§ 8.10 p.m.
§ Consideration on Report resumed.
§ BARONESS SEEAR moved Amendment No. 98:
Page 126, line 22, at end insert—
(" ( ) Where the Secretary of State is satisfied that in relation to any trade or industry or section of a trade or industry, the maintenance of any one or more of the general principles set out in section 1(1) of this Act so requires, he may by order made by statutory instrument provide that any one or more of the provisions of this Act shall cease to apply to that trade or industry or section of a trade or industry as the case may be.")
§ The noble Baroness said: My Lords, I beg to move the Amendment standing in the name of my noble friends and the noble Lord, Lord Archibald. This Amendment is in no sense an attack on the principles laid down in Clause 1 of this Bill; but the best of principles must, on occasion, be allowed to have exceptions. The Amendment is being moved for a very particular case, as I think many of your Lordships are aware, and for what can indeed be regarded as a unique case: the case of Equity, which has already been discussed at considerable length in debates on this Bill at previous Sittings. The reason why we are asking your Lordships to consider this Amendment is that in the case of Equity, as the noble and learned Lord, 584 Lord Gardiner, explained in the previous discussion of this subject, the theatrical profession is pre-eminently an occupation which is seriously overcrowded and which attracts to it a very large number of enthusiasts who are prepared to work under conditions which are quite abnormal in comparison with the conditions in any other kind of employment. I think it is the view of practically everybody connected with this profession that unless there is some restriction on entries into the profession, the condition, already serious, of many people in its employment will get considerably worse. Thus, the requirement to belong to Equity is a requirement quite exceptionally in the interests of people engaged in the theatrical profession.
§ It may well be said that the problem has been met by the inclusion of the clauses dealing with the approved closed shop. On paper, no doubt this could be used as a way of dealing with the problems of Equity, but the requirements in order to fulfil what is needed to be an approved closed shop are long and complex. It is very likely that the time that would elapse before such provision could be applied to the case of Equity would mean a serious deterioration in a profession in which the situation is already highly unsatisfactory. We are moving this Amendment because it provides a quick and simple way of dealing with a very special problem. It is the avoidance of delay and the ability to deal with the matter quickly which is of the essence of the case and the reason for our moving the Amendment. We hope, recognising, as I am sure your Lordships do, that this is a particular case, that you will look again at the Amendment and the arguments behind it, and will consider incorporating it into the Bill in the interests of this very unusual occupation.
§ LORD BERNSTEIN
My Lords, the other night my noble friend Lord Ritchie-Calder said that part of the discussions on this Bill, in the Report stage especially, have been a dialogue of the deaf. I do not know whether this Amendment moved by the noble Baroness is to be another case of a dialogue of the deaf. A number of people have spoken on the Equity and A.C.T.T. situation, and my noble and learned friend Lord Gardiner made a most moving and well-balanced 585 speech about two weeks ago. Nothing has happened, and I wonder whether nothing will happen again. I should like it to go on record that I have known Equity and have worked with them for about thirty years. They have been a most responsible organisation and have made a great contribution to the theatre. I cannot see any reason why anybody who believes in industrial relations, and in advancement in industrial relations, would wish to hurt Equity in any way. There is nothing more to be said about the Equity case. It has been written about, spoken about, discussed. I urge the Minister, or the noble and learned Lord the Lord Chancellor if he is dealing with this, to take a new look at this suggestion, in the hope that this will he the solution. I support the Amendment.
§ 8.16 p.m.
§ BARONESS WHITE
My Lords, the noble and learned Lord the Lord Chancellor will appreciate that we have spent a great deal of time on the Committee and the Report stage of this Bill in discussing this problem. This is not the last ditch but the penultimate ditch, because there is one further proposal with which the Government are acquainted, and I do not know whether we can have any reference at all to that to-night. In fact, it is not covered by this particular Amendment. It may be that the Government feel that this Amendment is drawn a little wide. One could understand that. But I have no doubt that the noble Baroness, and the others who sponsored this Amendment, have put it down because we are assured, by those who have knowledge, that the Bill as it stands does not achieve the object as far as Equity is concerned. We have said this on a number of occasions and have tried various means of meeting the Government's points and at the same time trying to help a union which, as my noble friend Lord Bernstein has said, is regarded by those who have worked with it as a model of its kind. It is they who keep assuring us that they just do not believe that the Bill in its present form can conceivably work. They consider that the sort of timetable which is envisaged in the procedure just will not prove practical in the conditions which apply in the theatrical and cinematographical industries. They also feel that the assurances 586 given by the Secretary of State for Employment—absolutely sincere, as we are sure they are—because they will depend on completely fresh legislation, simply will not be enacted in time.
Therefore, the purpose of this Amendment is to provide a speedier method, and if our apprehensions prove correct, then the Secretary of State will be able to give effect to the pledges which he has given much more rapidly than if he had to embark on a completely fresh Bill, going through all its stages in both Houses of Parliament. It is as simple as that. We just do not believe that the Bill is adequate. The Secretary of State says that it may not be; he admits that there is an element of doubt. He has given his word that if the apprehensions prove correct they will be met, but he has suggested doing so by legislation. It is suggested here that if further action is required he should take powers in this Bill to do it by Statutory Instrument. I hope very much that after all the discussion that we have had and the hours that we have spent on this problem, which is still unresolved, the Government will accept this as a possible method of getting round these difficulties,
This leaves it completely open to the Secretary of State. He is under no compulsion. He will be listening to arguments as to the way in which the Bill has in fact worked out in practice. He will have complete discretion as to whether or not he wishes to introduce a Statutory Instrument. This gives him the opportunity to carry out the pledge which he has given in writing, which we have all seen, but to do it in a timely way, which will at least remove the very deep anxiety—and I would stress this to your Lordships—that Equity feel, that the organisation which has been built up over years will be ruined. Your Lordships may think that that is an exaggeration, but that is the view they take. They do not believe that they can hold the position with the Bill as it stands with the kind of procedure which they will be obliged to go through, and they are really fearful for the state of their organisation. Therefore the question of time is of the essence, and use of a Statutory Instrument, as we all know, is a much more rapid way of proceeding when trying to find a place in the always overcrowded 587 list of legislation. I hope that these arguments will prevail on the Government and that they will see fit to accept the Amendment.
THE EARL OF BALFOUR
My Lords, this Amendment is to enable the Secretary of State to exempt particular trades or industries or sections of them from the provisions of the Bill. If, for example, the Secretary of State were to give Equity exemption, I ask whether any other union could take advantage of that and also ask for exemption. It is difficult in legislation to allow one party to get out of the provisions of an Act. I ask whether there would be any possibility of other unions being able to claim exemption under this measure if this Amendment were accepted.
§ LORD PLATT
My Lords, surely this points to the weakness of the whole situation. The noble Earl, Lord Balfour, has just told us that if this provision gave one particular union the possibility—but only if the Secretary of State agrees—of opting out of certain conditions of this Bill, it would open that possibility to everyone else. That seems to me to have been the thinking throughout this Bill in many respects: if the slightest concession is made to some of the professions, well then there is the danger that all kinds of trades will use it for their own ends. But it still rests with the Government; it still rests with the Secretary of State. I hope that the Government will take a liberal view of this matter and preserve for themselves a certain freedom of action.
§ 8.22 p.m.
§ THE LORD CHANCELLOR
My Lords, I cannot help thinking that it was a little ungrateful of the noble Lord, Lord Platt, to make that last interjection, because the suggestion he made was that we were resisting the slightest concession. Yet he knows perfectly well that we have made concession after concession throughout the passage of this Bill. There was a notable concession this afternoon, and I need go no further back than the time just before we adjourned during pleasure. It is not good enough, after we have made concession after concession to professions, to say that we are not prepared to make the slightest concession.
588 There was a great deal in what my noble friend Lord Balfour said. I was much relieved, when the noble Baroness, Lady Seear, moved the Amendment, to know that within this extremely wide frame of words all that she and the noble Lord, Lord Bernstein, and the noble Baroness, Lady White, were really concerned with was one particular union. As noble Lords will remember, we have had a great deal of discussion about that particular union, and I suppose it is not the least bit of good my repeating what we have said again and again; that is, that we have not the slightest intention of letting Equity die. We are not in the least bit convinced that the solitary peg upon which its future continued existence depends is a pre-entry closed shop or, as the union prefers to call it, a point of entry closed shop.
Not a single Member of your Lordships' House who has spoken has even pretended to support that case to-day, and that is the point at which we become a little sceptical. We have made provisions which have within their purview employees among a group of two unions only which are specially protected. It may be that those particular provisions are not by themselves enough, but we have again and again stated our belief that any further protection that is required could be provided by agreement between the union and the employer on conditions of entry into the theatrical profession, provided that such conditions did not include a pre-entry condition of membership of a particular trade union. We do not believe that that is necessary.
Certainly listening to the case which was presented on this Amendment I have heard no speaker so far produce the smallest scintilla of evidence that that is necessary. I accept, of course, that people are anxious, and the noble Baroness was right to say that they were anxious about it. But what one has to consider in this case is not simply public anxiety, whether the anxieties are justified or not. The partticular anxiety which has to be justified here is the belief, for which no evidence has been provided, that, despite the provisions for a post-entry closed shop retained in the Bill and despite the possibility of arriving at conditions of entry into the profession other than a pre-entry closed shop which could be negotiated with the existing employers' association, 589 only a pre-entry closed shop will do. This is not self-evident and there has been no evidence put forward to support it.
I must remain completely agnostic on the truth of it. We have said again and again that we respect Equity, that we respect the theatrical profession, but we do not believe that it will die and we do not intend that it should. I am not at all convinced that legislation is the only means by which to protect Equity. Another assertion made by the noble Baroness was that it might die so quickly that no help could be brought. That is another unproved assertion made by the noble Baroness—but none of these things is clear. I was relieved when the noble Baroness who proposed the Amendment—I was speaking a sentence ago about the noble Baroness. Lady White—suggested that this wide frame of words applied to only one union. It applies, as my noble friend Lord Balfour pointed out, not only to one union but it has in its phraseology the very dispensing power which cost James II his throne, although in those clays there was not the protection of a Statutory Instrument for some degree of Parliamentary control which in another context every Member of this House has in his Parliamentary career, which was totally inadequate but which now exists.
My noble friend Lord Balfour, was perfectly right, but he did not go nearly far enough. This Amendment, if passed, would allow the Secretary of State, on his simple say-so, to dispense with any union—or, I may add, any employers' association, because it is not limited to unions; and that is where my noble friend did not go far enough—from any provisions of the Bill or, so far as I can make out, from all of them, simply on his say-so and on the ground that any one of the principles in Clause 1 of the Bill would thereby be assured. As a matter of fact, it would not give much comfort to Equity if this Amendment were accepted, because the case for Equity, as I understand it, is not that the principles of the Bill are in jeopardy if a pre-entry closed shop is not accepted. This is far from being their contention. Their contention is that if a pre-entry closed shop is not accepted, the theatrical profession will be flooded with large numbers of entrants who will jeopardise the standard of life of those who practise in it.
590 But that is not provided for in the Amendment. So now you have an Amendment which would enable the Secretary of State to dispense with the whole law, on his simple say-so, by Statutory Instrument, subject to the degree of Parliamentary control which that involves, if he is satisfied that one or more of the principles in the Bill are thereby assured, when in fact all he had in mind is the particular situation of an unusual union for which special provision has been made in the Bill and whose particular case does not depend on any of the single principles in Clause 1. Of all the attractive solutions that have been prescribed at one time or another for this particular problem, this is probably the least satisfactory. But we shall continue to consider this matter. All I am concerned with now is this particular Amendment. I would say to the House that, whatever the other merits of the question, this is scraping the bottom of the barrel.
§ LORD DIAMOND
My Lords, the noble and learned Lord said that he would be good enough to continue considering the matter, which is always a welcome phrase, and that this was a very wide Amendment. I do not think anybody disputes that; but the noble and learned Lord referred to all the other attractive Amendments which had been put before the House. The trouble about those is that they have all been turned down, and at the end of the day one is compelled to do something. As we get nearer and nearer to the end of the Bill, the particular form of the Amendment has very much to be tailored to what little ground is left on which to place it. The noble and learned Lord said that our anxiety was, and indeed is—and we are grateful that he understands it so well—that before the care which he has in mind could be applied, Equity might die and there would be no proof. The last thing that we want to do is to be in a position to prove the noble and learned Lord wrong by producing the body.
This is a very wide Amendment and of course it is for the noble Baroness who moved it to decide what to do. It is easy for the noble and learned Lord to make the case that this is not the most suitable Amendment. Perhaps those of us who are very concerned about this 591 matter but feel that it could be dealt with perhaps in a slightly different way, will feel that there is some consolation to be drawn from the noble and learned Lord's remarks that he still has the matter under consideration.
§ BARONESS SEEAR
My Lords, since the noble and learned Lord said that he would keep this matter under consideration and since there will be a further opportunity to discuss it at Third Reading, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 166 [Short title, commencement and extent]:
§ 8.35 p.m.
LORD BELSTEAD moved Amendment No. 98C:
Page 127, line 9, at end insert (" or of different provisions of any enactment so specified ").
§ The noble Lord said: My Lords, this Amendment is intended to give greater flexibility to the provisions for the amendment and repeal of existing legislation. We submit that there are advantages in having such a power in reserve. For instance, an Amendment has been accepted (No. 93A) enabling the Secretary of State to make regulations concerning nominations by members of trade unions. That was dealt with last night. The present procedure operates under Section 10 of the Trade Union Act Amendment Act 1876 and it will be useful in that case to have the power to defer repeal of Section 10 when the rest of the Act is repealed. It may turn out that the power does not need to be used, but it is clear that some flexibility is desirable, in view of the large number of enactments amended or repealed in Schedules 8 and 9, and I hope that the House will agree that it is a wise precaution to make this Amendment. I beg to move.
LORD BELSTEAD moved Amendment No. 98G:
Page 127, line 15, leave out (" as appears ") and insert (" or savings as appear ").
§ The noble Lord said: My Lords, under the power conferred by subsection (2) of this clause, the Bill will be brought into operation in different stages, and subsection 592 (4) allows the Secretary of State to make such transitional arrangements as are necessary for the partial operation of the Act. But we are not certain that subsection (4) is wide enough to provide for satisfactory arrangements concerning the existing rules governing industrial tribunals. At present, industrial tribunals operate under regulations made by the Secretary of State in consequence of powers conferred by the Redundancy Payments Act 1965. The relevant sections of that Act are repealed in Section 9, and Clause 100(2) provides that the parallel provisions in Schedule 6 of the Bill will have effect in substitution for them. The problem is the volume of work involved. It is not entirely certain that it will be possible to re-write all these provisions before the Act comes into force. This Amendment will enable the existing regulations to continue so long as is necessary. This could possibly be done under subsection (4) as it stands at the moment; but the Amendment, by referring to the word"savings ", puts beyond doubt both the Government's intentions and the power taken under this subsection. I beg to move.
§ LORD DIAMOND
My Lords, I do not wish to delay the House but I should like to ask one question. Can the noble Lord tell me where in this Amendment, or in the clause that it seeks to amend, the Secretary of State is compelled to bring in any part of the Bill at any particular time? We were much entertained during a previous Amendment by the statement that the Secretary of State could do almost anything. I want to be assured that it is not a case that the Secretary of State can refrain for ever from bringing in any part of the Bill.
§ LORD BELSTEAD
My Lords, I do not know that we are entirely on the same point. The effect of the Amendment is purely transitional. It is simply to continue the status quo until new regulations about industrial tribunals can be re-written. I do not think that I was putting the same point as the noble Lord.
§ The noble Earl said: My Lords, this is another small technical Amendment which refers to the Northern Ireland Government. The Government of Ireland Act 1920 reserves to Westminster the right to legislate on certain matters, including merchant shipping. Tucked away in Schedule 8 to this Bill is a small Amendment to the Merchant Shipping Act 1970. It has been pointed out that, for the sake of consistency, the Amendment should extend to Northern Ireland. I beg to move.
§ Schedule 8 [Enactments Amended]:
§ 8.40 p.m.
§ LORD BELSTEAD moved Amendment No. 98L:
§ Page 165, line 14, at end insert—
|" The Conspiracy, and Protection of Property Act 1875 (33 & Vict. c. 86).||In section 3, for the words"a trade dispute"there shall be substituted the words"an industrial dispute within the meaning of the Industrial Relation Act 1971 ".")|
§ The noble Lord said: My Lords, I beg to move Amendment No. 98L. The purpose of this Amendment is simply to ensure that the definition of"industrial dispute"in the Bill applies to the words"trade dispute"in Section 3 of the Conspiracy and Protection of Property Act of 1875. This proposal was, of course, contained in the earlier Amendment (No. 97F) to Clause 163, which was tabled by the noble Lord, Lord Diamond, and the noble Lord, Lord Stow Hill, and the House will be grateful to the noble Lords for drawing this point to our attention. The only reason for not accepting their Amendment as it stood was that in our view this Schedule and this form of words were rather more appropriate to an Amendment of this sort. I beg to move.
LORD DRUMALBYN moved Amendment No. 98H:
Page 165, line 22, column 2, after (" 1971 ") insert (" not being an organisation for the time being entered in the special register maintained under section 84 of that Act ").
§ The noble Lord said: My Lords, I beg to move this Amendment. Its purpose is to exclude organisations on the special register from the scope of the Trade 594 Union Act 1913 so that they are not subject to the restraints imposed by the Act on expenditure for political purposes. The 1913 Act is amended by Schedules 8 and 9 in such a way that the only provisions remaining operative will be those relating to restraints on expenditure for political purposes. These are not appropriate to the types of organisations which will be admitted to the special register; that is to say, organisations which are incorporated by Charter or Letters Patent or which are registered under the Companies Act 1948. Political activities are outside the normal range of activities carried on by chartered bodies and if any organisation registered as a company were to adopt political objects it would be required by Section 19 of the Companies Act 1967 to publish details of such expenditure. To apply the provisions of the Trade Union Act 1913 would, I suggest, only create unnecessary duplication. I beg to move.
§ LORD BELSTEAD moved Amendment No. 98J:
§ Page 166, line 15, at end insert—
|(" The Road Haulage Wages Act, 1938(1 & 2 Geo. 6. c. 44).||In section 15(1), for the definition of"Trade Union"there shall be substituted the words"' Trade Union ' means an organisation of workers within the meaning of the Industrial Relations Act 1971 ".)|
|The Industrial Assurance and Friendly Societies Act 1948(11 & 12 Geo. 6. c. 39)||
In section 6(1), for the words"or a trade union (whether registered or unregistered)"there shall be substituted the words"an organisation of workers within the meaning of the Industrial Relations Act 1971, or an organisation of employers within the meaning of that Act ".
In section 16(4), for the words"trade union"there shall be substituted the words"organisation of workers or organisation of employers ".
|The Insurance Companies Act 1958 (6 & 7 Eliz. 2. c. 72)||
In section 1, in subsection (5), the words"or to trade unions"shall be omitted, and after that subsection there shall be inserted the following subsection:
|carries on insurance business, this Act does not apply to it as an insurance company if the insurance business is limited to the provision for its members of provident benefits or strike benefits ".")|
§ The noble Lord said: My Lords, with the permission of the House I should like to speak on Amendments Nos. 98J and 98K together since their purposes are related. The three parts of the first Amendment, 98J, together with Amendment 98K are each needed to maintain broadly the present application of the Acts mentioned. Each of these Acts applies in some way to trade unions, and with the re-definition of that term in this Bill it is necessary to make clear how the Acts will henceforth apply and whether to unregistered or registered organisations.
§ The Amendment retains the present practice of applying parts of the Road Haulage Wages Act 1938 and the Industrial Assurance and Friendly Societies Act 1948 to both registered and unregistered organisations. The Amendment to the Insurance Companies Act 1958 and the Amendment to the Companies Act 1967 together ensure that registered organisations of workers and employers, including those on the provisional register will continue to be able to undertake insurance business without having to have their activities regulated by the Insurance Companies Act. The associated repeals in these two Acts are set out in Amendments Nos. 99E and 101 to Schedule 9. The Amendments to Schedule 8 are designed to ensure that the re-definition of a trade union's objects in this Bill will have no significant effect on the types of insurance business in which trade unions and employers' associations are permitted to engage. I beg to move.
§ LORD DIAMOND
My Lords, I am grateful to the noble Lord. The only question I should like to ask him is that, inasmuch as his speech was exactly the same speech as I would have anticipated if these Amendments had appeared at the Committee stage instead of the Report stage, could he kindly explain what change in the Bill has necessitated, or what change in Government thinking has necessitated, the introduction of these provisions at this stage?
§ LORD BELSTEAD
My Lords, I do not think there is any change. I am consolidating what has been agreed—I know not with the agreement of noble Lords opposite—in Committee and at Report in our previous proceedings.
§ LORD DRUMALBYN moved Amendment No. 98F:
Page 167, column 2, leave out lines 10 to 13 and insert—
(" In section 1—
In section 2—
In section 3—
In section 4—
In section 5—
In section 6—
In section 9(1), for the words from"the amalgamating unions"to the end of the subsection there shall be substituted the following words—
In section 10(2), for the words"a trade union ", there shall be substituted the words"an organisation to which this Act applies ".
In Schedule 1, for the words"the trade union"and"the union ", wherever they occur, there shall be substituted the words"the organisation ".
In Schedule 2—
§ The noble Lord said: I beg to move the Amendment standing in my name. The effect of this Amendment is to apply the provisions of the Trade Union (Amalgamations) Act 1964 to organisations of workers and employers as defined in Clauses 61 and 63 of the Bill, and to transfer responsibility for the administration of the Act from the Registrar of Friendly Societies to the Registrar of Trade Unions and Employers' Associations. The Amendment incorporates and replaces the Amendment to Section 4 subsection (8) which is at present included in the Schedule. This is a consequential Amendment to the Act which follows from Clause 114 subsection (2) of the Bill. The changes look very formidable 599 in character but the purpose is very simple. I naturally asked whether it would have been possible to have expressed this in shorter language, but I am told that this is the most convenient way to do it for the future.
§ LORD DIAMOND
My Lords, I am grateful to the noble Lord. I assume he was speaking to 98F. It was not all that clear. As I have read these provisions I understand that what the Government have been good enough to do is to change their mind with regard to non-registered unions—and we are very grateful for any change of mind in that direction—and to apply the helpful provisions of the Act which permits mergers and amalgamations to organisations of workers as well as to trade unions.
I should like to thank him for that, and to say that in this case I therefore understand why this Amendment is brought in, namely, that when the Government started out they had a different policy in mind and, during the course of the debates, they have been persuaded to change it very very slightly. I take the opportunity of saying this because when large Amendments are introduced we are entitled to know why it is that they are introduced at the Report Stage. From a previous answer one might have thought that it was the deliberate policy of the Government to introduce a Bill that was incomplete and to maintain its incompleteness until one got to the Report Stage. I am sure the Government did not have that intention, and so I hope the noble Lord, when we come to the remaining Amendments, will be good enough to explain what changes in Government thinking during Report Stage have produced Amendments which the Government are seeking to produce. I hope I have made it clear. I merely got up to say,"Thank you ".
§ LORD DRUMALBYN
I am grateful for the noble Lord's thanks. They seemed to take several sentences but I am nonetheless grateful for his thanks. But may say quite frankly to the House that a Bill of this length and complexity, and the length of the Committee Stage, made us doubtful whether Amendments which were not obviously of a contentious nature ought to be poured into the Marshalled List at the Committee stage, and 600 for that reason we retained some Amendments until the Report stage. I see nothing whatsoever improper in that. We have to arrange the business of the House in a way which is tolerable to the House and I hope that this is tolerable. This is not a complicated Amendment and it is not a matter on which we have changed our minds.
Of course you can have amalgamations of organisations and workers, whether they are registered or not. Amalgamations may take place between registered organisations and unregistered organisations. If they are pure amalgamations they will have no doubt to rewrite their rules and apply for registration. If, on the other hand, there has been a takeover by a trade union of an organisation of workers, then the rules of the registered trade union will apply and no further action will be required. There is no mystery about this, but I thought I ought to make the position quite clear.
§ 8.51 p.m.
§ BARONESS WHITE
With great respect, my Lords, this seems rather curious Parliamentary doctrine. I am well aware that in this House, as opposed to another place, one can still make Amendments on Third Reading. It surprises me that the Government should say,"We did not put things down at the Committee stage because the Marshalled List was overcrowded and we thought we would leave them for Report." Is that entirely fair to your Lordships' House? Is that entirely fair to the Opposition? I am not pretending for a moment that this is, in substance, an Amendment to which we take exception. Now we have the Leader of the House with us perhaps we could have his judgment on the matter. It has been put to us that the Government deliberately kept back from the Marshalled List Amendments which they have always intended to make, and because they thought that the Committee stage Marshalled List was rather overcrowded they decided that they would keep the Amendments for the Report stage. Surely this is not the normal way in which one conducts legislation. The Opposition are entitled to know at the Committee stage that the Government are proposing to put down Amendments. Although we are not entirely deprived of our rights because of the procedure on 601 Third Reading, it might have been that although the Government supposed that this was not contentious we might have wished to probe further on some matter. I do not think we ought to let this pass without question.
§ LORD BEAUMONT OF WHITLEY
My Lords, may I speak further to that point? I have an extra point to which I hope the noble Earl will reply, and as he may not speak too often at this stage, even though he is the Leader of the House, I hope he will allow me to make it. The noble Lord, Lord Drumalbyn, gave us a good, courteous explanation of why these Amendments were not put down at Committee stage, and the noble Baroness answered that point; and I think that is right. What the noble Lord. Lord Drumalbyn did not tell us is why they were not put down at Committee stage in the other place, because there has not been any particular change in Government thinking on this matter. I submit that the only possible answer to this is the very true answer that an Irish plumber gave to my father when he complained that water was leaking into the dining room from pipes which the plumber had installed. When asked by my father, in a furious rage, why this had happened, the plumber replied."Sheer incompetence, yer Honour; sheer incompetence." I think that is the only answer the Government can give.
My Lords, the noble Baroness, Lady White, asked me a point, not on the question of competence or incompetence but relating to procedures in this House. I heard only the tail end of the discussion, but these particular Amendments have been down for something like a week, which is a not unreasonable period. They are on the Schedules to the Bill and they are completely uncontentious. I see nothing in that which is contrary to the procedure of your Lordships' House. I do not wish to be contentious at this late stage, but there have been periods during our discussions on this Bill where I have noticed procedures which were not in conformity with the traditions of your Lordships' House.
§ Amendment moved—
§ Page 167, line 13, at end insert—
|(" The Companies Act 1967 (1967 c. 81)||
In section 60(1), in paragraph (c) the words"or to trade unions"shall be omitted, and after paragraph (d) there shall be inserted the following paragraph:
§ Schedule 9 [Enactments Repealed]:
§ 8.57 p.m.
LORD DIAMOND moved Amendment No. 98D:
Page 167, leave out lines 25 and 26.
§ The noble Lord said: My Lords, this Amendment was put down at an earlier stage, when it tied up with an earlier Amendment which we moved and discussed, and we were hoping that the Government would welcome this Amendment. This deals with the Trade Union Act 1871 and with the related matter of tax treatment of provident funds. I do not know whether the noble Lord has anything further to say on that issue at this point of time. There was a very acceptable undertaking by the Government to give the matter full consideration. I am hopeful that some accommodation will be reached between now and Third Reading. If that were the case, would the position be that the Government would seek to make such adjustments in this Schedule as were necessary? If so, I do not think I need delay the House any further. But I do not want the Government unwittingly to allow a door to close against themselves at this stage if we have an opportunity now of keeping it open in case somebody wants to pass through it at a later stage.
§ LORD DRUMALBYN
My Lords, the noble Lord has moved this Amendment 603 with reference to one particular problem, but he will recognise that if it becomes possible to deal with that problem it will not necessarily be the case that it will be dealt with in this way. He will be equally well aware that it is not our policy that the Act of 1871 should remain on the Statute Book. It is our view that no part of the 1871 Act will still be relevant after this Bill takes effect. The noble Lord has made reference to the income tax aspect of this matter. That is a subject which we are considering, but I have nothing more to say about it this evening. I should like to make the position about the 1871 Act clear this Bill is the first comprehensive legislation in industrial relations since 1871—certainly in this century. The 1871 Act gave rise to a number of Acts; that was the parent Act. It is necessary to replace outdated and piecemeal legislation which has built up and which is no longer appropriate to modern conditions.
I must explain why we are leaving this out. It is because the Act of 1871 had two objects in particular: first, to relieve trade unions from certain criminal and civil liabilities arising from the application of the doctrine of restraint of trade. Clause 136 of the Bill ensures that all organisations of workers and employers will continue to enjoy this protection. The 1871 Act also established a system of registration for trade unions and this is completely replaced by the provisions in Part IV of the Bill. Its retention would create confusion because two systems of registration would be operating side by side, each imposing rather different requirements on similar organisations which are nevertheless defined in different terms. Moreover, these organisations could continue to enjoy the various existing benefits of registration, including in particular relief from taxation of their provident expenditure. We have already debated this subject and, as I said, we are considering it further.
Trade unions which continue to be registered under the new provisions in the Bill will continue to enjoy these tax advantages. Those unions which, for their own purposes, do not want to continue as registered organisations can still, 604 despite what the noble Lord said the other day, obtain broadly similar tax treatment of their provident funds if they are prepared to separate these from their other funds. The Government cannot accept that the registration provisions of the 1871 Act should be continued for this purpose alone. The 1871 Act deals at some length with the function and status of trade union trustees. Part IV of the Bill obviates the need for unions to rely on trustees to hold their property, since it provides for them to be given corporate status upon registration. Registered organisations will not, of course, be precluded from continuing to make use of trustees if they so wish, but the specific provisions of the 1871 Act which relate to them will no longer be necessary.
Other provisions of the 1871 Act which are replaced by various parts of the Bill are Section 5 concerning registration under the Companies Act and the Acts relating to friendly societies, and Sections 19 to 23 which deal with legal proceedings under the Act. This leaves Section 4, which provided that nothing in the 1871 Act would enable any court to entertain any legal proceeding instituted with the object of directly enforcing or recovering damages for the breach of certain agreements between, for the most part, members of a trade union. The intention of those provisions was that the internal and domestic agreements of trade unions should be excluded from the jurisdiction of the courts. For our part, we believe, as did the majority of the Donovan Commission—it is in paragraph 815 of their Report—that there is now no compelling reason why a contract entered into by organisations of workers and employers should be placed on a different footing from other contracts as regards enforceability. All this is overtaken by the present Bill, and we therefore do not intend that this section of the 1871 Act should be incorporated in the provisions of the Bill.
§ LORD POPPLEWELL
My Lords, the observations of the noble Lord indicate how this Bill in some ways goes back prior to the 1871 position, because now it will be possible for organisations of workers to be prosecuted and damages and compensation awarded in the way, indicated, which has not been the 605 position since the 1871 Act. This is a matter which I should like to place on record in these closing stages.
§ LORD DIAMOND
My Lords, I am grateful to the noble Lord for what he has said, for two particular reasons. First I want to thank him for repeating that the tax matter is still under consideration. As he has said that in the context of an Amendment to deal with this particular point he would not wish, at a later stage, to say that if we had only kept this door open we could have dealt with the matter in a certain way. It follows from what he has said that whatever decision is come to in regard to the tax matter there will have to be an appropriate adjustment to the Schedule during the Third Reading. The other thing I am grateful to him for saying is the matter referred to by my noble friend Lord Popplewell. I am grateful to him for pointing out that it is 100 years of liberties and freedoms which are being withdrawn by this Bill. We ought to get that very firmly on the record. If we have had to wait 100 years for this Bill, I only hope that we shall have to wait for at least another 100 years for another Bill like it. My only consolation lies in the fact that I trust and devoutly believe that if there is such another Bill in 100 years' time I shall not be called upon to speak for the Opposition on it. With your Lordships' permission, I seek leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 9.5 p.m.
§ LORD DRUMALBYN moved Amendment No. 98B:
§ Page 167, line 33, at end insert—
|(" 38 & 39 Vict. c. 90.||The Employers and Workmen Act 1875.||In section 3, the words from"(3) Where the court"onwards|
|In Section 7, the words from"The court may, if the person so summoned"onwards, Section 8.")|
§ The noble Lord said: My Lords, the purpose of this Amendment is to repeal those provisions of the 1875 Act which give discretionary power to order performance of a contract by manual workers (including apprentices), which are in conflict with the mandatory prohibition 606 in Clause 128 of the Bill against a court order for specific performance. The related Amendment to Clause 128 clarifies this position.
§ I think I should say a word or two about this Amendment because of the interest of the noble and learned Lord, Lord Gardiner, in it. At the Committee stage we agreed that the powers under the 1875 Act for a court to order performance of a contract are to some extent in conflict with the terms of Clause 128 of the Bill and we have already put that right. Moreover, in considering the Act as a whole we are bound, as I mentioned during Committee, by the longstanding and well-established convention that there should not be put into a repeals Schedule anything that is not consequential upon the terms of the Bill. There are provisions in the Act which have no relationship to the Bill before us. I am referring to the following Amendment which would leave out the whole clause. Perhaps we may discuss that at the same time. When this clause was raised previously I referred to Section 11 of the Act which prohibits in certain circumstances the setting up of deductions against wages due to women and young persons covered by the Factories Acts and represents an attempt to remedy an abuse of the Truck Acts, which as your Lordships know are still in force. Again, although Clause 112 of the Bill provides for the transfer to industrial tribunals by statutory order of the power to hear cases for recovery of damages for breach of contract, I should make it clear that until such transfer takes effect these cases will continue to be heard in the ordinary courts.
§ As the noble and learned Lords, Lord Gardiner and Lord Donovan, pointed out at Committee stage, the provisions of the Act have been rarely invoked for a number of years. However, the Donovan Commission, though noting that employers did not use the jurisdiction set up by the Act to sue strikers, adopted a cautious approach to the question of repeal. They recommended that most of the provisions of the Act might be repealed when all jurisdiction arising from the contract of employment was concentrated in industrial tribunals. We do not necessarily dissent from that view, but it clearly does not justify a total repeal of the Act at this point in time.607
§ We have therefore concluded that in Schedule 9 we should provide for the repeal of Section 3(3), the final sentence of Section 7, and Section 8 of the 1875 Act, dealing with the power to order specific performance of a contract. We do not feel that we should take away the power of a magistrates' court under Section 7 of the Act to order a guarantor to pay damages for a breach by an apprentice of his contract of apprenticeship. This is quite distinct from the enforcement of the performance of a contract.
§ My Lords, in relation to the remainder of the Act, where sections have not already been repealed by other enactments, we consider that the repeal of these sections might appropriately be a matter for consideration by the Law Commission with a view to inclusion in a future Statute Law Revision measure. As I indicated, Section 11 is one such measure.
§ I would suggest, my Lords, that this Amendment, together with the related Amendment No. 90A to Clause 128, goes as far as is possible at the present time to meet the proposals put forward by noble Lords opposite, with which, as I indicated in the Committee stage, we really have sympathy, and we are grateful to noble Lords for having drawn the point to our attention. In the circumstances, I hope that noble Lords will agree with this Amendment and will not press their Amendment No. 90A to abolish the whole Act. I beg to move.
§ 9.10 p.m.
§ LORD STOW HILL
My Lords, I have already expressed my noble and learned friend's apologies to the House for not being able to be here. As your Lordships know, he has taken a particular interest in the subject of the Employers and Workmen Act 1875. To save time, may I mention the point of the succeeding Amendment, No. 98A, which appears in his and in my name. As the noble Lord, Lord Drumalbyn, reminded us, he moved Amendment No. 90A because, as he said, if he did not move it there would be a clash between the 1875 Act and Clause 128 of this Bill. That sounds an interesting and adequate reason. Therefore, he asked the House to add to the Bill the following words: 608Any power conferred on a court by the Employers and Workmen Act 1875—The Amendment that we now have before us, moved by the noble Lord, Lord Drumalbyn, seeks to leave out certain words from that same ill-starred Act, the Employers and Workmen Act 1875. As my noble and learned friend pointed out (I have the Act beside me, and I may say that I have verified it), the words which the noble Lord now seeks to leave out from that Act are the very words, unless I am mistaken, which conferred the powers which the noble Lord, by his Amendment No. 98A, said were not to be exercisable. If that is right, may I put this question to the noble Lord: can he cite any precedent in any other Statute in which, when you read half way through the Statute you are told that the power to do X, Y, Z is not to be exercisable, and when you get to the end of the Statute you are told that the powers do not exist anyhow? I should be interested to know whether there is any Statute like that on the Statute Book. I have never come across it myself, and I should be very surprised if I did. If this is a Statute very much sui generis which possesses this wholly remarkable feature, perhaps we ought to place it on record and congratulate the Government on having conceived a rather exquisite new drafting system which will be the curiosity of future judges.
- (a) to accept security for the performance of a person's contract, or
- (b) having accepted such security, to order performance of the contract accordingly, shall cease to be exercisable.
Fortunately, learned judges are admirable, and the judicial bench has not infrequently rescued Parliament from its own language, and I daresay this will be another occasion when they are called upon to do so. But it is a little hard to add to the burdens which they already have to carry. Having said that, I cannot raise any great objection in principle to the removal of these words. I think it is a pity that Amendment No. 98A was moved, as has already been said.
If I may say one word on the Amendment of my noble friend, I could put the argument in a nutshell. When your Lordships listened to his speech you may well have thought that the 1875 Act, after 609 all the changes made in it, really emerged as little more than a piece of mangled nonsense; and perhaps it would have been a good idea, tradition or not tradition, to use this Repeals Schedule to get rid of that Act once and for all. It has very little value: if it has some value in relation to the Truck Acts that part of it could be preserved perfectly well and the rest of the Act got rid of. I therefore do not resist the noble Lord's Amendment and in due course when the next Amendment is called I will ask leave to withdraw it.
§ LORD DRUMALBYN
My Lords, I am grateful to the noble Lord for what he has said about not moving his next Amendment. I, too, have the Act here and quite honestly I do not think that the rather knockabout remarks of the noble and learned Lord, Lord Gardiner, were really justified by the facts. I see exactly what is left out. The Act may have been eroded by time, but I do not think it could be said to be mangled. What was taken out was taken out because of, among other things, considerations concerning the change in the constitutional position of Ireland; so he really is not justified in saying that it is mangled.
On other points raised by the noble and learned Lord, the declaratory Amendment introduced in Clause 128 seems to me to be quite right; and once that declaratory Amendment was introduced it was essential to have in the Schedule an Amendment to omit the relevant passages from this particular Act. I am sure that the noble and learned Lord, as a lawyer, would not disagree with the principle that you should not use the Schedule to an Act to abolish parts of an Act which have nothing to do with the Bill in question. This is really what he would have been asking us to do had he asked us to abolish the whole of the Act. I am glad that he is not going to ask us to do that, because I think it would have been almost improper.
§ LORD BELSTEAD
My Lords, I beg to move Amendment No. 99 which repeals the Act of 1883 which now applies only to trade unions and is rendered redundant by the new clause 610 which is to follow Clause 153. This is a consequential Amendment to Schedule 9 following the addition to the Bill. The Act to which I have referred is the Provident Nominations and Small Intestacies Act 1883.
§ Amendment moved—
§ Page 167, line 35, at end insert—
|(" 46 & 47 Vict. c. 47.||The Provident Nominations and Small Intestacies Act Act 1883.||The whole Act.")|
§ —(Lord Belstead.)
§ LORD BELSTEAD
My Lords, I beg to move Amendment No. 99B, the object of which is to relieve the Registrar of Friendly Societies of any responsibilities for trade unions under the Friendly Societies Act 1896 and is a necessary consequence of the transfer of those responsibilities to the new Register of Trade Unions and Employers' Associations.
§ Amendment moved—
§ Page 167, line 36, column 3, at end insert—
|(" and the words"trade union and ".|
|In section 4(1), the words"Scotland and ", in both places where they occur, and the word"respectively"where it first occurs.")|
§ —(Lord Belstead.)
§ 9.20 p.m.
§ LORD BELSTEAD moved Amendment No. 99C:
§ Page 167, line 40, column 3, leave out (" Section 1 ") and insert—
|(" In section 1, subsection (1), and in subsection (2) the words"the objects mentioned in section sixteen of the Trade Union Act Amendment Act 1876, namely ".")|
§ The noble Lord said: This Amendment is needed to avoid what I think your Lordships would regard as a serious gap 611 in the law which would have resulted had the whole of Section 1 of the Trade Union Act 1913 been repealed, as is at present proposed in this Schedule. Subsection (2) of Section 1 of the 1913 Act defines the term"statutory objects ", which occupies a key position in the present definition of a trade union. With the substitution of new definitions of"trade union"and"employers' association"in Clauses 61 and 62 of the Bill, the term"statutory objects"ceases to have any function in this context, and it would appear that both parts of Section 1 become redundant. However, that is not so. The concept of"statutory objects"is retained in that Part of the 1913 Act which is not to be repealed; namely, the sections dealing with restraints on the application of funds for certain political purposes.
§ Section 3(1) of the 1913 Act provides that union funds shall not be applied in furtherance of political objects unless the furtherance of those objects has been approved by a ballot of members and unless the union has rules which set up a separate political fund for the purpose. Section 3(3) of that Act says what are political objects for this purpose: they are familiar to some of your Lordships. The proviso in that section is, I think your Lordships will agree, vital to unions as a means of distinguishing between activities which, although political in nature, are essentially a part of the organisations' normal representative activities on behalf of members and not Party political activities.
§ There is one more point. Trade unions with political fund rules have tended to adopt the model rules published by the Registrar, which incorporate the 1913 Act's definition of"statutory objects ". Rather than have the Bill cause every union with such rules to revise them, this Amendment retains the present definition of"statutory objects"for the purposes of Section 3(3) of the 1913 Act, thus maintaining the existing position regarding what is or is not to be regarded as political expenditure to be met only out of the political fund.
§ With that explanation, I hope your Lordships may agree to this Amendment.612
§ LORD DRUMALBYN moved Amendment No. 99D:
§ Page 167, line 44, at end insert—
|(" 11 & 12 Geo. 6. c. 39.||The Industrial Assurance and Friendly Societies Act 1948.||In section 23(1), paragraph (d).")|
§ The noble Lord said: My Lords, with permission, I will speak to Amendments 99D, 99E and 101 together. These are all consequential Amendments arising from the redefinition of the term"trade union"in the Bill. Amendments Nos. 99D and 99E are a direct consequence of Amendment No. 98J to Schedule 8, and No. 101 follows from No. 99K.
§ LORD DRUMALBYN: My Lords, I beg to move Amendment No. 99E:
§ Amendment moved—
§ Page 168, line 14, at end insert—
|(" 6 & 7 Eliz. 2. c. 72.||The Insurance Companies Act 1958.||In section 1(5), the words"or to trade unions ".")|
§ —(Lord Drumalbyn.)
§ LORD DRUMALBYN
My Lords, Amendment No. 99A is a consequential Amendment necessitated by the redefinition in Schedule 8 of the term"The Registrar"as used in the Trade Union (Amalgamations) Act 1964. I beg to move.
Page 168, line 29, column 3, at end insert(" In section 7(1)(c) the words ' or by any Assistant registrar '. Section 8.")—(Lord Drumalbyn.)
§ Amendment moved—
§ Page 168, line 31, at end insert—
|(" 1965 c. 32.||The Administration of Estates (Small Payments) Act 1965.||In Schedule 1, Part I, and in Schedule 3, the entries relating to the Provident Nominations and Small Intestacies Act 1883.")|
§ —(Lord Drumalbyn.)613
§ LORD DRUMALBYN moved Amendment No. 101:
§ Page 168, line 35, at end insert—
|(" 1967 c. 81.||The Companies Act 1967.||In section 60(1)(c), the words"or to trade unions ".")|
§ The noble Lord said. My Lords, this is a consequential Amendment, but before I move it may I, first of all, pay tribute to the Opposition for the care with which they have examined this Bill and for the good temper with which we have carried on our discussions. Secondly, I should like to pay a very warm tribute to the strong support we have had from our own side. It would be appropriate for me to say here that many have doubted whether it was possible to take a Bill of this character through a House of this character; and the way in which Members have taken an interest in this Bill, albeit silent, very often—they have taken a real interest in this Bill—and have attended in the numbers they have throughout this period, is a very great tribute to the voluntary spirit. I ought also to say that we are much indebted to those who have looked after us while we were doing so, as regards both our bodily needs and the other services. We are extremely grateful to them all. My Lords, I beg to move.
§ LORD DIAMOND
My Lords, I am quite sure that all my noble friends on this side of the House would wish me to join in the appreciation of the noble Lord for the facilities which have been made available to us. I repeat what was said on an earlier occasion: we are grateful for the help we have had all round, and we envy again the noble Lord his riches in strong, silent support.