibition really means. I believe this is in fact very definitely and unquestionably an 335 inhibition on the freedom of the Press, not because, as my noble friend has pointed out, we think that perhaps even under this Government this measure would be used in any punitive sense, but we do know (I know, anyway) what is in fact the meaning of this kind of thing. It in fact inhibits an editor, or whoever may decide these things, not to publish a cartoon which might be so construed, or a television producer to accept that microphone which is pushed in front of Jack Dash in the docks. That sort of thing will be cut, because whatever he may do may be interpreted as condoning or encouraging somebody who is inspiring unrest in the trade unions.
I have had a great deal of experience of this, and I can think back over a great many years in which many of the things which I was capable of doing and allowed to do, and I think in the nature of social history was important to do, would not have appeared in the British Press under a suggestion of this kind of constraint. Therefore, it is not a question of whether a Government would invoke, or a tribunal would invoke, or an employer would invoke the terms of this Bill. But I know that I have lived my life with "they". It is this unknown "they", it is "they" who do not want this, "they" who do not want that, "they" who do not allow us to do so and so. I say unequivocally this will be a restraint; and it is not a restraint on people who are deliberately contriving or devising industrial unrest but an inhibition on the freedom of the Press.
§ BARONESS WHITE
My Lords, I should say that I am no longer a member of the National Union of Journalists, but I once was, and before I had the honour of becoming the second woman Lobby correspondent—my noble friend Lady Lee was the first—I was an industrial correspondent, and therefore have some experience, though nothing approaching the record of the noble Lord, Lord Ritchie-Calder, of working in a newspaper office on industrial topics, including the reporting of strikes. I entirely agree with what my noble friends have said, that the real danger which we apprehend is not that there will be a lot of journalists dragged before the courts—we do not think that will happen; one may have occasional cases, but 336 not very often—but that what will happen, in our submission, is that, unless one has a very clear understanding about this situation, one may have in newspaper offices the sort of situation which we all know, when you get the copy back on your desk marked "check for libel". This is very common in any newspaper office. The office nearly always keeps a tame lawyer somewhere around who makes an honest guinea—it is no longer guineas, but decimal currency—by advising on libel, and he nearly always errs on the side of caution.
If this kind of attitude were to be brought into industrial reporting, it would be very inhibiting for the journalists themselves and would be against the public interest, particularly when you are dealing with strikes or the lead-up to a strike. Anyone who has done even a small amount of this sort of reporting knows that almost always in a strike situation the ostensible reason for the strike is not the real one. I was taught this lesson by the man I have always regarded as the best industrial correspondent in my lifetime, Trevor Evans of the Express. If anybody really knew what was going on in a strike situation, it was Trevor Evans. It was he who helped me to see "below the surface" reasons.
If you make it difficult for a journalist to face his editor when he hands in his copy, because he may be told, "Look, we really dare not say this. You may be absolutely right, it may be the complete truth, but we dare not say this because it may be taken that we shall be in some way inducing industrial strife", that would be very bad for the journalist professionally, and also damaging to the public interest.
I do not wish to say more. I do know that this Bill has caused anxiety to the National Union of Journalists, and I think it has been absolutely right that my noble friend should have ventilated the matter so that we can at least indicate our fears, and so that the Government can give us assurances that, in their view, there is no such danger. I hope that that assurance will at least get to the newspaper offices in the country, and particularly the local newspapers. A big national newspaper can usually take a line, if it wants to; but with the local newspaper—which is so often where we 337 have the real local interest in a strike—I think you may be in very serious danger. A much smaller newspaper, without the necessary resources if anything did go wrong, would have to face possible court action and would err very much on the side of caution. In addition, very often the journalist on the staff of such a paper is much less sure of himself than someone who has a national reputation. For all these reasons, I think we have been entirely justified in ventilating a matter which has caused very considerable concern in the profession.
§ 10.38 p.m.
§ LORD DRUMALBYN
My Lord, I think we have had a useful debate on this matter, but I should like to say at once that the fears—even though the noble Lord, Lord Stow Hill, made it clear that his fear was simply in regard to a slight risk—that have been echoed tonight in the House have not been widely spread, so far as I have been able to see, in the Press as a whole. I think the reason is that, quite simply, the fears are not strongly held. It would be very sad if they were. The fact is that the Bill does not give any reason for the fears to be held, as the noble and learned Lord, Lord Donovan, himself clearly discerned in his Second Reading speech, when he pointed out that, should a correspondent advise workers to come out on strike, he would still not be liable under the Bill because it could not be shown that the workers were being advised to strike in breach of their contracts of employment. The reason for that is that it is open to the workers concerned to give due notice, and thus to take strike action which would not be in breach of their contracts.
As my noble and learned friend the Lord Chancellor said, fair reporting and fair comment could not, as such, give rise to proceedings under the Bill. If one takes that in conjunction with the explanation given by the noble and learned Lord, Lord Donovan, one can see that there is really no risk at all. This was the point that my noble and learned friend made, and to seek to insert something into a Bill which is not a 338 matter of doubt can give rise to unfortunate side effects. If we were to single out journalists in the way that the noble Lord has done in his very carefully worded Amendment, the corollary of that would be to create some doubt that reports and comments made other than in the profession of journalism would give rise to some special liability under the Bill, perhaps in respect of inducement as an unfair industrial practice. Such a course would be wholly misleading and, since there is no need for special protection for journalists, the Amendment, if accepted, could have an effect which is contrary to its intention.
It is for these reasons, and for these reasons alone, that we reject the Amendment. If it really were necessary to give the Press this protection in order to enable them to do their jobs with full freedom, then of course we should be the first to concede it. But after the most careful examination we have decided that this is not necessary. I think the noble Lord, Lord Stow Hill, will accept that the difference between us is very small, since he has made it quite clear that he thinks there is only a slight risk. In view of the possible side effects of legislating in this way; in view of the fact that we believe that the Press has a pretty shrewd instinct in this matter for what is fair reporting and fair comment; and in view of the very high standards that the Press of this country maintain and their desire to avoid doing anything which they ought not to do in these respects—and one must admit that it would be wrong for the Press to induce people to break their contracts when to do so is against the law, or indeed to induce them to commit an unfair industrial practice—there is only a narrow margin between us here. In those circumstances, all I can do is to express our admiration and satisfaction for the way in which a matter of the very greatest importance has been ventilated in this House with great moderation, and to say, respectfully, that if there is a difference of opinion it is a very slight difference, and we do not believe that the need for this clause exists.
§ On Question, Amendment negatived.