§ 3.19 p.m.
§ THE MINISTER WITHOUT PORTFOLIO (LORD DRUMALBYN)
My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Industrial Relations Bill, has consented to place Her interest, so far as it is concerned on behalf of the Crown, at the disposal of Parliament for the purposes of the Bill. My Lords, I beg to move that this Bill be now read a third time.
§ Moved, That the Bill be now read 3a.—(Lord Drumalbyn.)
§ On Question, Bill read 3a, with the Amendments.
§ Clause 5 [Rights of workers in respect of trade union membership and activities]:
LORD STOW HILL moved Amendment No. 1:
Page 4, line 31, after ("section") insert (", nor for the purposes of subsection (2)(b) of this section shall an employer or a person acting on behalf of an employer be regarded as discriminating against a worker,").
§ The noble Lord said: My Lords, I apologise to the House for coming back 857 on Third Reading to an Amendment the substance of which has been discussed previously. My excuse is that the Amendment discussed on Report stage was much wider in scope than the present one, which has been recast in order to try to meet a certain criticism made by the noble Lord, Lord Drumalbyn, of the earlier version. I revert to its because it deals with a matter which has occasioned considerable anxiety and which arises on Clause 5 of the Bill. Your Lordships will have been reminded, almost adnauseam, that that is a clause which gives certain rights to workers and which makes it an unfair industrial practice for an employer, among other things, to discriminate against a worker who seeks to assert his rights under that clause. One of those rights is the right not to belong to a union. The anxiety that has been expressed is that supposing an employer affords to members of a union certain advantages which he does not afford to workers in his employment who are not members of a union, it may be said against him that in so doing he is unfairly discriminating against the worker who is not a member of the union within the meaning of Clause 5(2)(b). As the Amendment was originally put before your Lordships on the Report stage it referred in broad terms to the employer affording facilities and advantages to the member worker which he did not afford to the non-member workers. The noble Lord voiced what I thought was a perfectly justified criticism of that language upon the basis that it was far too wide in scope. It might include financial advantages and a number of advantages which were clearly not intended to be dealt with by the Amendment.
§ LORD STOW HILL
My Lords, I am much obliged to the noble Lord; that is so. They both relate to the same topic and No. 1 paves the way to Amendment No. 2 I am grateful to the noble Lord for reminding me of that. I was saying that the criticism of the previous Amendment was that the language was much too wide, and I entirely accept that criticism as being wholly justified. Accordingly, those who sponsor this 858 Amendment have sought in the redraft drastically to limit the scope of the words so that they apply only to those advantages the existence of which has occasioned the anxiety to which I have referred. The advantages in question are advantages relating, for example, to the presentation of grievances. A worker who is a member of a union might, under the terms of a procedure agreement between his employer and the union, have the facility afforded to him of seeing first one authority in the employer's setup, then another and so on, and bringing his grievance to notice by authorised and regular procedure. It was thought that if a non-member worker did not have those advantages it might be said that the employer, in not affording those advantages to him, was discriminating against him.
Since the House discussed that Amendment I have had an extremely helpful and valuable letter from Ministers saying that they have gone into the matter and giving their reasons rather more fully. That letter would have satisfied me completely but for one sentence which leaves me in some doubt and the presence of which makes me feel that we are justified in having recourse to the matter once again. May I read the sentence? It is:The employer might, of course, be held to be discriminating against non-members if, having afforded opportunities for union members to raise their grievances, he provides no opportunity for the non-members to raise their grievances.That is precisely the anxiety which those who are associated with me have in mind. If the member worker is enabled to ventilate his grievance in a regular, authorised way and the non-member is not afforded precisely the same facilities, could it be asserted against the employer that he was discriminating against the non-member?
Unless I mistake the purport of that sentence, the Government still have some reservations about it, and, as I understand it, are saying that in that situation it could conceivably be said against the employer that he was practising discrimination which might involve him in being liable to a claim for compensation. That is why I revert to the matter. The change introduced in the present draft would drastically limit the scope of the words "facilities and advantages". It 859 limits them to the exercise of those rights which are described in a definition of a procedure agreement contained in what is now Clause 166(5) of the Bill. The advantages are limited strictly to procedures relating to dismissal, facilities for officials of trade unions, procedures relating to matters of discipline other than dismissal, and procedures relating to grievances. It is only in regard to advantages afforded by the employer in that context that the new Amendment seeks to raise this issue. It would serve greatly to allay the anxieties which I understand are widely felt if the Government were able to accede to an amendment on those lines or indeed, if possible, in those terms. As I have said, it would seem to me that something on those lines is necessary in order to allay the doubt which is raised by the sentence in the Minister's letter that I have read out. I beg to move.
§ 3.25 p.m.
§ LORD DRUMALBYN
My Lords, I am grateful to the noble Lord for giving me an opportunity to explain this matter to your Lordships. I am afraid it is rather a technical matter, so I hope your Lordships will forgive me if I go into a little detail here. I agree with the noble Lord in what he said. Perhaps I ought to say, by way of preface, that the noble Lord correctly referred to Clause 166 of the Bill, but it does happen to appear as Clause 162.
§ LORD STOW HILL
My Lords, I apologise. That is the Bill as amended on Report; No. 166 is the right reference.
§ LORD DRUMALBYN
My Lords, I agree with the noble Lord in his explanation. The particular objective of these Amendments is to ensure that the employer is not to be held to have discriminated unfairly against non-members because he has encouraged his employees to join a union which he recognises, or because he affords advantageous treatment to union members under the terms of a procedure agreement. I say straight away that there is. in broad terms, no difference of view between the Government and the noble Lord. Such reservations as we have stem from the fear that these Amendments may confuse the issue rather than clarify it, and that they may go wider than the noble and learned 860 Lord has himself intended. To take first Amendment No. 1: in the Government's view discrimination against a person must necessarily involve penalising him or depriving him of certain advantages. Mere encouragement of workers to join a union cannot be held to deprive non-members of any advantage, or to penalise them for non-membership. That is why the reference in the first line of subsection (3) is to subsection (2)(a)—to prevent or deter a worker from exercising any of the rights…"—and not to subsection (2)(b) which deals with penalties, discrimination and dismissals. I do not think it can be seriously thought that the act of encouragement could constitute discrimination, but if we add the Amendment proposed it could possibly create a presumption that the word"discrimination"is of very wide scope indeed. I believe, therefore, that your Lordships would be better advised to leave the Bill as it is in that respect.
The second of this pair of Amendments raises a rather different issue which I think I should go into a little more deeply. I recognise that the noble Lord, Lord Stow Hill—or it may well have been the noble Lord, Lord Delacourt-Smith—touched on this matter briefly on Report stage. He suggested that if an employer accords certain privileges to union members under a procedure agreement the employer may be engaging in unfair discrimination against non-members, and he argued that an employer should not run this risk. A procedure agreement is, after all, a collective agreement of a particular kind made between an organisation of workers and an employer or employers' organisation. A procedure agreement may provide for a particular course of action if there is a dispute about terms and conditions of employment, or if a worker is dismissed or disciplined or has a grievance. It may also establish the rights, responsibilities, privileges and facilities accorded to shop stewards and other officials of recognised unions.
So far as the shop stewards and officials are concerned, there is no problem. The shop steward or official enjoys the rights and privileges by virtue of his representational and negotiating 861 functions. To give him rights and facilities is not to discriminate between union members and non-union members; it is simply to give the union's representative the status and opportunities to carry out his union duties effectively. So there is no conceivable ground here for allegations of unfair industrial practice, and of course the draft Code of Industrial Relations Practice emphasises the importance of providing facilities for shop stewards.
But the Amendment goes further than this. It asks your Lordship to endorse the proposition that if any procedure agreement requires an employer to discriminate against non-members of a union in the way he deals with individual grievances, dismissals or disciplinary issues, he is not to be regarded as having engaged in an unfair practice. A procedure agreement might, for example, specify that non-members were to be dismissed before union members in cases of redundancy; or it might impose more disadvantageous disciplinary procedures on non-members. I do not think we would wish to countenance such agreements, and we should be countenancing them by giving them special protection from the provisions of Clause 5(2). The fact that the discrimination arose from a collective agreement cannot, in the Government's view, excuse it, and I do not think this is really what the noble Lord wants.
I believe there may be some confusion in this Amendment between discriminatory acts by the employer, on the one hand, and discrimination against non-members by a union, on the other. There is no reason why a procedure agreement should not be confined in its coverage to those employees in respect of whom the union agrees to act as representative in dealing with individual grievances and disputes. A union is entitled to refuse to provide services for workers who do not belong to it. It is entitled to enter into an agreement providing that a given procedure is to be followed by its officials where its members, but not other workers, are concerned in disputes including dismissals, grievances and disciplinary matters. But it is quite a different thing for employer and union to enter into discriminatory agreements which require the employer to impose penalties on non-members as a price, so to speak, for being non-members. In the first case, the union refuses to act for those who are not 862 members; in the second, the employer is required to act against non-members.
My Lords, the Amendment seems to us to blur this important distinction, and it is for that reason—because it goes very much further than the Government feel would be right—that I cannot advise your Lordships to accept these two Amendments which are under discussion. I hope I have made the matter clear to the satisfaction of noble Lords.
§ 3.36 p.m.
§ LORD DELACOURT-SMITH
My Lords, I hope that the noble Lord will seek the leave of the House to elaborate the matter a little further because, as my noble friend has said, it could well be a point of practical importance. From the discussion which has taken place on similar Amendments at earlier stages, from a study of the proceedings recorded in Hansard, from an examination of the letter which the noble Lord was kind enough to send to my noble friend and which my noble friend was kind enough to show to me, I am still uncertain whether the Government have fully appreciated the kind of situation which my noble friend and I are seeking to deal with in this Amendment. The noble Lord's explanation, very full though it was, and extremely clear, did not quite address itself to the point which comes to the forefront of my mind in looking at this Amendment.
Perhaps I may make the matter precise by taking an example. Let us assume that in a particular place of work it is accepted that a worker who is subjected to some particular kind of minor disciplinary penalty has a recognised opportunity to appeal to his foreman, or to someone relatively low down the chain of supervision. The trade union then makes an agreement which provides that in cases of this kind, in addition to the individual worker's accepted entitlement to appeal to the foreman, there may also be an appeal to (shall we say?) the works manager, and that this appeal shall normally be exercised, not by the individual worker but on his behalf by a shop steward or another trade union representative.
When such a procedure agreement is in force, a worker who has chosen to be a non-member of a union might express the view that this procedure agreement 863 was placing him in a disadvantageous position. Indeed, he could legitimately say that he was in a disadvantageous position, or he had placed himself in a disadvantageous position, because if he were in trouble for this particular reason he would not be able, via some trade union representative, to have an appeal made on his behalf to a higher level in the firm than he was entitled to approach as an individual worker. It would be a serious matter if it could be contended that such a situation amounted to discrimination.
If I understood the noble Lord aright, he was saying that it would not amount to discrimination, and that—this I think is the vital point—even without an Amendment of this type which has been moved by my noble friend, the Bill would make it clear that there was no discrimination, and that the individual worker who had chosen not to be a member of a trade union had no cause for complaint. I wonder whether the noble Lord would be kind enough to confirm whether that is a correct understanding, and whether the anxieties which have been behind the points which have been raised by my noble friend and I on this matter can be regarded as groundless.
§ LORD SLATER
My Lords, before the noble Lord the Minister speaks, may I refer to the position where a trade union is recognised and is responsible for negotiating with the employer in regard to a particular operation and one of its members steps out of line so that certain action must be taken. That man has the right of appeal to the union to take up the case with the management. A misdemeanor can be reported and working by the side of the union member is a non-member who is a party to that misdemeanor. One gathers from the Bill as presented by the Government that the management could adopt some form of leniency towards the individual member of the union who would be tied down by the formal agreement arrived at with the trade union, whereas such a code would not have been imposed on the other individual because he has no representative.
May I take it that what would happen would be that when an individual started in that industry the management would 864 inform him of the conditions laid down between the trade union and the people for whom it is responsible and need not inform the non-union member? If that should happen, and it could happen, there would be discrimination against the member of the trade union as compared with the non-unionist.
§ 3.42 p.m.
§ LORD DRUMALBYN
My Lords, I am happy to respond to the noble Lords who have spoken. The position in the case quoted by the noble Lord, Lord Delacourt-Smith, would quite clearly be as follows. He said that in the first place there would be a grievance and an appeal to the foreman. Then, where an agreement has been reached between the employer and the trade union, there would be a further appeal to the works manager and that appeal has to be handled by the shop steward. The noble Lord was quite right in thinking that because the shop steward is providing a service of the union that would not necessarily be made available to a non-member. That would not be considered discrimination.
It could equally be that there was an agreement where there was an appeal to a foreman and thereafter there would be an appeal to a works manager without the intervention of the shop steward. In that case no trade union service would be involved. In a case like that it would be a normal question of general procedure to handle the appeals. In other words, the employer, as a result of an agreement, would be adopting the means of processing his appeals, but without the service of the trade union. I think that is the position. If that is in any way wrong, I shall be happy to write to the noble Lord, but the main point is that there would be no discrimination involved if the non-member did not have available to him the services of the shop steward.
I think the noble Lord, Lord Slater, will find that the case he raised is covered in the clause dealing with the Contracts of Employment Act. This kind of information must be given to all employees and in particular they must know to whom to take grievances and what the procedure is. I hope that that is a satisfactory answer to the noble Lord.
§ LORD STOW HILL
My Lords, I rise merely in winding up the debate to 865 express very sincere thanks to the noble Lord, Lord Drumalbyn, who has obviously given the matter the very greatest consideration and has clearly studied the implications raised. I think that possibly the difference between him and those who sponsored this Amendment centres rather on the meaning of the word, "discriminate". I should have thought that that was a word which is not absolutely precise in its connotation. However, my Lords, I do not think it will be useful to prolong the discussion. Clearly, the Government have considered it very carefully and have come to a firm decision upon it. It raises a matter of principle, and ordinarily in these circumstances I would have asked the leave of the House to withdraw the Amendment. But having regard to the importance of the Amendment, I do not think I should do so.
§ On Question, Amendment negatived.
§ Clause 17 [Special provisions for approval of closed shop agreement]:
§ 3.47 p.m.
§ BARONESS WHITE moved Amendment No. 3:
Page 15, line 18, at end insert—
(" ( ) Where an approved closed shop agreement is for the time being in force, any one or more employers or any one or more employers' associations who or which is not or are not parties to such agreement may apply to the Industrial Court for an order that such employer or employers or employers' association or associations, as the case may be, be made a party or parties to such agreement, and the Industrial Court, if it is satisfied that the parties for the time being to such agreement consent to the applicant or applicants becoming parties to such agreement, shall order that such applicant or applicants shall forthwith be parties to such agreement.")
§ The noble Baroness said: My Lords, those of your Lordships who have faithfully attended the earlier Sittings on this Bill will appreciate that this is a fairly late instalment in a long-running serial. I hope very much that the noble Lord, the Minister, will regard this Amendment with a completely open mind. He appreciates, of course, that this presumably is our final effort, in this House at any rate, to reach some agreement with the Government on the problems of the theatrical and cinematograph industries. We have made many attempts in the course of this Bill to find some method whereby we would be satisfied 866 that the declared intention of the Government to meet the problems of the acting profession in particular could be brought to practical fruition. As your Lordships will realise, so far we have felt that the gesture made by the Government in Clause 17 in agreeing to the closed shop procedure for this industry will in certain circumstances be frustrated because we do not believe that the practical arrangements made in Schedule 1 can possibly be carried out in all cases.
§ No union has been more strenuous in the interests of its members than has Equity in its work on this Bill. It has been indefatigable in trying to meet what it regards as the needs and interests of its members, I hope that we shall shortly have some very distinguished support for this final effort to protect the theatrical profession in this country. The object of this Amendment is to try to bring to some sort of practical reality the intentions of Clause 17. As your Lordships may recall, at an earlier stage we moved an Amendment which would make it possible for the Industrial Court to make an order making the closed shop agreement, if it had already been reached, binding on all employers in the entertainment industry.
That was not acceptable to the Government and, frankly, I can appreciate their point of view because in reply to our proposal, the noble Lord, Lord Drumalbyn, said on May 13:
…it does not seem to me to make sense that a party which is not a party to an agreement should automatically become a party when that agreement comes into operation."—[OFFICIAL REPORT, col. 1334.]
§ We had thought that this might be one way of dealing with the problems of the industry, but the Government did not find it acceptable and therefore we have thought again. I must apologise to your Lordships' House for the late appearance of this Amendment on the Marshalled List, but I am sure it is no surprise to the Government that it should appear. In fact, we waited in the hope that the Government themselves might put down an Amendment in response to the letter dated July 8 which they received from Equity and with which I am sure the noble Lord is familiar. But nothing appeared on the Marshalled List, not only to our disappointment but to our surprise, because we had thought 867 that now at least we had reached something which the Government might properly accept, in full accord with their own principles.
§ What we are suggesting in this Amendment is that where there is an approved closed shop agreement, and where, therefore, the industry had been examined by the Court and by the Commission and it had been agreed that the conditions were satisfied, in those circumstances if an employer who is not a party to the agreement and is not a member of an organisation of employers which is a party to the agreement, nevertheless wishes to adhere to the agreement, and the union and the other members of the employers' organisations are agreeable that such an employer should adhere, then an order can be made making it possible for such an employer, in those circumstances, to signify that he wishes to adhere to the agreement, and that it should then take effect so far as his own enterprise is concerned.
§ In those circumstances the people concerned in his unit of production, whether in the theatre or in the film world, would not have to go through the very lengthy procedure which is set out so fully in Schedule 1 of this Bill. I will not describe all this to your Lordships because those who have been following this Bill will appreciate that, quite properly, if one is establishing a closed shop there is an elaborate procedure which has to be gone through. I may remind your Lordships that not only does this procedure include the preliminaries whereby a joint application has to be made, but the Industrial Court has to refer it to the Commission, and they have to be satisfied that not less than one-fifth of the workers concerned wish a ballot to be taken—if the Commission themselves feel that the general circumstances justify a ballot. Then there has to be an interval of not less than one month and not more than three months during which arrangements for the ballot can be made and the date notified, the ballot has to be taken and the proportion of the workers concerned who vote in favour has to be ascertained. It must be plain to everyone in your Lordships' House that such a procedure cannot be carried out in a hurry. It is inevitable that it must take time, however hard everybody along the line tries 868 to expedite matters. It is implicit in the circumstances and the conditions set out in Schedule 1 that it should take time. One month is one of the conditioning factors as a minimum period, and the other items in this lengthy but perfectly proper procedure will obviously take considerable time.
§ On previous occasions we have discussed conditions in this industry: how a company can be formed for one theatrical production or for one film, and not necessarily a long feature film; it may be a fairly short documentary film. This is common form in this industry. We have discussed the situation which can arise prior to Christmas, with small pantomime companies all over the country, and in the summer with summer shows at seaside resorts, and so on. In all these circumstances it seemed to us that we should try to work out a practical procedure whereby the intention of the Government in Clause 17 could be made to work, because the time factor is such that if every single enterprise in these circumstances has to go through the entire procedure from A to Z the intentions of Clause 17 will in many cases be frustrated. We feel sure that that is not the wish of the Government and is not the intention of your Lordships' House, which has approved Clause 17.
§ For that reason, therefore, we have suggested, in full accord with Equity, that where everybody wants the agreement to take effect, where there is no dispute, where there is no question on the employers' side or on the union side but where they are all in full accord, they should then be entitled to go to the Industrial Court and say,"This is the position. We, as the employers, with the full assent of the unions, wish to adhere to an existing agreement for a closed shop because, in our contention, the circumstances in which we are operating are those of an industry which has already been examined by the Industrial Court and by the Commission. We are satisfied on both sides that we come within the purview of the decision which has already been made to establish a closed shop, and we wish, therefore, to be allowed to sign on the dotted line. We are all in agreement. We are asking for it in circumstances where everybody has agreed and everyone voluntarily wishes to enter into the agreement and 869 for it to be made effective." If this Amendment were not carried the only thing which would debar them from carrying out the full procedure would be the time factor. It is to meet that factor that we are proposing this Amendment.
§ I hope very much that at the conclusion of this long-ranging discussion which we have had at almost every stage of the Bill the Government now appreciate that we are trying very hard indeed to find a practical way whereby the intentions of the Government may be fulfilled. We think we have now found something to which, on the Government's own principles, they cannot take exception. There is no question of compulsion from anyone. This would be only in circumstances where everyone was agreed, where they were all anxious to carry out the provisions of the closed shop agreement and where it was only the time factor which would make it impracticable for them to go seriatim through every single step set out in Schedule 1 to the Bill. I beg to move.
§ 3.58 p.m.
§ LORD OLIVIER
My Lords, I have the honour to crave the indulgence of your Lordships' House. During the maiden speech that follows I fear your Lordships may find grim cause to reflect upon the prescient genius of the introducer of this tenderest of courtesies, and if I fail to achieve it then I must beg to suggest to your Lordships that it would be most contrary to the chivalry for which your Lordships' House is so famous to withhold your gallantry and refuse to indulge a maiden of 64.
I stand before your Lordships the second Baron of my name. The first. incomparably much more deserving, virtuous, illustrious, and in service to his country richer than I can ever hope to be, was my uncle, twice Governor of Jamaica, K.C.M.G., friend to Bernard Shaw, the Webbs, and all the eminent Socialists of the day with whom he created the Fabian Society. He entered your Lordships' House the first Labour Peer—he seems to have started quite a thing. He served the Government in 1925 as Secretary for India, a title once representing one of the richest jewels in the Imperial Crown and which now sounds perhaps almost quaint to the retrenched ears whose lobes can only boast the holes 870 to show where once such lush gems hung.
But it is not on account of being my uncle's nephew that I am here, no matter what storybook feudal nostalgia might tempt me to allow you to think so. The fact of my presence can only find reason in what his enemies would describe as his greatest eccentricity, his friends as the only eccentricity of which our recent Prime Minister was ever culpable. For a time I resisted this honour, as I thought was proper and to be expected, I think, in a person of my calling; the breaking of ice in any sense being apt to cause hesitation in most of us. But it does not take all that multi-repeated persuasion, that seethingly passionate ardour to make even the coyest maiden of 64 to wonder what on earth she thinks it is she has got to lose. He, Mr. Wilson, said he wanted people like me to have a forum.
I believe I can detect among your Lordships a growing sense of uneasiness that your most kindly indulgence is about to become strained. I hope you will find any such apprehension to be unfounded. I should like to say how deeply grateful my fellow Equity members feel for the extraordinary generosity of your Lordships' attitude, the concern, trouble-taken thought and serious consideration with which your Lordships have deliberated upon our problems. Many days and many a late night's work of the business of your Lordships' House have been devoted to certain difficulties of our minority profession.
May I say on behalf of that profession that your tender care will be appreciated for time without end. In particular, will your Lordships allow me to mention in gratitude the right reverend Prelate, the Bishop of Durham; the noble Lord, Lord Drumalbyn; the noble and learned Lord, Lord Stow Hill; the noble Baroness, Lady Lee of Asheridge, whose loving and constant guardianship over the interests of our work has always been such an inspiration and such a comfort to us; the noble Lord, Lord Bernstein; the noble Earl, Lord Balfour; the noble Baroness, Lady White; the noble and learned Lord, Lord Gardiner; the noble and learned Lord the Lord Chancellor, for his kindly patience for our affairs; the noble Lord, Lord Beaumont of 871 Whitley; the noble Lord, Lord Archibald; the noble Earl, Lord Mansfield, to whom our profession would like to extend their warmest wishes that his recovery to health may be both speedy and lasting; the noble Lord, Lord Henley; the noble Lord, Lord Delacourt-Smith; the noble Lord, Lord Donaldson of Kingsbridge, and the noble Lord, Lord Davies of Leek. If I have made any glaring omissions I ask one more sip of indulgence.
The great problem which has been recognised is the essential necessity of the closed shop for the acting profession. I can personally vouch for this necessity. We quite appreciate that in order to make its maintenance possible, the Government have made what is to them a major concession in the terms of Clause 17 and Schedule 1. Inevitably this concession is in somewhat of a restricted form, so much so that those who attempt to work under it may with justice reckon that it may not achieve its object.
With regard to the so often referred to "ephemeral manager", once more we ask that some way may be found to make a closed shop un-erodable in a part of an industry in relation to which the Commission on Industrial Relations has certified that a"closed shop is necessary "—Schedule 1, Part V. Assuming that we may get an approved closed shop, there is no way of bringing this ephemeral manager inside it. If the several methods that have been suggested and discussed have been found unacceptable, then is there not perhaps an onus on the Government themselves to find a way or to outline a procedure which, as the noble Baroness, Lady White, has said, might work? What a pity if, having gone to such exhaustive lengths, as has been done in this closed shop Amendment, there should be found in the end no means to put them into practicable form or, as has been better put, "We would have a situation in practice where the Government would have willed the end but would have failed to provide the means".
I appreciate that I am asking for more than is expressed in the Amendment of the noble Baroness, Lady White, and if I am not misinterpreting—and if I am I humbly ask her pardon—I believe the noble Baroness herself would agree that its position in the landscape finds itself 872 uncomfortably and all too familiarly in a last ditch. It may be that this position is preferable to none at all but, by providing for easy entry for the willing while not arranging compulsory entry for the unwilling, the Government are only being asked to preach to the converted without strengthening or enriching the parish.
My Lords, I believe in Great Britain and in keeping her great under the Sovereign. My"great"is not rhetorical, it refers directly to the continuance of the family of England and Scotland, Wales and Northern Ireland, together with what relationships we can still muster among those peoples with whom, if we lose a relation, we gain a friend. I am proud to belong to this family. The trend of nationalistic feelings has now spread, we are given to understand, to Cornwall. Sometimes it seems to me that we shall be lucky if, when that superb building at present half erected at the foot of Waterloo Bridge on the South Bank finally achieves its sky-line, we shall dare to inscribe a legend more boastful than "The National Theatre of Surrey". Here my profession must own a debt of incalculable magnitude to the noble and chivalrous Viscount, Lord Chandos, and the noble Lord, Lord Cottesloe, together with most grateful acknowledgements to the G.L.C. for their tireless efforts in creating this new "London Pride".
I believe in the theatre; I believe in it as the first glamouriser of thought. It restores dramatic dynamics and their relationships to life size. I believe that in a great city, or even in small city or a village, a great theatre is the outward and visible sign of an inward and probable culture. I believe in the Common Market, in the Concorde, in Foulness and the Brighton Belle. I believe in any thing that will keep our domains, not wider still and wider, but higher still and higher in the expectancy and hope of quality and probity.
I humbly thank your Lordsips for your kind attention.
§ 4.10 p.m.
§ LORD DRUMALBYN
My Lords, we have indeed been privileged to hear a unique maiden speech which has delighted your Lordships and which puts me in an extremely difficult position to acknowledge it. Nevertheless, I find it a great honour for me to speak on behalf of 873 your Lordships to say how greatly we welcome the noble Lord here and how we have appreciated, in the very deepest sense, his speech. He told us of his uncle, the first Labour Peer. I am not sure that he is not the first actor Peer, unless perhaps we count the Earl of Beaconsfield as one. But, my Lords, we perhaps have some satisfaction on this side of the House that he has chosen to seat himself on the Cross Benches, rather than to identify himself with either side of the House to follow in his uncle's footsteps in that respect. The very fact that he has chosen to make his maiden speech on the subject of Equity does, of course, add very great weight to the consideration that we have been giving to this subject.
He has been most gracious and generous in acknowledging the work so many Peers have put in on this subject. My only melancholy duty, I regret to say, has so far been to say, "No" to the various propositions that have been put up. But we do recognise the efforts that Equity has made, and I agree wholeheartedly with the noble Baroness, Lady White, that no union could have been more strenuous in the interests of its members. I hope very much that we shall hear the noble Lord, Lord Olivier, very often in this House, to which he brings distinction and adds distinction, and those well-chosen and telling phrases have been uttered with that matchless gift of expression which I hope will delight us so often in the future.
My Lords, the noble Baroness, in moving this Amendment, explained its purpose with her customary clarity. It is of course to facilitate the extension of an existing closed shop agreement to an employer or employers' association not a party to the agreement but willing to subscribe to it and with whose application the parties are in accord. If I understood the noble Baroness correctly, she argued that some employers in an industry or sector where an approved agreement is in force might be quite prepared to operate an existing agreement but not willing to join, or possibly not able to join, the organisation of employers which was a party to the agreement. She also argued that it would often be an unduly cumbrous and time-consuming procedure for every employer 874 not a party to the original agreement to have to file a fresh application to the Court when the outcome of the Commission's investigation could be in little doubt. She pointed out that although the Amendment would not by any means give Equity what it had hoped to gain in your Lordships' House, or the full reassurance that it needed, it would at least make the operation of Clause 17 and Schedule 1 more manageable, and would help to extend an agreement quickly to all employers or employers' associations willing to be party to it. I must say that I appreciate very much the reasonable and constructive way in which the noble Baroness argued in favour of this Amendment. We would. I think, have excused a certain exasperation on her part, in view of the fact that she herself has been so persistent, and I may say effective, in pleading the case of Equity on successive occasions.
We have of course received many representations, particularly from officers, officials and members of Equity, and as the noble Baroness said, a letter was written to me, and we had an opportunity at that point of considering the purposes that Equity had in mind. We now have to consider an Amendment, with its particular terms, which brings about a rather different situation, and I am sorry to say that the Amendment, in our judgment, would have results that would be unacceptable to the Government. I am bound to add that, for reasons I shall explain, I do not see that it is esential in order to enable new employers in the theatre—or in shipping, for that matter—to subscribe to approved closed shop agreements.
Your Lordships will appreciate that we have to look very carefully at the wording of an Amendment of this kind, as well as at the purpose. As this one is phrased—and I hope I shall not be accused of being captious; I think" nitpicking "was the word used at one time—it would be open to any employer or employers' association to subscribe to and operate an approved closed shop agreement without the endorsement of the C.I.R., which is of course an essential element in the proposals in the Bill, provided only that the parties to the existing agreement were content with the application. I think I can most tellingly illustrate this by taking 875 a rather extreme example. A closed shop proposal covering the actors engaged by a single theatre manager is examined by the C.I.R. under the provisions of Schedule 1 and Clause 17, and the C.I.R. conclude that the conditions in Schedule 1 are satisfied. The agreement is therefore approved; and in the absence of a ballot challenging it, it is implemented.
Subsequently a dozen or more employers and employers' associations in the theatre, or the film or the television or holiday camp entertainment sectors, all wish to subscribe to the same agreement. The original parties have no objection—quite the contrary. As a result, a closed shop agreement covering a large part of the entertainments industry may be introduced without the C.I.R. being required to consider whether there is any justification for such a widespread closed shop. Possibly there is ample justification, on the basis of paragraph 5 of the Schedule, but one cannot be sure. This is an extreme case, and I am quite well aware that this is not in the mind of Equity at the present time. But what is equally disturbing for the Government—although I accept that this may not have been intended by the noble Baroness—is that as the Bill is now drafted the Amendment would have the result of permitting any union to bring pressure to bear upon an employer by industrial action to apply to become a party to an existing approved closed shop agreement in the way envisaged in the Amendment. While Clause 34(3)(d) makes it an unfair industrial practice to take strike action to coerce an employer to make an application under Schedule 1, it says nothing about an application under Clause 17, to which this Amendment relates.
There is yet another effect of the Amendment which I am sure was unintended. It would appear to take away from the workers covered by extended closed shop agreements, if I may so describe them, the right to challenge their introduction by petitioning for a ballot, and it is a nice question of interpretation whether such workers would be able to apply for a ballot to determine whether the extended closed shop agreement (which would not be an approved closed shop) should be continued in force. We think not.
876 My Lords, you may feel that these objections are mere technicalities. I assure you they are very much more than that. The fact is that this Amendment would, or could, destroy the fundamental pronciple of "approval" which is at the heart of the closed shop provisions in Clause 17 and Schedule 1. For that reason alone, I must strongly advise the House to reject the Amendment. In giving this advice I do not want to be negative or pessimistic. In the kind of circumstances described by the noble Lord who moved the Amendment it seems to me probable that there are two clear options, maybe three, open to, say, a theatre manager who is prepared to enter into a closed shop agreement; and your Lordships will note that it is a premise of the Amendment that the employer or association is willing to apply. First, the employer who wants to subscribe to an existing agreement has, I should guess, sufficient common interests with the parties to that agreement to make it likely that he could join the organisation of employers concerned. By so doing, the "outsider" employer could automatically and lawfully assume the obligations of all members of the group—and would, as a result, be bound to operate the closed shop agreement.
If, on the other hand, for whatever reason, an individual employer did not want to join the appropriate association, he could instead put in an application under Schedule 1. If his circumstances were broadly similar to that of employers party to an existing agreement, it is not improbable that the C.I.R. would decide—and decide quickly—that the new closed shop proposal ought to be approved without very much examination. He would just satisfy himself that it was within the terms of the approved closed shop agreement. There is, of course, also the time needed for an appeal, and, as the noble Baroness said, it can be from one to three months; but in a case like this, where there is an individual employer it could probably be within the minimum of one month.
It may be said that the applicants would not necessarily be eligible for membership. I think I should express my view, at any rate, that it is manifestly not in the interests of members of an organisation of employers that other employers in the 877 theatre should pay lower rates to their employees than the members do. What is plainly needed is that, before drawing up the approved closed shop agreement, both sides should overhaul their rules to make sure that they are flexible enough to accommodate appropriate employers who are not members at the time of the application to the agreement, whether because they are not in being at the moment of that application, or because they do not at that time want to belong to the employers' organisation. There will always be some employers who do not want to belong to an employer's organisation at all.
The Amendment also plainly contemplates that there will be some employers who either are not willing to apply to become parties to the agreement, or cannot be readily contacted, or indeed to whose application the parties may not agree. In all these cases it will be open to the union, of course, to bring such pressure to bear on them to conform to the agreed terms and conditions of employment as they do at present. The difference between the two situations, that envisaged by the provisions of the Bill and that which would result from the Amendment, does not seem to be very great, It certainly does not seem to be great enough to warrant acceptance of an Amendment which—I am not saying this in any critical way—appeared on the Order Paper only yesterday, and which has not had the full examination that such a provision should have before being incorporated in a Bill.
There is one other point that perhaps I ought to mention. The noble Baroness made a good deal of the time factor, especially in regard to the ephemeral employers to whom the noble Lord, Lord Olivier, also referred. He said there was no way of bringing the ephemeral employer inside. I would only say this, that it would still be open to the ephemeral employer and the union to enter quite voluntarily into an agency shop agreement, and this could quite easily incorporate very largely the terms of the Equity contract, to put it quite bluntly. So, my Lords, I fully appreciate the anxieties of your Lordships, and in particular of Equity. They are these, I think. First, not all organisations of employers will be willing to join in an application for a closed shop, and to the 878 extent that they are satisfied that Equity will be active to ensure that non-members of the organisations conform with the Equity contract they will be more likely to do so. Secondly, another anxiety is that there may be a tendency for employers who are members to give up their membership in order that they need not comply with the approved closed shop agreement, if indeed there is one made. I think it is generally agreed this is unlikely to happen all at once. It could happen over a period of years, and if it did I fully recognise that the effectiveness of the agreement, and indeed possibly the economics of the whole industry, could be undermined. We do not think this will happen. The theatre is going through a difficult period at present, but in the long run the theatrical world has the strongest interest in maintaining the highest standards of the British theatre.
My Lords, of course we could be wrong. I would only say that this Amendment would at best have only the most marginal effect. The Secretary of State will be watching the situation, and if we prove to be wrong, if approved closed shop agreements do not materialise, and if there proves to be a damaging erosion of the membership, the Secretary of State has undertaken that he will then consider what are the appropriate steps to remedy the situation, It is impossible to foresee exactly what those appropriate steps would be. Nobody can say, my Lords—and the noble Baroness was good enough not to suggest—that the Government have failed to give this matter the most careful consideration. Nobody can fairly say that the Government have been obdurate or have refused to meet Equity's case in any way. Quite the contrary. A new clause and a new Schedule have been added to the Bill, especially designed to meet the case of Equity and the theatre. I do not blame Equity in any way for having doubts about the efficacy of the provision. I do not criticise the noble Lords for trying to push the Government further. What I do say is that the Government believe that the provisions they have introduced to meet Equity's case, and the provisions of the Bill as a whole, should prove adequate, and the Government have undertaken that if they prove not to be so they will consider what further action is needed. My Lords, if hopes are 879 dupes, fears may be liars. I would ask the House not to accept the Amendment at this stage.
§ 4.30 p.m.
§ BARONESS LEE OF ASHERIDGE
My Lords, after the eloquence of the noble Lord, Lord Olivier, the extreme courtesy and reasonableness of the Amendment, and the manner in which that Amendment was moved by my noble friend Lady White, I do not suffer from the illusion that a few blunt words from me are going to alter the Government's decision. Nevertheless, I crave the indulgence of your Lordships' House to utter those few blunt words because I want no-one on the Government Benches—and I am glad to see that the custodian for the Arts, the Paymaster General, is in his place—to be in any doubt about what they are doing.
We have said in previous debates in this House that this is a very special industry. I do not know any other industry in which gifted and creative men and women deliberately seek a vocation in which they know that they are going to be unemployed as often, and frequently more often, as they are employed. I do not know of any other vocation in which there are so many willing to serve for the most modest rewards, knowing that the top prizes are high and glittering but they are not many. It is this special industry which has come to your Lordships' House, and it is asking for the minimum protection of the closed shop.
As the noble Lord, Lord Olivier, said in his so eloquent speech, with his lifelong devotion to the theatre, his minute and intimate knowledge of its problems, and his care for the poorest and weakest members of the profession as well as the glittering stars at the top, what the Government are doing is agreeing with the ends but refusing to allow the means. What they are doing with this industry is like sending a gallant seaman out to sea in a ship which they know is leaking. My noble friend Lady White did not even ask them to stop up all the leaks. We cannot be more reasonable than that. As my noble friend said in moving this Amendment, we were trusting to the common sense of the Government, the decency of the Government, and the unanswerable case that has been made to anyone who 880 knows anything at all about the life of the theatre and the problems of theatre people.
We ought not to have had to introduce this Amendment at this late stage, but it has been introduced, and introduced in the mildest terms. What the Government are saying to them—and they will not be forgiven by anyone who loves this great industry and who respects the great creative talent of the people who serve it—is, "Off you go on your hazardous journeys. You decide to go out to seas that are often stormy and unfriendly; you are taking every kind of risk with your private lives; you get no security, and we, the Government of the day, when asked for this most modest, most reasonable Amendment, are saying to you, 'Off you go with your boat leaking'".
What is the use of saying that those employers who want to agree will agree? That is not who we are concerned with. It has been spelt out in minute detail; all the circumstances in which the willing employer would find it impossible to go through all the performance that is necessary to come within the letter of the law. The Government are really saying to some of our most gifted people—after hearing the noble Lord, Lord Olivier, one of the greatest stars in the theatre world—"Go to sea. Leave the leaks unplugged. We don't care a damn whether you sink or swim".
THE EARL OF BALFOUR
My Lords, I have listened with very great interest to the maiden speech of the noble Lord, Lord Olivier. In rising to speak on this Amendment, I should like to say how much I enjoyed listening to him. I rise with no axe to grind one way or the other; I am interested only in the actual wording of the Amendment, as I have tried to be with every Amendment of the Bill.
We are here dealing with closed shops. One of the finest groups of men I ever met were the stevedores of the London Docks. They loaded the ships beautifully; that was their sole duty. They were a very small closed shop union of about 450 men. I am going back to the days when I was at sea, which I left in 1954. The stevedores of London were just a small branch of the loading and discharging of ships, which extended to 881 the dockers and many others. From what I can gather of this Amendment, the employers could have grouped together and extended that closed shop to cover the whole of London Docks without the stevedores themselves being able to do anything about it.
Let us consider one other example, that of the Border counties of Scotland. Supposing all those Border counties farmed themselves into a closed shop with the teachers in all the schools in those counties accepting just one of the eight teacher unions that exist in the United Kingdom. So far as I can gather, with this Amendment they could, through the Association of County Councils of Scotland, bring in all the other teachers of the whole of Scotland into one union.
I must admit that I know very little about Equity, but I thought Equity was a union looking after the interests of the employees. This Amendment seems to refer only to the employer, and seems to give the employer power that is not given to the employees. Taking other industries, I feel that this could give a group of employers powers that might be quite disastrous to some unions, particularly when unions compete with each other, which can happen. That is why I must support my noble friend Lord Drumalbyn, and say that I do not think that this Amendment should be accepted.
May I say, as a final remark, that I was very interested in the speech of the noble Baroness, Lady White, the maiden speech of the noble Lord, Lord Olivier, and the many other speeches made on behalf of Equity. May I ask, as a very junior Member of your Lordships' House, whether, with all the work they have put into it, they could introduce a Private Members' Bill laying down the conditions of employment in the acting profession?
§ LORD STRANGE
My Lords, I did not intend to speak, but I was very interested in the remarks of the noble Earl, Lord Balfour. I do not know whether he really listened to the brilliant speech made by the noble Lord, Lord Olivier. I do not know whether he realises what a peculiar profession the theatrical profession is, and also the times that it is going through. I do not wish to stand up and speak; I merely wish to 882 say that I think we should support this Amendment.
§ 4.38 p.m.
§ BARONESS WHITE
My Lords, we are most grateful for the support of the noble Lord. I should like, if I may from this Box, most respectfully to congratulate the noble Lord, Lord Olivier, on his maiden speech, which brought such delight and inspiration to us all. I only wish that his first speech in your Lordships' House had perhaps been a better essay in persuasion than it proved to be, because I fear that, even after such eloquence, the noble Lord, Lord Drumalbyn, has still not been moved in the direction which frankly we really had hoped he would be.
The noble Lord has made various criticisms of the Amendment which appears on the Marshall List of a more or less technical nature. I would remind your Lordships' House that with the programme of Government business being what it is, we have not had a very long interval between the end of one of the lengthiest Committee and Report stages in this House and Third Reading. There may well be defects in the drafting of this Amendment, but even at this stage they are not without remedy. It is perfectly possible for the Government, if they so wish, when Amendments are sent to another place, to insert or delete any expression which may be necessary to bring this Amendment into better accord with the Government's view of how it might conceivably work. For example, if the Government are concerned about there being some doubt as to the possibility of holding a ballot to terminate on the ground that the agreement would not be approved under the Bill, it would not be impossible to amend the Amendment in that sense.
It is true that the Amendment refers to the Industrial Court and not to the Commission, but it is not impossible to make reference to the Commission. It is suggested that the possible unfair industrial practice referred to in Clause 33 might not be applicable if the Amendment were to be accepted, but it is not impossible to amend it in that sense. To all those objections to the drafting of the Amendment the remedy lies in the hands of the Government themselves. It is by no means impossible, if they were willing to do so, to put this Amendment into 883 shape and take account of other clauses in the Bill, and we should certainly raise no objection to the three matters to which the noble Lord referred, if the Government wished to amend our Amendment. We should be extremely grateful to them if they do so. After all, they have the resources of the Parliamentary draftsmen.
Although my noble friend Lord Stow Hill has remained up to the early hours morning after morning drafting Amendments to this Bill, doing a most remarkable job, to which I am happy to pay tribute, it is not the same as having an entire staff of Parliamentary draftsmen at our disposal. If the will was there, there would be no insuperable difficulty about this Amendment but, as my noble friend Lady Lee of Asheridge made clear, the will is plainly not there and this is what we find so disappointing. The noble Lord said that he had not been obdurate. I have tried not to be exasperated up to now, because I have had hopes of persuading even those persisting in folly, as I believe the Government are on this matter. But it is difficult not to let a note of exasperation creep into one's voice.
Let me take the objections in reverse order. It is said that the employer can have an agency shop. What has all this argument been about? Has it not been because the Secretary for Employment himself agreed that in the circumstances of the entertainment industry and of other industries, especially the seafaring industry, the agency shop was not appropriate? Then it is said that it would be open to an employer who cannot or will not join an organisation to go through all the procedure of Schedule 1. I have already clearly pointed out that it is because Schedule 1 in many instances is not practical in the circumstances of the entertainment industry that we have put down this Amendment. This is what
§ we have been struggling for. The noble Lord suggests that the Government's intention expressed in Clause 17 cannot be carried out in a number of cases; that it would be frustrated, and, finally, that the employer should join his appropriate organisation and the organisation should change its rules, because at the moment any Tom, Dick or Harry can join, and do so"double quick ". It is even suggested that Equity could pressurise the employer to join the employers' organisation. That seems to be an astonishing conception. I am sorry if I misunderstood the noble Lord.
§ LORD DRUMALBYN
No, my Lords, the pressure is to conform with Equity rules, not to join the employers' association.
§ BARONESS WHITE
My Lords, conforming with Equity rules is one thing, but the closed shop is another. If a union were permitted to exert pressure on the employer, then we should not need to have all this legislation, because it is an unfair industrial practice to put pressure on an employer. I should have thought that that was a dangerous doctrine to preach from the Government Front Bench. I am sorry we should take up your Lordships' time. The position the noble Lord has contemplated may perchance be wrong and the great theatre of this country may fall on evil times; then, if by chance he and his right honourable friends were still in office, they would endeavour to secure some place for legislation to put the matter right, with all the delay which we know that would take. I can only ask your Lordships to support the Amendment.
§ 4.47 p.m.
§ On Question, Whether the said Amendment (No. 3) shall be agreed to?
§ Their Lordships divided:—
§ Contents, 86; Not-Contents, 102.885
|Addison, V.||Blyton, L.||Cooper of Stockton Heath, L.|
|Airedale, L.||Brockway, L.||Crook, L.|
|Amherst, E.||Buckinghamshire, E.||Davies of Leek, L.|
|Archibald, L.||Burntwood, L.||Delacourt-Smith, L.|
|Ardwick, L.||Burton of Coventry, Bs.||Diamond, L.|
|Beaumont of Whitley, L.||Byers, L.||Donaldson of Kingsbridge, L.|
|Bernstein, L.||Caradon, L.||Douglass of Cleveland, L.|
|Beswick, L.||Champion, L.||Faringdon, L.|
|Birk, Bs.||Chorley, L.||Fiske, L.|
|Blackburn, L.Bp.||Collison, L.||Foot, L.|
|Gaitskell, Bs.||Moyle, L.||Shepherd, L.|
|Gardiner, L.||Noel-Buxton, L.||Silkin, L.|
|Garnsworthy, L.||Nunburnholme, L.||Slater, L.|
|George-Brown, L.||Olivier, L.||Soper, L.|
|Granville of Eye, L.||Pargiter, L.||Sorensen, L.|
|Greenwood of Rossendale, L.||Phillips, Bs. [Teller.]||Stocks, Bs.|
|Henley, L.||Platt, L.||Stonham, L.|
|Hilton of Upton, L.||Popplewell, L.||Stow Hill, L.|
|Hughes, L.||Reay, L.||Strabolgi, L. [Teller.]|
|Jacques, L.||Redcliffe-Maud, L.||Strange, L.|
|Janner, L.||Ritchie-Calder, L.||Summerskill, Bs.|
|Kennet, L.||Robertson of Oakridge, L.||Tanlaw, L.|
|Leatherland, L.||Royle, L.||Taylor of Mansfield, L.|
|Leathers, V.||Sainsbury, L.||Wade, L.|
|Lee of Asheridge, Bs.||St. Davids, V.||Wells-Pestell, L.|
|Lindgren, L.||Seear, Bs.||White, Bs.|
|Llewelyn-Davies of Hastoe, Bs.||Segal, L.||Wootton of Abinger, Bs.|
|McLeavy, L.||Shackleton, L.||Wynne-Jones, L.|
|Aberdare, L.||Ferrers, E.||Mowbray and Stourton, L. [Teller.]|
|Ailwyn, L.||Ferrier, L.|
|Albemarle, E.||Fraser of Lonsdale, L.||Napier and Ettrick, L.|
|Allerton, L.||Gage, V.||Northchurch, Bs.|
|Balfour, E.||Glendevon, L.||Nugent of Guildford, L.|
|Balfour of Inchrye, L.||Goschen, V. [Teller.]||Oakshott, L.|
|Barnby, L.||Grenfell, L.||O'Neill of the Maine, L.|
|Beauchamp, E.||Gridley, L.||Poltimore, L.|
|Belhaven and Stenton, L.||Grimston of Westbury, L.||Rankeillour, L.|
|Berkeley, Bs.||Hailes, L.||Rothermere, V.|
|Blackford, L.||Hailsham of St. Marylebone, L. (L. Chancellor.)||St. Aldwyn, E.|
|Bledisloe, V.||St. Just, L.|
|Brock, L.||Hankey, L.||St. Oswald, L.|
|Brooke of Cumnor, L.||Hanworth, V.||Salisbury, M.|
|Brooke of Ystradfellte, Bs.||Harris, L.||Sandford, L.|
|Burton, L.||Harvey of Prestbury, L.||Sandys, L.|
|Carnock, L.||Hatherton, L.||Savile, L.|
|Colville of Culross, V.||Hawke, L.||Sempill, Ly.|
|Cork and Orrery, E.||Hylton-Foster, Bs.||Sherfield, L.|
|Courtown, E.||Jellicoe, E. (L. Privy Seal.)||Sinclair of Cleeve, L.|
|Craigavon, V.||Kemsley, V.||Stonehaven, V.|
|Cranbrook, E.||Kinnoull, E.||Strang, L.|
|Crathorne, L.||Latymer, L.||Strange of Knokin, Bs.|
|Croft, L.||Long, V.||Strathclyde, L.|
|Cromartie, E.||Lothian, M.||Swinton, E.|
|Daventry, V.||Lucas of Chilworth, L.||Templemore, L.|
|Davidson, V.||MacAndrew, L.||Tenby, V.|
|Denham, L.||McFadzean, L.||Thorneycroft, L.|
|Derwent, L.||Mar and Kellie, E.||Trefgarne, L.|
|Drumalbyn, L.||Margadale, L.||Tweedsmuir, L.|
|Dundonald, E.||Massereene and Ferrard, V.||Tweedsmuir of Belhelvie, Bs.|
|Ebbisham, L.||Meston, L.||Windlesham, L.|
|Effingham, E.||Milverton, L.||Wolverton, L.|
|Elliot of Harwood, Bs.||Monck, V.||Young, Bs.|
|Emmet of Amberley, Bs.||Morrison, L.|
Resolved in the negative, and Amendment disagreed to accordingly.
§ Clause 34 [Presumptions relating to collective agreements]:
§ 4.54 p.m.
§ LORD DIAMOND moved Amendment No. 4:
Page 27, line 23, at end insert—
(" ( ) is entered into for a period of not less than two years, and ")
§ The noble Lord said: My Lords, I beg to move Amendment No. 4, and I 886 hope it will be convenient for this Amendment and the following four Amendments to be discussed together—that is to say, all the Amendments dealing with Clauses 34 and 35—as they are an attempt to provide the Government with three alternative ways of dealing with an issue which has bothered many of your Lordships, and is still bothering us. Perhaps I may refer shortly to the history of the matter. It relates to the clause dealing with collective bargaining, and to the presumption 887 expressed in that clause that if an agreement does not provide to the contrary, then it is intended to be legally enforceable.
A number of your Lordships took part in the debates on this issue, notably the noble Lord, Lord Tangley, who helped us greatly with his intervention. On the Committee stage, on May 17, at column 114, the noble Lord summed up his view of the present clause by saying:
I suggest that at present the clause is quite nonsensical, has no meaning and would be utterly unenforceable.
Those are fairly strong words for a noble Lord who sits on the Cross Benches, and who was of course one of the members of the Donovan Commission.
The noble and learned Lord who sits on the Woolsack helped us with his view of the matter in the course of the same debate, at columns 124 and 125. I think I need only read the second passage, where the noble and learned Lord said:
I therefore apply myself to the problem, which way do we want the balance to tilt? The argument for tilting the balance in the way we have tilted it"—
that is, the presumption of enforceability, or the opposite assumption—
is that we want the parties to any negotiation in future—as I have said, this is purely a matter of a speculative nature—to ask themselves whether there are advantages in legal enforceability or not. We want them to ask themselves the question, and they can answer it either way. We have not laid down in which way they should answer it, but we want them to ask it.
Well, my Lords, with respect, I think the noble and learned Lord was right in saying, as he said somewhere else in that same speech, that there was a measure of agreement between us about what the issue was.
What I am going to put to your Lordships is that the present position, which was described in such scathing terms by the noble Lord, Lord Tangley, could be improved, not indeed satisfactorily from our point of view, nor indeed anything like so completely as previous Amendments and previous stages of the Bill have suggested, but nevertheless to a small degree; and as we are at the final stage of the Bill, a small improvement is an acceptable improvement. The noble and learned Lord, Lord Donovan, participated in our debates on this issue, at a
different stage, but on this same problem of enforceability. At column 843 on July 6 (and I hope that I have your Lordships' indulgence to read out two short paragraphs) the noble and learned Lord said:
My Lords, the Royal Commission spent many hours debating this problem,"—
that is to say, the problem of enforceability—
and in the end we all came to the conclusion that at the present time the legal enforceability of collective agreements, so far as it concerns a real contribution to good industrial relations, is a myth. If you take the substantive agreement which lays down hours of work, pay, holidays and so on, legal enforceability adds nothing unless you make the agreement run for some appreciable length of time. Otherwise, even if the agreement is legally enforceable, it can be ended by appropriate notice by one side or the other, which as a rule will be of shorter duration than the time taken at present to negotiate a new one.
Leaving out part of the following paragraph, the noble and learned Lord concluded by saying:
One has said this so often that I am not going to repeat it, except to say that, in general, legal enforceability is something that unnecessarily diverts attention from the real problems which this Bill has to solve, and more particularly when, at the same time that legal enforceability is made a presumption, the Bill almost goes out of its way to show how easily this provision can be avoided.
So we have different expressions of learned opinion, both coming to the conclusion that the clause in its present form is very unsatisfactory indeed, produces little benefit, and can so easily be avoided.
§ It is with those points in mind that I now ask your Lordships to be good enough to turn your attention to the question posed by the noble and learned Lord who sits on the Woolsack as to which way we should tilt the balance. What we are all seeking is that agreement should be reached, and reached speedily, and for that purpose a certain flexibility should be achieved. We are all seeking that the agreement should be reached in such a way that the bargain is likely to stick; and bargains are most likely to stick if both sides are voluntarily involved and if there is a good relationship between them, together with a sense of occasion and of obligation. The present position is an extremely unsatisfactory one; it is one under which the Bill seeks to stand the law on its head by saying, as it does 889 in subsection 1 of this clause, that every collective agreement which does not contain a provision which states that the agreement is intended not to be legally enforceable shall be conclusively presumed to be intended by the parties to it to be a legally enforceable contract. That is the present position and I am suggesting that there are no arguments in support of it.
§ There is no need to have that situation, and the noble and learned Lords who have contributed to our debate have said so in language much stronger than mine, from positions much more authoritative and from experience much greater. So I am hoping that the Government will be able to accept one of three changes embodied in the Amendments which I am asking your Lordships to discuss at the moment and which would help towards reaching a situation which, although it would not be wholly acceptable, would represent some minor improvement.
§ I am very anxious indeed, as I hope your Lordships are, to prevent a situation arising when automatically over every collective agreement the parties will immediately say,"We had better be careful: if we do not say it is not going to be enforceable it will be. Let us make a practice on every occasion of saying. ' This is not an enforceable agreement '." That situation will certainly develop. It is the automatic protection which develops, just as when anybody wishes to buy a house he always starts off by saying"Subject to contract, I will offer you so much ", because everybody knows that those words will cover him completely. It is a simple shorthand, and everybody will seek to protect himself in this way. However, if that were the only damage I should not mind so much: the real damage is that everybody will say, once an agreement is entered into,"Don't worry; we have said that it is not enforceable. Therefore there is no compulsion upon us to regard it as a bargain which will stick." It will demoralise the participants of that agreement.
My Lords, I am anxious to avoid that, and I suggest three alternative approaches. The first one would be to amend subsection (1) to read like this, omitting some of the words:
Every collective agreement which—
That is common sense, and that is the normal attitude of the law on these matters. But I am not suggesting that we should alter subsection (2). That is the compromise proposal I have put to your Lordships and the Government. Subsection (2) says that where a collective agreement is made in writing and states that a part of the agreement is intended not to be legally enforceable, the agreement, with the exception of that part, shall be conclusively presumed to be legally enforceable. I think that that is a much more sensible paragraph—or perhaps I should say that it is a much less senseless paragraph than the first. There is something to be said for the point of view—I do not like it, but at this stage of the Bill we are not in a position to choose what we like—that if you have an agreement in writing which states that part of it is not to be legally enforceable then it is a reasonable presumption that the rest of it is intended to be legally enforceable; otherwise why would the parties take the trouble to say,"Of these ten paragraphs, paragraphs 2, 3 and 4 are not legally enforceable "? They say that because the presumption is that they intend the other paragraphs to be legally enforceable. So it is not irrational and it would be possible to leave subsection (2) as it stands and to alter subsection (1) as I have suggested. It would follow that in Clause 35 there should be a similar alteration as regards the presumption.
§ That, I suggest to your Lordships' House, would be a great improvement on the present situation, which has been condemned so roundly by noble and learned Lords sitting on the Cross Benches. That position would be achieved if your Lordships were good enough to accept Amendments 5, 6, 7 and 8. I always like to provide the Government at this stage with a complete choice, so all they need to say is which alternative they would find acceptable and we will move or not move Amendments accordingly.
A position less satisfactory than that, but still just tenable, would arise if the alteration to Clause 35 were not made.
Clause 35 refers to decisions of joint negotiating bodies, and if the Government do not wish to alter that clause, so that it will be left that joint negotiating bodies can make decisions which, if they are not expressed as legally enforceable, shall be presumed to be legally enforceable, it will just be tenable. It is distinguishable from what I have previously said, on the grounds that first of all it is a decision sand not necessarily a whole agreement (it would probably be a whole agreement, but not invariably) but, more importantly, the body involved is a joint negotiating body which we assume would have legal advice and would be capable of looking after itself; therefore it would not necessarily rush immediately into this defensive position of saying automatically,"Let us start off by agreeing, as a matter of protection, that the agreement, no matter what it contains, is not legally enforceable." So that is the second alternative, namely, altering Clause 34, subsection (1) but leaving the rest unaltered; and that could be achieved by accepting Amendments 5 and 6 only. The third possibility is to adopt Amendment No. 4 which would mean leaving the presumption as it is in the Bill, both for collective agreements in Clause 34 and for decisions by joint negotiating bodies in Clause 35, but taking special note of what the noble and learned Lord, Lord Donovan, said, which I will, with permission, repeat:
If you take the substantive agreement which lays down hours of work, pay, holidays and so on, legal enforceability adds nothing unless you make the agreement run for some appreciable length of time."—[OFFICIAL REPORT, 6/7/71, c. 843.]
As we are searching for any improvement, however small, in the Bill at this stage, it seems to me that the point which Lord Donovan was making was very valid indeed.
§ LORD DONOVAN
My Lords, I am sure that the noble Lord will not mind my saying that when I said,"Unless you make the agreement last for two years"I was not thinking of agreements entered into voluntarily for that period, because very few are: I was thinking of an agreement made by law to last for two years. That, coupled with legal enforceability, I said, would make a significant contribution to industrial peace.
§ LORD DIAMOND
My Lords, I am grateful to the noble and learned Lord for his explanation. May I make it clear that the noble and learned Lord did not at this point refer to two years: he said,"run for some appreciable length of time ".
§ LORD DIAMOND
My Lords, I had overlooked that. If I may be permitted to say so, it is strange how certain minds think alike; I fixed on two years because I was trying to interpret what the noble and learned Lord, Lord Donovan, was suggesting in this one column. I think we shall agree that two years is a fair example of what an"appreciable length of time"may be. Athough much assisted by what the noble and learned Lord has said, I still think there is a possibility—not a very welcome one—of distinguishing this proposal from the others, and of having in the Bill a paragraph stating that collective agreement which is made in writing after the commencement of the Act, and which, as the first Amendment would say,is entered into for a period of not less than two years…",and does not contain a provision that it is intended not to be legally enforceable, can be presumed to be intended to be legally enforceable because of the substance of the two-year length of the agreement.
Those are three possible positions in descending order of acceptability, so far as we are concerned, although I do not know whether any one of them will be acceptable to the Government. The situation is extremely unsatisfactory as it exists at the moment; we want to improve the Bill, even at this late stage, and I hope that the Government will give sympathetic consideration and perhaps accept the first Amendment that I have proposed.
§ 5.17 p.m.
§ BARONESS SEEAR
My Lords, I hope that it will be possible to include in the Bill the words:is entered into for a period of not less than two years,…".In my view if we could have had in the Bill the requirement of agreements with a terminal date we should not have needed 893 the rest of the Bill, because I believe that this is the most important step we can take in order to get an agreement which would be dependable and observed. I remember that the late Professor Temperley used to say that a treaty entered into for five years could reasonably be expected to last five years, but a treaty for ever could be torn up at any time. It is the same with industrial agreements, whatever we like to pretend we are doing in making them legally enforceable. I have worked under an agreement with a terminal clause in an industry, highly unionised, highly competitive, but remarkably free from industrial strife—I refer to the shoe trade. There is no doubt that the provision there for a terminal agreement was a substantial reason for the good industrial relations in that industry.
If people know that an agreement is coming to an end, and can be reviewed at the end of a period of two years, it is reasonable to expect them to comply with it; but only such a limitation will make people willing to consent and continue with matters and agreements with which they are not satisfied. The most important reason of all is that such a clause gives manufacturers a reasonable certainty as to costs, and what is likely to happen to labour costs, and therefore a reasonable certainty in pricing. If we could give this assurance to manufacturers, we should be doing a great deal to ease the most serious consequences of industrial disputes at the present time. Therefore, to give encouragement to such agreements by incorporating such a clause in the Bill is a most important step to take.
§ 5.18 p.m.
§ THE LORD CHANCELLOR
My Lords, I thought that almost everything that could be said about these clauses had been said on Committee. I thought that any conceivable omission was repaired on Report, but here we are again, on Third Reading, with Amendments, some of which are identical to those which were previously discussed. Let us consider the arguments again. The noble Lord, Lord Diamond, quoted once more, with relish, the criticisms of the noble Lord, Lord Tangley. He was in error in doing so. It is true that the noble Lord, Lord Tangley, used the language attributed to him in Committee. It is true that he used it on the clause on 894 Committee which was then numbered 34, as this clause is. Unhappily, the clause on which he used the language is now numbered 36 and so, however much one may relish the criticisms of the clause, it has nothing whatever to do with the subject that we are now discussing.
If I may remind the House, I sought to meet the criticisms of the noble Lord, Lord Tangley, by five separate Amendments on Report stage which I hope may have softened his aspersions on Clause 36—at any rate if they did not, they have sufficiently dulled his acerbity to prevent his attendance here to-day. I will say a little more when I come to deal with the speech of the noble Baroness, Lady Seear, and the Amendment No. 4, which, although it is the one we are discussing, the noble Lord, Lord Diamond, rather coyly tucked in at the end of his discourse.
The second series of Amendments, Nos. 5, 6, 7 and 8, are simple, and we have discussed them before. They are of the order of the Amendment proposed by the then Lord Chancellor, Pooh Bah, in the course of Gilbert and Sullivan's Mikado. The Mikado discovered that, unfortunately, as he said,The food of an Act says ' compassing the death of the heir apparent'was treasonable and punishable by death. Pooh Bah, as your Lordships will remember, inserted the word "not" and said that anyone who did not compass the death of the heir apparent should be punishable by death—which allowed the various characters to escape their doom. He described this, so far as I remember, in language designed to show that this was only a drafting Amendment after all.
My Lords, the noble Lord, Lord Diamond, is a worthy successor to Pooh Bah. The Bill says that agreements in writing under Clauses 34 and 35 should be presumed to be legally enforceable unless there is an expressed disclaimer. The noble Lord has compassed this by reversing the two "nots" in his Amendment so that it shall be presumed not to be legally enforceable unless there is not a disclaimer but a direct attraction of legal enforceability by an expressed clause. This is in the direct tradition of Pooh Bah but the noble Lord will hardly be disappointed to know that Nanki Poo is not having any of it!
895 I really need say no more about this. This is a direct reversal of the policy of the Bill attempted by an Amendment on Third Reading which has already been discussed, both on Committee and Report, and I need only remind your Lordships of the concise advice contained in the Companion to the Standing Orders:It is considered undesirable that an Amendment which has been fully debated and decided upon on the previous stages of a Bill should be moved again on Third Reading (Report of the Procedure Committee, 18th July, 1961).I well remember, in the remote days when I was leading this House, answering a question by the noble Earl, Lord Swinton, on this very subject. My Lords, even if it were otherwise acceptable, I would ask your Lordships to reject such an Amendment or series of Amendments at this stage.
I now proceed to consider the proposal about a minimum period of two years; and the first observation I have to make about it is that if the noble Baroness believes that a two-year agreement has value for enforceability, and if that is also the view of the noble and learned Lord, Lord Donovan, the Bill as drafted provides for it. It provides that there is a presumption of enforceability of collective agreements in writing. The only difference between the Bill and the Amendment is not that it provides for it but that the Amendment provides only for that case and for no other; and this is where I part company from the Amendment and prefer the Bill. The Bill says, in effect, that parties can make what terms they like without limitation of time. They can, if they like, insert a provision, and no doubt the words of the noble Baroness and of the noble Lord will be carefully noted by trade unions. They will always wish to insert, as will employers' associations, a terminal clause of the type which the two distinguished Members of this House favour. But there is no compulsion on them to do so, and we do not intend to impose any.
The noble Lord, Lord Diamond, is concerned that if we do not accept one of these Amendments everyone who gives a promise will break it because it is not legally binding. I should be sorry to believe that either employers' associations or trade unions were so wholly contemptuous of the pledged word that only 896 legally enforceable agreements were agreements which they would keep. I am sometimes accused of being critical of trade unions but I have never suggested anything so contemptuous of them as the noble Lord, Lord Diamond, did, by implication, in that passage of his speech.
What I would say, however, is that the fallacy underlying the Amendment, and indeed the whole speech of the noble Lord, Lord Diamond, is that these agreements are enforceable only against trade unions. This is not so. I ventured to point out, both in Committee and on Report that nearly all collective agreements, whether they be enforceable or not, are in fact agreements whereby the employer makes concessions to trade unions. This is in the nature of the case; it must be so. If the contract of employment of the individual worker had provided adequate safeguards for the individual worker in the last 150 years, there would be no trade unions and no collective agreements, because they would be safeguarded by the ordinary process of individual bargaining. But collective bargaining is largely about concessions taken from employers by collective bargaining through trade unions. That is what they are about.
If the noble Lord will refer back to the definition clause and see what"collective bargaining"means in the Bill he will discover that it includes anything to do with the terms and conditions of employment. One could very well conceive of agreements which have nothing whatever to do with duration—that is to say, are not procedure agreements—but which have to do with conditions of employment. It may be very much to the advantage of trade unions to make such terms and conditions so that they have a direct right of recourse to the courts to enforce them against the employer or against the employers' associations. Sooner or later, the light will begin to dawn, and when this Bill has gone through and all the rhetoric and nonsense have been forgotten, they will discover that this is a clause for their benefit. I do ask the noble Lord in effect whether, if this train of reasoning has a grain of sense in it, he is wise to try to confine enforceability to a two-year period or more. For the reasons I have given, I hope that I have disposed of all three alternatives 897 which the noble Lord suggested and explained, in my judgment at least, why they ought not to be acceptable to the House.
§ LORD DIAMOND
My Lords, the noble and learned Lord has avoided any dealing with the arguments on the first two alternatives I put before your Lordships' House, but has dealt in some measure with the third alternative. As to the third alternative, I was privileged to listen to the speech of the noble Baroness, Lady Seear, from the Liberal Benches, supporting that alternative. The essential difference between the noble and learned Lord and myself—although it may occur to your Lordships that there are many differences—is that I do not think industrial relations are carried on in the way which the noble and learned Lord thinks they are, and I do not think one can regard a bargain struck at a particular point of time as one which will hold for the necessary length of time for which the noble Baroness herself and I should want it to hold, in the interests of both employer and employee and in the interests of the economy, because it is a moving situation. After six months a different position arises; after a further nine months or twelve months a different position arises again. Those who are
§ concerned over the collective agreement which has been entered into and recommended to them as a suitable price list (in their minds it is no more than a recommended price list) say to themselves,"This may have been a suitable price list a year ago, but it is not a suitable price list to-day, and there was nothing in the agreement as to why we should hold it to be so." There was no comparable benefit and nothing to tie the bargain down for a longer period.
§ I myself, recognising that bargains are not kept, and making the assumption that all of us are concerned to see that bargains are more readily kept and kept the longer, should have welcomed some introduction into the clause which encouraged a distinction so far as agreements with a period in them were concerned. The noble and learned Lord has not seen fit to accept that; he has not seen fit to deal with the arguments on the other two Amendments, and therefore we can only register our view in the usual way.
§ 5.30 p.m.
§ On Question, Whether the said Amendment (No. 4) shall be agreed to?
§ Their Lordships divided: Contents, 72; Not-Contents, 105.899
|Addison, V.||Gaitskell, Bs.||Raglan, L.|
|Airedale, L.||Gardiner, L.||Reay, L.|
|Archibald, L.||Garnsworthy, L.||Ritchie-Calder, L.|
|Ardwick, L.||George-Brown, L.||Royle, L.|
|Balogh, L.||Hamnett, L.||Sainsbury, L.|
|Beaumont of Whitley, L.||Henley, L.||St. Davids, V.|
|Bernstein, L.||Hilton of Upton, L. [Teller.]||Seear, Bs.|
|Beswick, L.||Hoy, L.||Shackleton, L.|
|Birk, Bs.||Hughes, L.||Slater, L.|
|Blyton, L.||Jacques, L.||Sorensen, L.|
|Brockway, L.||Janner, L.||Stocks, Bs.|
|Buckinghamshire, E.||Kennet, L.||Stonham, L.|
|Burntwood, L.||Leatherland, L.||Stow Hill, L.|
|Byers, L.||Lindgren, L.||Strabolgi, L.|
|Caradon, L.||Llewelyn-Davies of Hastoe, Bs.||Summerskill, Bs.|
|Champion, L.||Longford, E.||Tanlaw, L.|
|Chorley, L.||McLeavy, L.||Taylor of Mansfield, L.|
|Collison, L.||Macleod of Fuinary, L.||Walston, L.|
|Cooper of Stockton Heath, L.||Maelor, L.||Wells-Pestell, L.|
|Davies of Leek, L.||Moyle, L.||White, Bs.|
|Delacourt-Smith, L.||Noel-Buxton, L.||Wootton of Abinger, Bs.|
|Diamond, L.||Nunburnholme, L.||Wright of Ashton under Lyne, L.|
|Douglass of Cleveland, L.||Phillips, Bs. [Teller.]|
|Faringdon, L.||Platt, L.||Wynne-Jones, L.|
|Ailwyn, L.||Balfour of Inchrye, L.||Belhaven and Stenton, L.|
|Albemarle, E.||Barnby, L.||Berkeley, Bs.|
|Balfour, E.||Beauchamp, E.||Blackburn, L.Bp.|
|Blackford, L.||Grenfell, L.||Nugent of Guildford, L.|
|Brooke of Cumnor, L.||Gridley, L.||Oakshott, L.|
|Brooke of Ystradfellte, Bs.||Grimston of Westbury, L.||O'Neill of the Main, L.|
|Burgh, L.||Hailes, L.||Poltimore, L.|
|Burton, L.||Hailsham of Saint Marylebone, L. (L. Chancellor.)||Rankeillour, L.|
|Caccia, L.||Redcliffe-Maud, L.|
|Colville of Culross, V.||Hankey, L.||Rothermere, V.|
|Cork and Orrery, E.||Hanworth, V.||St. Aldwyn, E.|
|Courtown, E.||Harvey of Prestbury, L.||St. Just, L.|
|Craigavon, V.||Hatherton, L.||St. Oswald, L.|
|Craigmyle, L.||Hawke, L.||Salisbury, M.|
|Craigton, L.||Hurcomb, L.||Sandford, L.|
|Cranbrook, E.||Inglewood, L.||Sandys, L.|
|Crathorne, L.||Jellicoe, E. (L. Privy Seal.)||Savile, L.|
|Crawshaw, L.||Kemsley, V.||Sempill, Ly.|
|Croft, L.||Kinnoull, E.||Sherfield, L.|
|Cromartie, E.||Latymer, L.||Sinclair of Cleeve, L.|
|Daventry, V.||Lauderdale, E.||Stamp, L.|
|Davidson, V.||Long, V.||Stonehaven, V.|
|Denham, L.||Lothian, M.||Strang, L.|
|Derwent, L.||Lucas of Chilworth, L.||Strange of Knokin, Bs.|
|Drumalbyn, L.||McFadzean, L.||Strathclyde, L.|
|Ebbisham, L.||Mar and Kellie, E.||Swinton, E.|
|Eccles, V.||Margadale, L.||Tenby, V.|
|Effingham, E.||Massereene and Ferrard, V.||Teviot, L.|
|Elliot of Harwood, Bs.||Merrivale, L.||Trefgarne, L.|
|Emmet of Amberley, Bs.||Milverton, L.||Tweedsmuir, L.|
|Erroll of Hale, L.||Monck, V.||Tweedsmuir of Belhelvie, Bs.|
|Ferrier, L.||Morrison, L.||Vivian, L.|
|Fraser of Lonsdale, L.||Mowbray and Stourton, L. [Teller.]||Windlesham, L.|
|Gage, V.||Wolverton, L.|
|Glendevon, L.||Napier and Ettrick, L.||Young, Bs.|
|Goschen, V. [Teller.]||Northchurch, Bs.|
On Question, Amendment agreed to.
§ Clause 56 [General duty of employers to disclose information]:
§ 5.37 p.m.
LORD DIAMOND moved Amendment No. 9:
Page 49, line 40, after ("undertaking") insert ("or the undertaking of any associated employer").
The noble Lord said: My Lords, I beg to move Amendment No. 9. This is similar to an Amendment which was discussed at an earlier stage, on July 8, which was left open for consideration by the Government. The noble Earl, Lord Jellicoe, said he would be good enough to reconsider the matter. The question is a simple one and your Lordships will forgive me if I put it very shortly indeed. It deals with providing information which is likely to be in the possession of the undertaking, of the owner of the business, and information which is likely to be in the possession of any associated employer. It was to bring in information from both sources that the Amendment was moved. The noble Earl, obviously, was superficially impressed by the Amendment. He said—and I read from col. 1061 of the OFFICIAL REPORT of July 8:
My Lords, I must confess that when I first read this Amendment I was attracted by the symmetry of it, that the disclosure should operate, as it were, in both spheres.
He went on to say a little later in most persuasive terms (col. 1061):
As I said at the outset, I was initially looking at this without advice and I was attracted by the symmetry of the Amendment. I saw that in logic there was a case for arguing that if a clause bit on the one leg, as it were, it should bite on the other.
I found that not only calling for considerable symmetry, but calling for considerable sympathy as well. But I am sure it is a short point. The noble Earl finished up by saying (col. 1065):
We are discussing a purely practical point…. I shall be glad to look at it again in the light of arguments advanced by him and by the noble Lord, Lord Pargiter, and the noble Lord, Lord Bernstein".
The noble Earl made no promise, except to look at it again. This Amendment has been put down so as to give him an opportunity of saying that, having looked at the matter again, he is even more attracted by the symmetry than he was on the earlier occasison. I beg to move.
§ THE LORD CHANCELLOR
My Lords, my noble friend has indeed looked at this matter again, as indeed have I, and I think that on reflection the noble 901 Lord will see that what he proposes is both unnecessary and might impose an obligation impossible to discharge. Clause 56, to which this proposed Amendment relates, makes it a duty on an employer to disclose to the trade union representatives all such information relating to his undertaking as is in the possession of the employer or any associated employer. In other words, one wants to start by pointing out that any relevant information, whether it is in the possession of the employer or of an associated employer, must be disclosed. The employer is not exempted from disclosing information on the grounds that it is in the possession of an associated employer if it is relevant information; that is to say, if it relates to the undertaking about which the negotiations are taking place and if it is required for the purpose of enabling the trade unions to negotiate properly.
The proposal to insert the words, "or the undertaking of any associated employer", after the word "undertaking" in line 40, which is the proposal which the noble Lord, Lord Diamond, has made, would have this effect: it would be necessary to disclose information relating to other undertakings and not the undertaking in question. In some groups associated companies can include several hundred other companies. The belief we have is that information which does not relate to the undertaking where the bargaining takes place will not often fall within paragraphs (a) and (b) of subsection (1). The obligation proposed by the Amendment would impose something which might be beyond the capacity of many large groups of companies to discharge in any given case.
There is nothing, I think, between the noble Lord who proposed the Amendment and the Government in the belief that relevant information relating to the undertaking should be available; but it is to impose too much on employers to require from them all information relevant to other members of the group if it cannot be said to relate to the undertaking where the negotiations are taking place. My noble friend Lord Jellicoe was, as he said, attracted to this proposal, but we have come to the conclusion that it is not possible to do substantial justice if an obligation is imposed which it is impossible to discharge.
§ LORD DIAMOND
We have looked at the matter again, and the Amendment was put down to give the Government an opportunity of saying what conclusion they had reached. As the noble and learned Lord the Lord Chancellor has said, substantial justice is done without the Amendment, and the Amendment might cause difficulties elsewhere. In those circumstances I can only thank the Government for considering the matter, and ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 57 [Disclosure of information to employees by major employers]:
§ 5.46 p.m.
EARL JELLICOE moved Amendment No. 10:
Page 50, line 33, leave out ("500") and insert ("350").
§ The noble Earl said: My Lords, your Lordships may remember that we discussed on Report at some length the issue of the appropriate threshold in terms of a particular firm under Clause 57. I think there was a fairly general feeling, not only on one side of the House, that the figure of 500 in the Bill was too high. I undertook, with undue and perhaps unusual temerity, to consider this matter sympathetically. My Lords, we have considered this matter sympathetically and the result is the proposal embodied in this Amendment to reduce the threshold to 350. On Report the Opposition proposed to go down to 200; we are suggesting 350. I think that there was an Opposition Amendment which the noble Lord, Lord Diamond, withdrew when he saw the Amendment I am moving, to go down to 250. We are seeking to go no lower than 350 because the clause has been drawn mainly with an eye on large firms initially, because that is where we think the difficulties of communication and involvement are greatest.
§ I should perhaps mention a point I made on Report, to make clear that all firms with employees above the 350 mark will be entitled to a statement even though they may work in establishments below that size. That is the effect of the bracketed words in subsection (1). I would not wish to pretend for a second that between the figure of 350 on which 903 we have settled and the 200 or 250 proposed by noble Lords opposite there lies a deep gulf of principle. Clearly this is a matter for judgment. It is our view, however, that an initial limit of 250 would tend to apply the clause to a tier of employment where the need for annual statements is less marked and for which the clause was not initially designed. On Report I gave my subjective view, based on inadequate and imperfect knowledge of industry, that it is at the 500 mark that difficulties of communication become more difficult and where we need to enforce communication wherever possible. Noble Lords will have noticed that 350 is about mid-way between 200 and 500. This is a judgment of Jellicoe, or of Solomon. We have split the difference, and having given very careful thought between Report stage and now to this matter I suggest that this is a reasonable compromise.
§ Having said that, I should add that this is not the last word on this subject by any means. My right honourable friend the Secretary of State retains his power under subsection (7) to reduce the numbers still further, and that subsection has not been put into the clause merely for the fun of it. I think anyone who knows my right honourable friend knows his feelings about better communications in industry and about the freer flow of information within industry. So long as he is satisfied from experience of this clause in operation that it would be sensible to lower the floor, I can assure noble Lords that my right honourable friend will not hesitate to use the mechanism which is embodied in subsection (7). I beg to move.
§ LORD DIAMOND
My Lords, I certainly recognise that subsection (7) exists and I accept without hesitation the view which the noble Earl has taken of his right honourable friend's likely action in relation to the clause. I also observed that the question which was discussed at the same time, of excepted persons, has not been altered. So that as I read the clause as it will be, the new figure of 350 excludes part-time workers, and therefore the number of 350 would be a suitable figure having regard to the fact that that part of the clause remains unaltered.
904 I am grateful to the noble Earl for having considered the matter and for having tabled this Amendment. Immediately I saw it I moved my own Amendment for 250. I congratulate him on his consideration and also on his arithmetic. Nobody could have reached the halfway point between 200 and 500 with greater accuracy than the Government have done. I wonder whether I might delay your Lordships for just 30 seconds more, to say that this is how your Lordships' House works constructively. An Amendment is put down in the first place by those of us who feel that the matter requires further consideration. In this case we put forward the arguments, a number of your Lordships from all sides of the House were good enough to accept those arguments and, as a result, the Government have been good enough to move half way towards our point of view. I should have thought that was a matter on which we could all congratulate ourselves, and I am grateful to the noble Earl.
§ 5.52 p.m.
My Lords, this Amendment, No. 11, flows from the last Amendment and I beg to move it formally.
Page 51, line 27, leave out ("500") and insert ("350").—(Earl Jellicoe.)
§ LORD BEAUMONT OF WHITLEY
My Lords, I should like to speak briefly on this Amendment. The noble and learned Lord on the Woolsack beat me to the draw on the last Amendment.
§ LORD BEAUMONT OF WHITLEY
My Lords, we are grateful to the Government for these Amendments. The Government have met the Labour Party half way; but I should like to point, out that they have not met the Liberal Party half way, since we are still of the opinion that this should be an obligation on firms of every size. I think the Government have come 30 per cent. of the way to meet us on this particular point. I take the point made by the noble Earl, Lord Jellicoe, that it is the firm above a certain size where you cannot easily communicate with everyone without this 905 kind of written report; but I hope he also takes the point that it is the firm below this size where the employers possibly do not want to communicate very much and where it is important that there should be some obligation on them to do so. For that reason we on these Benches wanted a much lower figure—indeed, no figure whatsoever—but I suppose 30 per cent. of a loaf is better than no bread, and we are grateful for it.
§ LORD DIAMOND moved Amendment No. 12:
§ After Clause 80, insert the following new clause—
§ Tax relief for organisations entered in provisional register
§ ". An organisation which is or at any time has been entered in the provisional register shall, for the purpose of the relief afforded under the provisions of section 338 of the Income and Corporation Taxes Act 1970 be entitled to relief in respect of the income of any fund applied or applicable under its rules by the organisation for provident activities in any year in relation to which it is shown that it would not have been reasonably practicable for the organisation to conduct such provident activities in that year through a friendly society duly constituted under the provisions of the Friendly Societies Act 1896 owing to technical, constitutional or legal difficulties that would or might reasonably have been expected to be occasioned by the constituting of and the carrying on of such provident activities through such a society."
§ The noble Lord said: My Lords, this is a long and important Amendment and I hope I shall not weary your Lordships overmuch in putting forward the case for it. The Amendment relates to a matter which has been discussed on previous occasions but not in this form. When it was last discussed, the position was left open so that a meeting could take place to discuss it further outside the Chamber. It relates to the provident activities carried on by trade unions at the present time, and to the tax treatment which applies to the income so used for these provident activities, which has applied in that way for the last 50 years at least. It is a matter of national policy that savings of this kind should be encouraged, and that policy has been supported by all Governments over the whole of this century.906
§ The position which was reached when we last discussed the matter was that I was laying great stress upon the assurance given in another place by the Secretary of State with regard to the possibility of achieving this same tax treatment in another form. One had to consider another form because although nearly all unions which have these provident activities are registered unions at the present time, they will most likely cease to be registered trade unions when the new and more burdensome provisions of registration come into effect, whenever the Government decide to implement that section of the Act, as it will then be, and which will have that effect. So one has to consider whether these provident activities can attract that same tax treatment, because of course if they cannot then the beneficiaries of these provident activities will cease to be able to receive benefits of the same measure as they are receiving now, for the simple reason that income will be cut by the standard rate, or by nearly half.
Perhaps I might first refresh your Lordships' minds on the assurance given by the Secretary of State which is contained in Hansard for the other place on March 23. It reads:
I assure the House that if it were necessary to set up a special register for trade unions which wished not to register in the industrial relations sense, so that they could continue the other half of their activities, their provident fund activities, I would propose a special register. But it is not necessary. I have gone into this most carefully. I am told that there is no technical, constitutional or legal difficulty. I am assured on technical advice that the Industrial and Provident Societies Act 1965 or the Friendly Societies Act of 1896 is available for registering for the provident funds of unions which do not wish to register under the Bill in the industrial relations sense. Therefore, there is a special register in existence."—[OFFICIAL REPORT, Commons; 23/3/71, col. 335.]
In short, the right honourable gentleman the Secretary of State was saying that these two Acts provide facilities which could enable trade unions which wished not to register under the new Act, to attract for their provident activities the same tax treatment as hitherto.
§ That was the assurance given by the Secretary of State, and a view which has been taken by the trade unions as a result of the advice they have received, which advice is the joint Opinion of two 907 learned counsel, and as a result of the consideration which the T.U.C.'s executive General Council has given in particular to the practical aspects of it as well as bearing in mind the legal advice, is that the view given by the Secretary of State was misguided. The view that I have taken on this matter is that the advice which was given was given in haste, and therefore on a previous occasion I raised the question of the need to set up a special register inasmuch as unions could not, without technical, constitutional or legal difficulty, assure the same treatment for themselves under the Industrial and Provident Societies Act or under the Friendly Societies Act. The advice, to which I shall refer only shortly, contains one or two points which are crucial.
§ THE LORD CHANCELLOR
My Lords, as the noble Lord is aware, I asked him on the last occasion to give me a sight of this advice and I promised to treat it in total confidence, which promise of course I would honour. However, if he is going to refer to extracts from a written Opinion I ask him whether I would not be at liberty to refer to the Opinion myself.
§ LORD DIAMOND
My Lords, I shall do whatever the noble and learned Lord the Lord Chancellor prefers.
§ THE LORD CHANCELLOR
My Lords, the matter is entirely in the hands of the noble Lord, Lord Diamond. I asked to see this document and he gave it to me after I had assured him that I would treat it in total confidence, which I shall do. However, if he is going to refer to it in the House, I shall then ask to be at liberty to refer to it myself. He can do whichever he pleases, but I do not think it is fair for him to refer to parts of it without it being equally possible for me to refer to other parts.
§ LORD DIAMOND
My Lords, I do not suggest for a moment that it would be. I am perfectly familiar with the procedure if anyone produces a document—certainly from that Front Bench: that is, that everybody is entitled to see it. I think perhaps for the time being I had better rest on the treatment that took place on the last occasion; I shall rely on the trade union view expressed on the 908 basis of the advice and of the T.U.C.'s advice to its members which was based upon it.
The General Secretary of the Trade Union Congress, after the consideration to which I have referred, on July 8 sent a circular letter to all members, and I think I have given a copy of that letter also to the noble and learned Lord the Lord Chancellor. If the noble and learned Lord has said he would treat this in confidence, would he please take it from me that that treatment is no longer required. He is perfectly free to refer to any document in the same way as I will refer to it.
In that document the T.U.C. reached the following conclusion:The conclusion seems unavoidable that neither of these would provide a satisfactory means of securing tax exemption. It is however possible that one or two unions might find the Friendly Societies' solution practicable in their own circumstances.You will note that the Opinion of Counsel demonstrates that in his statement of March 23 Mr. Robert Carr was—intentionally or otherwise—giving a very misleading account of the operation of the Friendly Societies Act.I think it is my duty to try and remove that impression and to clear up the matter. That is a document which has gone out to every single trade union. I have read out the assurance given in the House, and on the last occasion I explained the difficulties as I saw them. The difficulties are essentially two-fold: the first is that there is a preliminary difficulty which presents no problem at all because it is agreed between all sides. The reference in the assurance or undertaking to the Industrial and Provident Societies Act 1965, is agreed to be misguided because that particular Act is not appropriate for the tax relief of a provident fund. So we are only concerned with the Friendly Societies Act. I am bound to say that the inclusion of both of them—of one which is to be considered and one which is really inappropriate—lent support to the feelings of those in the T.U.C. that the assurance given was not a very helpful one.
I want this matter cleared up so far as is possible because this seems to be the condition. The Government are saying that they do not deny that these provident fund activities should continue to receive the same treatment as hitherto; they do not deny that it is not possible 909 to do that under the Bill unless a special register is set up, but they say that it can be done under the Friendly Societies Act. The T.U.C. and I take the view that they cannot do it under the Friendly Societies Act, first of all, because the Friendly Societies Act requires the contributions to the friendly society to be voluntary. If the contributions are voluntary there is no means of securing either that the membership of the trade union and of the friendly society are identical, or of ensuring that the control of the friendly society's provident payments and policy in those payments is the same, as it would have been hitherto controlled by the union's duly elected officers; so that one could not be sure of achieving the same situation as hitherto.
There is the further problem that the Act provides that the voluntary contributions must come from members, aided if necessary by donations from outside. That means that a new society could be set up and people could join that society, but that society could not, having regard to the provisions of the Friendly Societies Act, rely wholly and exclusively on the funds of the union. Therefore, the funds of the union could not be simply transferred to the friendly society; they would have to be voluntary subscriptions by members aided by—and I think "aided by" are the words in the Act—donations from outside. These are the two particular difficulties which make it impossible for this method to be achieved.
There are also a number of practical and administrative difficulties. Here again one is on common ground because the noble Lord, Lord Drumalbyn, wrote a letter to me on June 30, at an earlier stage in our exchanges, on this whole question. I quote one paragraph, but it is a long letter and I will read as much of it as your Lordships require me to read. One paragraph at the foot of page 2 reads:I would not, of course, wish to imply that it would be a simple matter for a trade union to take this step"—that means friendly society registration—It might face problems depending on the provisions in its constitution and rules relating to the powers of its trustees, the nature of the provident benefits to be provided to members, and the method by which they are financed. At the very least it seems probable that the 910 consent of members to major changes in union rules would be needed, and in some cases it seems quite possible that complex financial and actuarial questions might arise over the division of union funds and assets between those to be used for general purposes and those to be allocated to the friendly society taking over responsibility for provident benefits.That was the noble Lord, Lord Drumalbyn, writing to me, setting out the difficulties of achieving what the Secretary of State said was the solution of this problem; and, of course, these are very real difficulties. The noble Lord, Lord Drumalbyn, referred in his letter, for example, to the need for major changes in union rules; but if the union does not agree to the changes for this purpose that difficulty cannot be overcome. The noble Lord, Lord Drumalbyn, refers to complex financial and actuarial questions over the division of union funds and assets. That is a very important matter, because at the moment many unions have joint funds, used partly for one purpose and partly for another; in order to register as a friendly society they would have to divide their funds and lose this flexibility. In short, they would not be able to carry on as they are doing at the moment, and that would create very real difficulties indeed.
So what I am putting to your Lordships is that there are "technical, constitutional and legal difficulties", and that the responsibility of the Government is to set up a special register so that trade unions which do not register in the ordinary sense under the Bill can avail themselves of the tax treatment as hitherto. This presents no problem, because the noble Lord, Lord Drumalbyn, will recollect that he told me quite recently that in order to deal with this identical problem—but only on the provisional register, instead of the permanent one—of an organisation of workers being treated as a trade union although it was not a trade union, the Government were proposing to bring in a clause in next year's Finance Bill giving the same tax treatment to such organisations of workers as if they were registered trade unions. So it is very easy for the Government to achieve their purpose, if they want to, in that way.
The difficulty that has arisen and that came to the fore during the course of the meeting the Government were good 911 enough to arrange to listen to what I had to say, as has been made clear, I hope, is that the Government do not wholly share the views of the T.U.C. and myself that these difficulties are very real and, for practical purposes, insuperable. The T.U.C. has made it clear to its members that in most cases they will not be able to avail themselves of this tax benefit, and the T.U.C. is most anxious that its members should be able to avail themselves of this tax benefit. It is a very important matter; it amounts to something between £5½ and £6 million a year. The T.U.C. would be most anxious to give the opposite advice to its members if it possibly could. So it is not taking this view for any unreal reason but because it feels it deeply, notwithstanding that its desire would be completely the opposite.
That being the position, I ask myself what are we to do at this late stage, not being willing to give up the fight if there is any progress to be made at all, and believing that here is a very serious matter indeed, serious for the unions and serious for the Government? Therefore, with the invaluable assistance of my noble friend Lord Stow Hill who during these debates has rendered me assistance of a kind for which I cannot thank him sufficiently, I drafted an Amendment which I hope will achieve this purpose. It will say that there is a difference of view as to whether the Secretary of State's undertaking is wholly satisfied or not; there is a difference of view as to whether there are technical, constitutional or legal difficulties, and this difference ought to be settled before those who are accustomed to settling differences of this kind. Therefore an Amendment has been put down providing—I now do not read the words, but attempt to translate—that if an organisation (that is to say, an organisation of workers, and this is put down immediately after the clause which refers to the provisional register) is able to show in any particular income tax year that it could not reasonably have been expected to achieve the same purpose, the same ends, by registering under a friendly society (we are no longer concerned with the Industrial Societies Act) and satisfies anybody who needs to be satisfied of that point, it will be entitled to the same tax treatment as the Govern- 912 ment are providing for bodies on the provisional register. This is a method of admitting that there is a difference of view as to the law, and a way to resolve that difference of view, taking account of the conclusions which the T.U.C. have reached much against their will.
The Government's point of view—although the noble Lord, Lord Drumalbyn, or the noble and learned Lord the Lord Chancellor will put it forward—is, I am sure, that they wish this tax treatment to be achieved, but they wish the unions to do everything in their power to achieve it through the Friendly Societies Act. I assure your Lordships that if I thought the unions could get the same answer through the Friendly Societies Act I should not be bothering your Lordships for one moment. This is simply a matter of ensuring that the beneficiaries who are receiving old age benefit, retirement benefit, sickness benefit and so on, continue to receive the same benefit, made up partly from the income from the funds and partly from the tax rebate. I hope this Amendment, which respects that point of view but leaves it to be settled at some future time, will strike your Lordships as being a reasonable way of dealing with the difficulty which is felt intensely by the unions, a difficulty which I, having regard to the statements made by the T.U.C. am very anxious indeed to clear up. I beg to move.
§ 6.18 p.m.
§ THE LORD CHANCELLOR
My Lords, I think there is a considerable difference between the noble Lord, Lord Diamond, and myself about this matter. I can only rehearse the considerations which have moved me in the matter in the order in which I had to consider them, and leave the House to judge between us, which is the way in which differences of this kind have to be determined. The first time I became seised in any way of any trouble about this matter was when the noble Lord. Lord Stow Hill, wrote to me, or spoke (I think it was in the course of the Second Reading debate, but it may have been on Committee), and asked me the position of trade unions under the Income Tax Acts as regards the tax concession which we ultimately agreed was the tax concession now contained in Section 338 of the Income Tax Act 1970—which is, 913 of course, the consolidating measure. I replied to him that this tax concession would continue to be available to registered trade unions, and that since the consolidating measure omitted reference to the Act of 1871 no special Amendment would be necessary. That was the first stage of the controversy.
The second stage was that it was pointed out that if a union was at the moment registered under the Act of 1871 it would, on any view, take time before it reached the register under this Bill, and during the interregnum it would be on the provisional register. What, I was then asked, would be the position of that union which was on the provisional register during the time when it was so registered, and therefore not registered fully under the provisions of this Act? I made inquiries. I ascertained that it would be contrary to the privileges of the House of Commons to insert an Amendment in this Act, but I received and transmitted an undertaking on behalf of the Treasury that the next Finance Act would be amended so as to provide for the full concession with whatever degree of retrospection was necessary. That was the second stage in the controversy.
The third stage was when the noble Lord, Lord Diamond, at the Committee stage, and in language which he largely repeated on Report so far as I was concerned, said three things. I think he said, first of all, that he was concerned about the beneficiaries under the existing provident schemes. He used rather emotive language, and said he was concerned for the annuitants or the mourners. They were entitled to whatever burial benefits would be available, and he alleged that if the tax concession were not available, the annuitants would have their annuities cut by half and so would suffer a very great deal of hardship, and he directly accused the Government of blackmail. He used that language. He suggested that the Government were seeking to compel unions to register under the Bill contrary to their will by threatening to deprive the annuitants of half, as it were, of their annuity; and he went on to say that the honour of the Secretary of State was concerned, for reasons which he developed at length, because it was not possible for the friendly societies, quite apart from the position of the existing 914 annuitants, to continue their provident activities. And he said, as he has said to-day, that he was relying upon a legal Opinion and also on the conclusions which the trade unions had formed as a result of receiving that legal Opinion. It was at that stage that I received a sight of the legal Opinion, which I promised to treat in confidence, and which I will continue to treat in that way. He was also good enough to show me the T.U.C. letter, on which I gathered from him I am not bound equally to confidence and to which I can refer.
My Lords, I will deal with the points which now arise. First of all, as regards existing annuitants, I am not aware that either the letter, or anything to which it refers, contains a separate treatment of this point; but what is absolutely plain to my mind—and about which I know of no argument to the contrary—is that I can think of at least four or five ways in which existing annuitants can be safeguarded by a trade union, whether or not it registers, without the smallest loss of tax concession as regards existing annuitants. I could enumerate them, but so far as I know it has not been challenged that there is anything in that point as a separate point at all; and to my mind that destroys the allegation of blackmail which ought never to have been made at all.
The annuitants could be safeguarded by creating a charitable fund made over to trustees. They could be safeguarded by covenant. They could be safeguarded by purchasing an annuity from a reputable insurance company. There are other ways. They could, of course, be safeguarded by the simple process of registration. They could be safeguarded by transferring the fund to a friendly society in circumstances which I am about to disclose, but as regards the existing annuitants there never was the smallest justification for the charge of blackmail. I was glad to notice that the noble Lord in proposing his Amendment did not pursue the charge, although he did not withdraw it. I think he should never have made it, and I would think it ought to be withdrawn.
The next point was whether they could continue their provident activities. The facts are as follows. The House must judge whether the noble Lord's allegations have really the smallest basis in 915 them at all any more than, in my judgment, the allegations with regard to the existing annuitants have any substance in them at all, either. But in the first place I feel it my duty to say to the House that what my right honourable friend has done is to rely upon the legal opinion of the Solicitor General. The Solicitor General has now had the advantage of the meeting to which the noble Lord referred, and in one respect which I shall disclose to the House, the opinion of the Solicitor General does not coincide with the opinion which the noble Lord's advisers have formed. The opinion of the Solicitor General is, at any rate in one extremely important respect, I think, borne out by the Registrar of Friendly Societies. All I say about this is that whether the Solicitor General be right or whether the noble Lord's advisers be right is a matter which people can argue about. But what cannot be argued about is this: that when my right honourable friend relies upon the legal advice of his constitutional legal adviser it is, in my judgment at any rate, intolerable to accuse him of a breach of faith or to say that his honour is at stake. He is pursuing advice from the proper source from which Ministers obtain legal advice, and although I belong to a profession where we have to acknowledge that legal advice is not infallible, I know of no particular reason to believe that the Solicitor General is wrong in this case. To say that is a breach of faith or the honour of a Minister is at stake is something which ought not to be done in this House, and that again ought, in my judgment, to have been withdrawn; but it has not been, although it was not reiterated in proposing this Amendment.
The facts upon which this matter is to be disputed are as follows, and again I must leave it to the House to judge. It is, in fact, the case that two very well run unions indeed—NALGO and the N.U.T., but it is also within my knowledge that there are other analogous bodies to which the same observation applies—already use the Friendly Societies Acts for this purpose. What they do in fact is to form a friendly society with a very small number of original subscribers, as in the case of a limited company, and one of the rules is that the friendly society is limited in membership to those who 916 are members of the union. Members of the union are encouraged but not compelled to join, I think, in those two particular cases. There is a separate subscription collected at the same time as the basic union subscription.
Whether it is actually done in those two cases I do not know, but it is possible and accepted as possible under this arrangement for the governing body of the union and the governing body of the friendly society to be the same persons wearing different hats according to which operation they are carrying out. This has worked for a great number of years, certainly with those two very well run organisations, and to my knowledge other organisations as well. In relation to organisations of that kind, there cannot be the smallest difficulty whatever, legal, constitutional or technical, in continuing that arrangement, whether or not the unions thereafter register under the Act. So far as that sort of arrangement is concerned it is pure nonsense, and nothing else, to pretend that there is any difficulty at all.
What also emerged from the facts which I must now disclose to the House is that a large number of other unions do, and I think every union in the land can (though whether they choose to do so or not is a matter for them) operate what is virtually the same scheme at the moment but without registering a friendly society. What is done is to make a separate subscription for the provident activities of the union, which is collected at the same time as the basic union subscription from those members who wish to benefit from the provident activities. Whether or not that be a desirable arrangement is a matter for the union concerned. What is plain is that there cannot be the smallest difficulty in such a case where the union already does this, of a union simply registering a friendly society and going straight over to what I might call the N.U.T. and NALGO model. That, again, is something about which I, at any rate, can see no constitutional, technical, or legal difficulty. It may be that other people are brighter than I am, but I cannot see any difficulty in principle in doing that in such a case.
There are no doubt unions—and exactly how many they are I do not know—which do not operate their provident 917 funds in this particular way: that is to say, they do not make it voluntary, in the sense that membership of the union is voluntary (assuming the membership of the union is voluntary), but they say that if you are a member of the union you must subscribe to the provident fund. Then no doubt the provident fund is not hived off in the way I have been describing. I cannot see any reason of any importance why, if a union wished to transfer its activities for the future to what I might call the friendly society model, the position of existing subscribers who are not annunitants—because the annuitants could be dealt with quite simply by handing over a sum to protect them—could not be met by maintaining a small sum to capitalise the benefits of that small minority who wish to be excluded from the provident activities for the first time. I can see no difficulty there, or any injustice in it at all. It would apply only to those who wished for it, and it would completely safeguard their rights on a relatively minor scale. I suspect that anybody who was a member of a union, and faced with the discovery that the provident activities were in fact carried on by a fund which was applicable for other purposes, would, if he was well advised and even if this Bill were not before Parliament, strongly recommend that his society should change its rules in the way I have described.
However, there is one point of difference, and so far as I know one point of difference only, between the legal advice which has been received by the Government and the legal advice which has been tendered to the unions. I have so far described it on the assumption that not every member of the union would wish to participate in the provident activities. The Government's advice is (and I know of no reason to think that it is wrong) that although the Friendly Societies Acts provide that membership of a friendly society must be voluntary, there is nothing in those provisions to prevent the new friendly society registered under that Act from making it a condition of membership not only that the membership should be limited to its members of the union but that it should be co-terminous with the membership of the union, and membership of the society should be a condition of membership of the union. I understand that the legal view taken 918 on the other side is that that is not right. All I say is that it is an extremely minute point, because it can apply only to the small minority of members who do not wish to go on with the provident activities, on the assumption that the advice which the noble Lord has received is right and that of the Law Officers is wrong. That small point can be guarded against, as I have said, by setting a small sum aside to capitalise the contributions of those who did not wish to participate. At any rate, in my judgment, there is little enough in that.
At the Report stage, the noble Lord said that there was another difficulty which was more or less serious. He said that the benefits available under the Friendly Societies Act were different from those which were available at present under the Trade Union Act. I am not surprised that he has not pursued this point at this stage, for the document, to which I am entitled to refer, namely, the trade union letter, contains this sentence:The section of the opinion dealing with the range of benefits available to members of a friendly society concludes that the range of benefits is at least as wide as, and probably wider than, the range of benefits available under Section 338 of the Income and Corporation Taxes Act, 1970.Therefore, I am not surprised that the noble Lord did not pursue the matter at this stage. I think he would have been wise to disavow it explicitly, as at the previous stage he led the House to believe that it was a serious objection.
At the end of the day I am bound to ask the House to decide between us. Apparently, the noble Lord thinks that there are serious administrative difficulties—not legal difficulties; he did not say legal difficulties, constitutional difficulties. I am not quite sure what "technical difficulties" meant in the original assurance. So far as I know, it has certainly not been suggested that there are any difficulties other than those which I have tried to enumerate, except one, to which I will come. I would have submitted that this is really a case which is created out of suspicion and phantasy—that is the most charitable view that one can form of it. There seems to me to be nothing in it. I have done my best to see whether there was anything in it. Each point, as it is raised, turns out to be a phantasm. That being so, I 919 am bound to say that it I had thought that existing annuitants were in jeopardy, as we were led to believe, and if I had thought there were serious constitutional objections, as we were led to believe, and if I had thought that the benefits were seriously curtailed, which we had been led to believe, I might have been making a different speech from the one I am making now. What is left of the case? I know of only one thing that is left, and that is that there may be unions—I do not know—that would wish to use the same fund for provident purposes and to support industrial action. That might have been a difficulty; but that is not the kind of difficulty which is included in my right honourable friend's assurance.
§ 6.38 p.m.
§ LORD DIAMOND
My Lords, the noble and learned Lord has been helpful on certain matters, and on others I do not think he has advanced the case very much. If he wants me to go back to the blackmail episode, I am delighted to do so. What he did not refresh your Lordships about was that at that stage the noble Lord, Lord Windlesham, was put up by the Government to say not that there was an undertaking which had been given by his right honourable friend, but that the solution was to register. Time and time again he spelt that out, and made it clear that those who registered under the new Act were entitled to this tax treatment, and those who did not register under the new Act would not be entitled to this tax treatment because they were not going to register. This was the view he put forward. This was the plainest pressure being put upon one body of persons, who could not help themselves, to try to secure that another body of persons did something which the Government wanted them to do; namely, to register. That is why both the General Secretary and I described that action on more than one occasion with the language which I have used.
As I said then, I have looked up the dictionary time and time again and I can find no other word which would cover that kind of pressure. That is what that issue was about when the noble Lord, Lord Windlesham, made that speech. It was only when I intervened subsequently in a later speech, and reminded him of 920 what his right honourable friend had said in another place and chided him with not having referred to that in his first speech, that any mention of that matter was made. So at that point the Government's attitude was quite clearly, "You should register. We want you to register, and if you register you will get this tax treatment. If you don't register, you will not." That is that episode. As to whether any challenge has been made by anybody about the Secretary of State, I repeat the statement that has gone out from the General Secretary of the T.U.C. to every affiliated organisation. It says, in the final paragraph, which most people read in every letter:You will note that the Opinion of Counsel demonstrates that in his statement of March 23 Mr. Robert Carr was—intentionally or otherwise—giving a very misleading account of the operation of the Friendly Societies Act.I think that that is a challenge to the honour of the Secretary of State which one wants to see removed. That is why we have raised this matter of trade unions getting the benefit of tax treatment by some means or other.
The noble and learned Lord has not suggested how it comes about that the T.U.C., with their great desire to achieve this position, have felt bound to advise their associated members as they have done. He has picked on one or two examples that he knows, but the T.U.C. have discussed this with all their members and have a wider range of knowledge. The first point that arises is that there is this flexible treatment of funds, for which Section 338 is tailored and which is made absolutely explicit in the letter from the noble Lord, Lord Drumalbyn, when he explained to me, in answer to the Question I raised in this House, that the Inland Revenue have regard not to the source of the funds but to the way in which they are applied, because joint funds are applied sometimes for one purpose and sometimes for another. The noble and learned Lord has said that that presents a real difficulty. That is one thing we are agreed about, and it applies in a large number of cases.
The noble and learned Lord referred me to N.A.L.G.O. and the N.U.T. So far as I know, they are not registered under the 1871 Act, and because they are not registered they set up years ago their own provident friendly societies under the 921 Act. This does not deal at all with the point which I raised, of the continuation of treatment of provident benefits by existing trade unions who are going to have their registration withdrawn because of the burdens put upon them by the new form of registration. The noble and learned Lord has already admitted that, though they may by coincidence get it, they cannot achieve it by control of the identity of their members or by control of provident funds by people who control the union.
So we still have a situation in which it is impossible—that is what I said, and I repeat it—to ensure the result, which apparently the Government wish to see and which certainly the T.U.C. and I want to see, of the same treatment being achieved. Then the noble and learned Lord taxed me on the question of the range, and said that he was not surprised I had not returned to this topic. I said clearly when I saw him that I regarded this as the least important of the differences between us. I am not disputing that there is a difference of range. In certain cases it might suit a particular union to have a wider range under the Friendly Societies Act, and in other cases it would not suit a union.
§ THE LORD CHANCELLOR
My Lords, is the noble Lord seeking in any way to differ from this proposition, that the range of benefits is at least as wide as, and probably wider than, the range of benefits available under Section 338?
§ LORD DIAMOND
My Lords, the answer is: Yes, I am; yes, I am; yes, I am. I hope I have made it clear.
§ THE LORD CHANCELLOR
My Lords, the noble Lord is actually disputing and contradicting the phrase which I have read out straight from the letter signed by Mr. Victor Feather.
§ LORD DIAMOND
Yes, my Lords, I am, because that was not an accurate statement of the law. I would have thought that the noble and learned Lord would have preferred to have the letter of the Act and the treatment in Section 338 rather than what somebody said about somebody's opinion of the law. And the law, as he will readily acknowledge, does provide for different benefits. There is one difference in particular—that the Friendly Societies Act permits 922 payment only in case of need. Whereas under a trade union provident fund payments can be made as arranged and as anticipated, irrespective of whether there is need or not, the Friendly Societies Act provides that it can only be paid where there is need. That is why I am saying that this is an important issue and an important difference.
Finally, the noble and learned Lord said that this is all a fantasy. Well, it must strike your Lordships as very odd indeed that the T.U.C., who are most anxious to achieve for their members the continuity of this treatment, should take the view they have done. The noble and learned Lord said that I referred to existing annuitants only. I must accept that he has carefully checked what I said. What I intended to refer to, and should have said, was "present and future annuitants". In those cases where income is reduced by tax being charged, as opposed to tax not being charged, there is less income available for those who are beneficiaries.
What has come out of this clearly is that, for reasons which I do not understand, the noble and learned Lord takes a different view of some of the difficulties; not all of them—some have been admitted to me in the letter from the noble Lord, Lord Drumalbyn, and others have just been admitted by the noble and learned Lord now sitting on the Woolsack. We are talking about trade unions in the plural and not about each one in particular, and neither the noble and learned Lord nor I can say precisely what happens in every single union. There must be different cases, but there are some cases where the difficulties would be insuperable, and therefore it is right, in those cases where they cannot get over these difficulties, that they should be entitled to the same tax treatment as promised to them, if they can establish to any reasonable independent person—and the noble and learned Lord will not mind me underlining the word "independent"—that they have taken all reasonable steps to try and get this tax treatment and have not succeeded in doing so. This is a very reasonable request, and it ought to be included in the Bill for the security of the funds of trade union members and their beneficiaries.
§ 6.49 p.m.
§ On Question, Whether the said Amendment (No. 12) shall be agreed to?
§ Clause 97 [Industrial action in support of unfair industrial practice]:
§ 6.57 p.m.
§ LORD DELACOURT-SMITH moved Amendment No. 13:924
Their Lordships divided: Contents, 50; Not-Contents, 109.
Page 77, line 30, leave out ("the") and insert ("a").
|Addison, V.||Greenwood of Rossendale, L.||Ritchie-Calder, L.|
|Archibald, L.||Hall, V.||Royle, L.|
|Balogh, L.||Hamnett, L.||St. Davids, V.|
|Bernstein, L.||Hilton of Upton, L.||Segal, L.|
|Blyton, L.||Hoy, L.||Shackleton, L.|
|Brockway, L.||Hughes, L.||Shepherd, L.|
|Caradon, L.||Jacques, L.||Slater, L.|
|Champion, L.||Janner, L.||Stocks, Bs.|
|Chorley, L.||Kennet, L.||Stonham, L.|
|Collison, L.||Leatherland, L.||Stow Hill, L.|
|Cooper of Stockton Heath, L.||Lindrgen, L.||Strabolgi, L. [Teller.]|
|Delacourt-Smith, L.||Llewelyn-Davies of Hastoe, Bs.||Taylor of Mansfield, L.|
|Diamond, L.||Lloyd of Hampstead, L.||Walston, L.|
|Douglass of Cleveland, L.||Macleod of Fuinary, L.||White, Bs.|
|Gaitskell, Bs.||Peddie, L.||Wright of Ashton under Lyne, L.|
|Gardiner, L.||Phillips, Bs. [Teller.]|
|Garnsworthy, L.||Raglan, L.||Wynne-Jones, L.|
|Aberdare, L.||Drumalbyn, L.||Monck, V.|
|Ailwyn, L.||Eccles, V.||Monk Bretton, L.|
|Albemarle, E.||Elliot of Harwood, Bs.||Mountevans, L.|
|Balfour, E.||Emmet of Amberley, Bs.||Mowbray and Stourton, L.|
|Barnby, L.||Erroll of Hale, L.||Napier and Ettrick, L.|
|Beauchamp, E.||Falkland, V.||Northchurch, Bs.|
|Beaumont of Whitley, L.||Ferrier, L.||Nugent of Guildford, L.|
|Belhaven and Stenton, L.||Foot, L.||Oakshott, L.|
|Belstead, L.||Fraser of Lonsdale, L.||O'Neill of the Maine, L.|
|Berkeley, Bs.||Gage, V.||Poltimore, L.|
|Boothby, L.||Glendevon, L.||Rankeillour, L.|
|Boyd of Merton, V.||Goschen, V. [Teller.]||Reay, L.|
|Brooke of Cumnor L.||Grenfell, L.||Rothermere, V.|
|Brooke of Ystradfellte, Bs.||Gridley, L.||St. Just, L.|
|Brougham and Vaux, L.||Grimston of Westbury, L.||St. Oswald, L.|
|Burgh, L.||Hailes, L.||Salisbury, M.|
|Burton, L.||Hailsham of St. Marylebone, L. (L. Chancellor.)||Sandford, L.|
|Byers, L.||Sandys, L.|
|Caccia, L.||Hankey, L.||Savile, L.|
|Carnock, L.||Hawke, L.||Selkirk, E.|
|Coleraine, L.||Henley, L.||Sempill, Ly.|
|Colville of Culross, V.||Hertford, M.||Sinclair of Cleeve, L.|
|Conesford, L.||Hood, V.||Stonehaven, V.|
|Cork and Orrery, E.||Inchyra, L.||Strang, L.|
|Courtown, E.||Inglewood, L.||Strange of Knokin, Bs.|
|Craigavon, V.||Jellicoe, E. (L. Privy Seal.)||Strathclyde, L.|
|Craigmyle, L.||Kemsley, V.||Swinton, E.|
|Cranbrook, E.||Killearn, L.||Tenby, V.|
|Crathorne, L.||Latymer, L.||Teviot, L.|
|Crawshaw, L.||Lauderdale, E.||Trefgarne, L.|
|Croft, L.||Lonsdale, E.||Tweedsmuir, L.|
|Cromartie, E.||Lucas of Chilworth, L.||Tweedsmuir of Belhelvie, Bs.|
|Cullen of Ashbourne, L.||McFadzean, L.||Vivian, L.|
|Daventry, V.||Far and Kellie, E.||Wade, L.|
|Davidson, V.||Margadale, L.||Windlesham, L.|
|Denham, L. [Teller.]||Massereene and Ferrard, V.||Wolverton, L.|
|Derwent, L.||Milverton, L.|
Resolved in the negative, and Amendment disagreed to accordingly.
§ The noble Lord said: My Lords, I beg to move Amendment No. 13. I think that the case for this Amendment can be best stated by reviewing briefly the origin of subsection (3) of Clause 97 which it seeks to amend. Under what is now Clause 96, as your Lordships know, it 925 is an unfair practice for a person to take certain action unless he does so within the scope of his authority on behalf of a trade union. It was recognised, I think, from the outset that such action, which was unfair under what is now Clause 96, might subsequently be endorsed by the trade union to which the individual belonged who had taken the initial action outside the scope of his authority. As the Bill was originally drafted, the view was taken, at any rate by some, that such endorsement by the trade union could itself be regarded as unfair, because it furthered—or, as the Bill was then drafted, it aided and abetted—action which was taken under Clause 96 and which was itself unfair.
§ The view of the Government from the outset, as I understand it, was that that was an incorrect reading of the situation. But, whether necessarily or not, certainly in order to make the position clearer, the Government on the Report stage introduced subsection (3). There is no doubt that, from the point of view of noble Lords on this side, the inclusion of subsection (3) was welcome. But on further examination of it, we posed the question whether, as at present drafted, it adequately dealt with all the situations with which it was intended to deal, or with which at any rate it ought properly to deal.
§ There are in many places of work multi-union situations—a number of unions representing different groups of workers who work in close co-ordination, and who may well be represented by a joint committee under a convener, the committee being made up of representatives of different groups of members of different trade unions. In such a situation, which is a widespread one, it could well arise that the convener, who was the individual who had taken the action which under Clause 96 was unfair, was a member of a particular trade union, but that a number of members of other trade unions had become involved in the action. This is still action which under Clause 96 is unfair, but it is action which is subsequently endorsed by one or more of the trade unions involved; and it is not clear to us, at any rate, how in a multi-union situation such action can properly be brought within the terms of 926 subsection (3) of Clause 97. This wording appears to us to be restrictive in the sense that it seems that it is the union whose official or members took the original action which alone validates the action; and it is not clear to us how that validation or endorsement would apply if members of other unions had become involved. In order to remove any difficulty or ambiguity it appears to us appropriate to adopt this small Amendment, which I commend to your Lordships. I beg to move.
§ THE LORD CHANCELLOR
My Lords, this is another Amendment of the type which appears to be innocuous but in fact alters the whole meaning of a clause. I have always made plain, both on Committee and Report, what the Government propose to do. We were always prepared to make it absolutely plain that where a union endorsed by subsequent official action the unofficial action of one of its members, while it did not validate that unofficial action, it did not render itself liable to Clause 97 under which it might have become liable to be charged with an unfair industrial practice. I thought that the old clause, in spite of difficulties of draftsmanship, covered this point, but it is open to argument, and I made it clear that the new subsection (3) covered the point. In fact it has been so covered. The noble Lord now wants us to cover a quite different point, which is that if an unofficial action constituting an unfair industrial practice is taken by the officials of one union, official action in support of it taken by another union should be covered in the same way as an official action taken by the union in support of its own officials. We are not prepared to accept that. It is a question of policy.
The noble Lord has asked me a question of law. I am not sure that I can answer it off hand, but my belief has always been that in most cases where a union takes originating official action it will not be bitten on by Clause 97, because it would be regarded, as a matter of fact, not as an action in furtherance of an original action officially taken but as a new originating action in support of the original dispute, which is not the same thing. I cannot guarantee that that opinion is right. I think it is open to question, 927 but I would be disposed to think that it is the view which would be applicable in most cases. What we are not prepared to do is to defend the official action of one union if it seeks to act in support of an unfair industrial practice consisting of an unofficial action by another union. That would be the effect of the Amendment and, for that reason, we could not accept it. I hope the noble Lord is plain as to the attitude we have taken, and I hope that he does not feel that I have misled him in any way at any stage of the proceedings.
§ LORD DELACOURT-SMITH
No, my Lords, I would not in any case say that the noble and learned Lord, or any other noble Lord who has spoken from the Government Benches on this point, has misled me. But I am bound to say that I think there is a very real difficulty here. I see the difficulty which the noble and learned Lord has seized in the Amendment which I have moved, but equally I am not sure whether his present form of words meets the legitimate points to which I was seeking to draw attention. It may well be that it is exceedingly difficult, reflecting on the speech which the noble and learned Lord has made, to devise a formula which meets my point without being open to his objection. It is perhaps one of the examples—not by any means the only one in the Bill—where difficulties of this kind arise, and where it seems extremely hard to meet a real industrial problem without a form of words which, at any rate in the view of the Government, would go wider than was justified to meet the original case.
I am bound to say I am still of the view that there is a real difficulty here in a situation where there are a number of unions working together in reasonable harmony in a particular workplace. I take note of the fact that it is not an Amendment which the Government feel able to accept. It is not one on which I would feel disposed to invite my noble friends to divide the House. Equally I feel it is not an Amendment which I can withdraw, and I shall therefore merely leave the matter as it is for the moment and invite the views of others.
§ On Question, Amendment negatived.928
§ Clause 100 [Extended scope of industrial tribunals]:
§ 7.8 p.m.
THE LORD CHANCELLOR moved Amendment No. 14:
Page 79, line 24, leave out first (" The ")
§ The noble Lord said: My Lords, I rise to move this and the little fascicle of Amendments which succeeds it. I think I can honestly say to the House that they are drafting Amendments. The language of the Bill, as drafted, indicates that the tribunals have a permanent form which should be retained permanently. This was not the intention or the belief of the draftsman, and he has now sought to correct what I believe to be a genuine mistake. I was hesitant about proposing an Amendment in this case at the last moment on Third Reading, but I was persuaded that if the courts misconstrued this clause the consequences might be unfortunate. Therefore I put these forward as drafting Amendments, and I beg to move.
§ On Question, Amendment agreed to.
§ THE LORD CHANCELLOR
My Lords, with the leave of the House, may I move the next four Amendments en bloc? They are all consequential on Amendment 14. I beg to move Amendments No. 15, 16, 17 and 18.
§ Amendments moved—
§ Page 79, line 25, leave out (" continue to exist ")
§ Page 79, line 26, leave out (" for the purpose of exercising ") and insert ( continue to exercise ")
§ Page 79, line 30, after (" 1966 ") insert (" and ")
§ Page 79, line 30, at end insert ( shall exercise the jurisdiction conferred on industrial tribunals by or under ").—(The Lord Chancellor.)
§ On Question, Amendments agreed to.
§ Clause 160 [Review of ballot taken under Part II or Part III]:
§ LORD DRUMALBYN moved Amendment No. 19:
Page 125, line 13, at end insert—
(" (5) Any reference in this section to Part II of this Act shall be construed as including a reference to Schedule 1 to this Act.")
§ The noble Lord said: My Lords, this is a small Amendment to make certain 929 the intention that the review of a ballot taken under Parts II and III of the Bill will extend to the review of a ballot for an approved closed shop agreement. There were some doubts because the words"Schedule 1"were left out. This Amendment will include"Schedule 1 ", and make quite certain that the intention of the noble and learned Lord, Lord Gardiner—to whom we are indebted for having drawn attention to this matter—will be carried out. I beg to move.
§ On Question, Amendment agreed to.
§ Schedule 4 [Requirements as to rules of trade unions and employers' associations]:
LORD DIAMOND moved Amendment No. 20:
Page 162, line 31, leave out from (" action ") to end of line 32.
The noble Lord said: My Lords, I beg to move this Amendment, which I will deal with shortly, having regard to the hour. This Amendment comes back to a matter which was previously discussed but not decided upon and the noble Lord, Lord Drumalbyn, undertook to reconsider the matter. It arises on paragraph 10 of Schedule 4, which describes what the rules must specify and then goes on to use the words which the Amendment seeks to delete. The words are:
…and the circumstances in which any such instructions may be so given.
It was felt that the words could not mean anything. I always stand in awe of all lawyers, but I was somewhat heartened when my noble and learned friend Lord Gardiner said at column 30:
My Lords, it is a new principle of construction to me that one does not construe words in their ordinary sense because if one were to do so they would prove to be unworkable."—[OFFICIAL REPORT, 12/7/71.]
However, the noble Lord, Lord Drumalbyn, said that he would have another look at it, and I move this Amendment so that he can tell us the results of his consideration.
§ LORD DRUMALBYN
My Lords, in view of the misgivings of noble Lords about the drafting of this requirement, I have had another look at it. One can only make sense if one quotes the whole paragraph. It says:The rules must specify any body by which, and any official by whom, instructions 930 may be given to members of the organisation on its behalf for any kind of industrial action, and the circumstances in which any such instructions may be so given.We have two things: we have the bodies and the officials specified on the one hand, and we have the circumstances in which such instructions should be given on the other hand. Noble Lords felt that this may require much too much detail. I have been into this and I am assured that so long as the kind of circumstances in which such instructions can be given are clearly stated, the requirement will be satisfied, and it will certainly not be necessary to set out all the combinations and permutations of circumstances in which such instructions should be given. Noble Lords, on reading the rules, will see that they are drafted in this way, which they may or may not like. I can give the noble Lord examples if he wishes, but in view of the hour all I can say is that I have looked at this very carefully indeed and am assured that the words do what we want them to do and are apt for the purpose.
§ LORD DIAMOND
My Lords, I am grateful to the noble Lord. I entirely accept the fact that he has looked at the Amendment again and that it does what he wants it to do for his purpose. I only add that his purpose is to me, in this paragraph, as in the rest of the Bill, crazy. I seek your Lordships' permission to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ LORD DRUMALBYN
My Lords, on that note, perhaps it might be a good idea if we adjourned and had a little sustenance. I beg to move that the House do now adjourn during pleasure until eight o'clock.
§ Moved accordingly, and, on Question, Motion agreed to.
§ House adjourned during pleasure.
§ House resumed.
§ 8.0 p.m.
§ LORD DRUMALBYN
My Lords, I beg to move that this Bill do now pass. After some 28½ days—not to mention nights—of debate on this Bill, your Lordships will I think forgive me if I speak relatively briefly to the Motion, That the Bill do now pass.
931 I doubt whether many of your Lordships will recall any Bill which has been debated at greater length; and perhaps few which have been as controversial as this Bill. Despite this, I believe it is true and fair to say that noble Lords on all sides of the House have remained remarkably patient and tolerant; disagreeing—on occasions—vigorously, but without rancour; and co-operating responsibly in the task of examining most thoroughly every part of the Bill. I must acknowledge that my responsibility for piloting this lengthy and difficult Bill through your Lordships' House has been greatly eased by the restraint and good humour which your Lordships have shown, both to me and my colleagues on the Government Benches.
Your Lordships have appreciated that the Government have sometimes had to stand firm—occasionally very firm—in defence of what is regarded as the central provisions of the legislation. But I hope that even those who have had most reason to regret this firmness will be ready to acknowledge the extent to which the Government have listened carefully and responded to reasoned arguments on matters where some compromise was possible. On my reckoning, out of the 185 Amendments made to the Bill in Committee and 169 on Report, the House has agreed to about 135 Amendments either in Committee or on Report, which were tabled or prompted by noble Lords from the Benches opposite. Most of these were moved by the noble Lord, Lord Diamond, and the noble Lord, Lord Stow Hill, who have shown quite incredible industry. A number of these Amendments were, of course, on an identical point—for example, Lord Gardiner induced us to insert"knowingly"17 times. But there are a number of other Amendments which the Government proposed in part because of points raised in the course of debates in the House. As a result, I am sure your Lordships will all agree that the Bill has been greatly improved; some unnecessary causes of friction or disagreement have been removed; several problems which we had initially overlooked have been satisfactorily resolved; and a number of provisions usefully clarified. I do not think it a reflection on proceedings in the other place to suggest that this particular measure has 932 illustrated in striking colours the importance of a Revising Chamber. That is no small achievement; and I should like to repeat what I said at the end of the Report stage, and acknowledge not only the diligence of the noble Lords opposite but also their many constructive contributions.
The noble Lord, Lord Diamond, asked me to say something in the concluding part of the Bill about the stages by which the various parts of the Bill will be put into operation. I would only say that I do not think it will be possible to give much more information than I am giving at the present time. We cannot indicate in any detail the time-table for implementing the various provisions of the Bill. But in reaching a decision about Clause 5 in particular (and the complaints provisions in Clause 106 linked to Clause 5) the Government will have three considerations in mind. First, it will be necessary to ensure that the institutions which will adjudicate on complaints are in existence and are staffed and prepared to deal with the anticipated case-load. The industrial tribunals will need to be expanded, and the N.I.R.C. established before the right to belong provisions can be brought into force.
Secondly, there is a close connection between the rights conferred by Clause 5, and those conferred by Clause 22 (unfair dismissals). It would be desirable that these two sets of provisions should come into force at the same time; and the intention is that these safeguards for individual workers should both come into force as early as possible after the Industrial Court has come into operation. Thirdly, the Government recognise that the provisions outlawing the closed shop and safeguarding the right not to belong to a union should become effective only after unions and employers have had a reasonable period of time in which to convert existing closed shop agreements into agency shop agreements or to apply for an approved closed shop. In other words, the Government accept the need for a transitional period after the registration of trade unions starts and after it becomes possible to apply to the N.I.R.C. for an agency shop ballot or for the approval of a closed shop agreement before individual workers may make complaints under Clause 106 that their right not to belong to a union has been 933 denied. Under Clause 78 the Registrar is to set up the provisional register as soon as practicable after the passing of the Bill and to transfer every organisation which immediately before the passing of the Bill is registered under the Trade Union Acts 1871 to 1964. That is the first step which sets the whole process in train.
I am sure that your Lordships would not wish me, at this final stage to go over again ground which has been covered at Second Reading, in Committee or on Report. Perhaps you will allow me, however, to stand back from the detail of the picture and look at the general effect—the main objectives which this legislation is intended to secure. Why do we need this legislation, or any legislation governing industrial relations?
Most of us, I think, agree—perhaps all—that there is a need for new legislation in this field, even if some question the wisdom or practicality of all that the Government have proposed. This general consensus undoubtedly owes a great deal to the Commission headed by the noble and learned Lord, Lord Donovan, whose conclusions we have all found it necessary to refer to very frequently in the course of debates. But the agreement about the need for legislation seems to me to reflect three main thoughts which have been uppermost in the Government's mind in introducing this legislation.
The first of these considerations is the need for a restatement of the rights of the individual in a democratic and industrial society. It is often pointed out, by people of very different political loyalties, that the individual—whether as employee or as citizen—stands in great danger of being trodden under foot in the clash of large employers and strong unions. In a healthy society institutions and organisations must respond to, and reflect the aspirations of, the individuals they serve or employ; but as these organisations become bigger and more powerful it is easy for them to overlook this requirement. It is therefore a most important part of the Bill's objective to increase the rights of individual workers, to safeguard them from arbitrary or unreasonable treatment, and to ensure that the channels of communication between organisations and their members are satisfactory. The fact that the best employers and the best trade unions already do this is not a 934 reason for not legislating to require all employers and all trade unions to do the same. We regard this as essential in a just and tolerant society.
The second consideration which underlies the Bill's provisions is the increasing dependence—or interdependence—of different groups upon the goods or services produced by others; and the greater risk to life or health or welfare of substantial parts of the community from conflicts between quite small groups. Thus, while all agree that the right to strike is an essential freedom, there is an almost equally general conviction that this right must be exercised responsibly and with due regard to the interests of those who may suffer as a result. Noble Lords opposite, as well as speakers from the Government Benches, have on occasion expressed that conviction, even if they have disagreed with the measures proposed by the Government. By comparison with many other countries, the Bill imposes very few constraints on industrial action, whether by registered organisations or by others. It does, however, provide a variety of new measures or procedures for assisting the parties to industrial disputes to resolve them without recourse to industrial action. The emergency provisions are only one—and I would say not the most significant—set of procedures for ensuring that, so far as possible, parties settle their differences by negotiation, arbitration or conciliation rather than by industrial action. There are many other provisions which have a similar effect.
This brings me to the third, and perhaps in some ways the most important, objective: that is to strengthen and develop voluntary arrangements and agreements for avoiding, containing and resolving disagreements between employers and workers. The Bill can most realistically be regarded as giving a powerful stimulus to the voluntary reform of collective bargaining institutions and methods. It is certainly not concerned to establish an alternative, so-called"legalistic ", solution to industrial relations problems as a substitute for voluntary agreement. The Bill puts pressure for self-reform on both sides equally: on the unions, certainly, as well as on employers—and surely we need make no apology for that.
935 The trade unions will have to review, possibly in a fundamental way, their organisation and rules, not just because of registration requirements and the powers wielded by the Registrar, but because, to make the most of the new opportunities and challenge, they will have to provide a more effective service to their members. But the pressures on employers will be even more significant: through the code of industrial relations practice, through the provisions on unfair dismissals and disclosure of information, through the recognition procedures, and in many other ways. The Bill states clearly that the prime responsibility for good industrial relations rests with management; it is management which must take the initiative for reform.
In the course of our discussions the Bill has been criticised almost exclusively from the point of view of the trade unions. That is understandable in the circumstances. But it ought not to be thought that, simply because the trade unions think that the Bill goes too far in some respects in one direction, there are not others who think and have indicated that the Bill goes a good deal too far in the other direction. My right honourable friend has considered their views, just as he has considered the views put forward from the trade unions and from the other side of the House, and has sought to reach conclusions that are fair and equitable all round.
My Lords, I believe that the Bill constitutes a determined, a consistent and a far-reaching attempt to deal with the central problems of industrial relations, and bring them up to date. This is a forward-looking measure, and I confidently believe that time will prove that this measure is not only reasonable but effective. I commend it to your Lordships. I beg to move.
§ Moved, That the Bill do now pass.—(Lord Drumalbyn.)
§ 8.12 p.m.
§ LORD DIAMOND
My Lords, I am sure your Lordships will forgive me if I preface my remarks on the Bill by offering to all my colleagues, both Front Bench and Back Bench, my heartfelt thanks for the enormous task they have carried out and the enormous assistance they have given to me, especially on those 936 one or two occasions when the battle was waxing a little warm. I hope it would also be acceptable to your Lordships that I should single out for mention the noble Lord, Lord Drumalbyn, who has carried such an enormous burden and who has been throughout fair, attentive and extremely courteous—and it is an experience which I never had in another place. I am sure we are all very grateful to him. May I say how grateful I am, too, to the noble Earl, Lord Jellicoe, Leader of the House, for what I can only describe as enabling your Lordships' House to do its duty, I think the Opposition have responded appropriately.
There has been very full examination of the figures which the noble Lord, Lord Drumalbyn, has read out. I have in front of me a preliminary draft of the Amendments which are going to another place. As your Lordships may see, it is the size of a book; it is 57 pages long, and it is about the average length of a Finance Bill. It contains 341 Amendments which Members of another House will be asked to deal with. I should have thought that that illustrated on its own the voluntary work that has been done. I am told on the best authority there is that this Bill has been longer in Committee and Report than any other Bill, at least since the war, and that more Amendments have been made to this Bill in your Lordships' House than to any other Bill since the war. Therefore, we are completing the final stage of a record of some kind or other—and it is always nice to be in on the records.
Particularly am I grateful that we have been able to reach this stage with the understanding by the Government that the Opposition must have its say, and acceptance by the Opposition that the Government must have their way. As a newcomer and raw recruit to your Lordships' House, I was certainly delighted to notice that we were able to achieve all this on the basis of what I might describe as a sensible code of good practice, while carefully avoiding any kind of framework of unfair democratic practices. Perhaps this leads us on to another area where the same reasoning could apply, and that of course is the Bill. That is why there is an essential difference of view between us—because we believe that self-discipline, which is necessary, can be 937 encouraged in human beings in all walks of life, and that the provision of an excessive legal framework, with unfair industrial practices galore—and by"galore"I mean something over 220—is not the way to achieve improved industrial relations, which, as we all know, depend on human relations. There are major mistakes in approach in every clause of the Bill.
The Preface to the code, as I have said before, is good. But the Preface to the code refers to strong trade unions; it says that collective bargaining should take place between employers and strong trade unions. My Lords, we know that unions should be strengthened; we know that this Bill weakens trade unions. It attacks the ability of a union to organise in many respects; it puts unnecessary burdens on unions; it encourages splinter unions; and it prevents and attacks the very discipline which unions need to support the responsible elements within them and to discourage the dissident elements. It contains a quite absurd attempt to please what I can only assume is the anti-union faction in the Party opposite, by erecting, as a right, a decision against joining or a mere reluctance to join a union, thereby encouraging, as I have said, non-unionism. And all this is done as a balance to a statement which is claimed as the giving of a right—namely, the right to join a trade union—but is in fact no more than the repetition in a Statute of a right which already exists and to which we are committed by our international obligations. The presumption we spoke about this afternoon is an unfortunate one. I think it will have unfortunate results in weakening people's moral commitments to the agreements they enter into. I hope it does not; I fear it will.
I am sure that Part IV of the Bill, which deals with registration, serves to create two nations among trade unions, which is a most unfortunate approach, and is seen to be unfortunate and indeed absurd as soon as the practicalities are approached—either for example in the code of practice, or in the fair wages statement by the House of Commons. In either of those cases, one sees immediately that as soon as one comes up against practical points one has to disregard, and is encouraged to disregard, any distinction between trade unions, on the one hand, and organisations of workers, 938 on the other. That tells its own story. Therefore I say, as to the future—and I am sure your Lordships have heard enough speeches from me not to want to listen to a long speech now—I hope the Government will pay heed to the advice which they have been given on a previous occasion, and pay far more attention to the code and far less to the Bill. The Bill may be there as a long-stop. It would be encouraging if the Government could give the code a chance to work before implementing the more unwanted parts of the Bill.
It was the Solicitor General himself who said, I believe in addressing the American Bar Council only a few days ago, that this Bill would need much improvement in the future. It would seem sensible to me, therefore, that the Government should wait until the need and the areas in which improvement was necessary had clearly demonstrated themselves, and the legislation had been adjusted accordingly, before attempting to implement some of the worst aspects, and repressive aspects, of the Bill. The Bill at present represents a great shift to the United States situation of carefully prepared long-term strikes, which may be fewer in number but of course are much greater in terms of working days lost. Indeed, if the Bill succeeded in establishing an American position here we would to-day be suffering the highest strike figure ever, a figure of something like half a million workers out on strike. That is the comparable figure in relation to the American scene.
So I have nothing much to say in favour of this Bill. I am grateful for the way in which the Government have enabled this close and fruitful examination to take place; but as to the Bill itself I repeat that I think it will be at best irrelevant, and at worst it will damage greatly the unions. I think it will damage greatly industrial relations, and I think it will greatly damage national unity.
§ 8.21 p.m.
§ LORD BEAUMONT OF WHITLEY
My Lords, we on these Benches started our marathon on this Bill with two major reservations about it. First, we thought it was not an industrial relations Bill but an industrial disputes Bill, and in this we were joined by noble Lords in many parts of the House. Our second reservation 939 was that as an industrial disputes Bill we thought it was not really a very good one. We still hold to that first reservation. It does not begin to be an industrial relations Bill.
Throughout the debates on the Bill Members in all parts of the House have paid lip service to partnership, to communication, but often the lip service even to partnership and to any idea of equal partnership between the partners of industry has certainly been totally unreal. I should like to take as an example, as symptomatic of this attitude, the Government's reaction to various Amendments put forward by us and from the Labour Benches on the passage of information. They have met us on a number of points, but, for instance, on such points as that the information should be available not just for the purposes of collective bargaining but all the way through, which is, I think, a touchstone of what we think the relationship of management or capital to workers should be, they have failed. But in spite of many imperfections in the Bill (and there are still many) we do not any longer believe it is a really bad industrial disputes Bill. As my noble friend the Leader of the House said—the Leader of the Liberal Party—
§ LORD BEAUMONT OF WHITLEY
—later to be Leader of the House, said, it is a beginning from which an industrial relations Bill can be built, an overdue and useful base from which we can start. Perhaps from these Benches the wish that can most sincerely go out is that as quickly as possible we can get this Bill tucked out of the way and working as well as possible, so that on it we can really start to build up what industrial relationships are about in the twentieth century, a subject we have hardly touched on in the last few months.
I think the attitude I have described is shared by many in your Lordships' House and outside. The outright opposition of the Labour Party at earlier stages of the Bill did not, it was significant to see, command a great deal of support, from, say, the Cross Benches of your Lordships' House, which is an interesting touchstone; and, although it may well be said 940 and I take the point, that it is only on the Labour Benches that there are a very large number of people with immediate experience of trade union affairs, nevertheless I do not think that completely answers the point. To a certain extent if the trade union movement has felt that it had to resist this Bill tooth and nail, it has very largely itself to blame. Throughout the whole of my adult life, certainly, the air has been full of arguments, books, papers and articles about what is wrong with the trade union movement. Very often to the honour of the trade union leaders, they were put forward by the trade unions themselves; but in response to a tremendous amount of diagnosis, the progress made has been abysmally small and only a number of mergers to make a smaller number of trade unions, and other rather token movements like that, have been a sign of what has been done.
My Lords, we have made very considerable improvements to this Bill. I should like to lay claim to the fact that a number of these have come from the Liberal Party and from Liberal thinking. Together with the official Opposition, together with some on the Cross Benches, we have made some considerable improvements of which I should like to mention the increased publication of advice from the Industrial Commission to the Secretary of State, rights of representation on tribunals, concessions to professions and minorities, with which the noble Lord, Lord Platt, has dealt so well, and, most important of all, the whole question of the alteration in the majority needed for a ballot for an approved closed shop.
But there are still enormous gaps. Of these I shall mention only one. That is that there are very many people in your Lordships' House who are still not happy about Equity. If I may reduce the argument to its most basic point, I should say it was a point put forward in Committee by the noble Lord, Lord Conesford, when he said that the Government had made concessions to Equity, and they had. He said that the concessions they had made to Equity had made an enormous hole in one of the first principles of their Bill, which it has.
We on this side of the House feel a certain pity for the Government if, in 941 driving a coach and horses through one of their first principles they have not achieved, as we believe they have not achieved, anything for Equity because they would not go far enough. I hope that in the immediate future they will actually spend some time thinking how if the Secretary of State should be proved to be wrong on this point—as he has said with typical generosity, he might be proved wrong—the situation can be amended as quickly as possible without the delay needed to produce amending legislation in Parliament. But there have been improvements, thanks largely to the noble Lord, Lord Drumalbyn, and the whole of his team, who have been courteous and helpful in the extreme; thanks indeed to the noble Lord, Lord Diamond, and his team, many of whom have been highly constructive; thanks indeed to the service we have had from the servants of the House during a very long and difficult period.
My Lords, our Party voted against the Third Reading of this Bill in the House of Commons. They voted against it because of the inadequacy of discussion. We cannot claim that. The noble Lord, Lord Diamond, claimed that we had established a record for the number of days spent in Committee and on Report on this Bill. There were moments when one felt that some of his Back Benchers were determined to establish that record more than actually to do something to the Bill. But we have spent a great deal of time on it; we have done a lot and, in the knowledge that we have discussed fully and that we have improved this Bill, we on these Benches welcome it and welcome its passing to-night.
§ 8.30 p.m.
THE LORD BISHOP OF BLACKBURN
My Lords, I should like to associate myself with what the noble Lord, Lord Beaumont of Whitley, and other noble Lords have said about the improvements which have been made in the Bill by way of amendment. Some of us hoped that there might have been further improvements, particularly in those clauses which were not dealt with in another place and which it would have been more proper for us, perhaps, to amend. One of the features of these long debates which we have shared is the encouraging fact that for the most part we have seen a spirit of reasonableness and 942 tolerance and a respect for honest differences. This has been evident on both sides. It is this spirit of patience and good will that is essential if this Bill, shortly we hope to become an Act, is to be effective in improving industrial relations.
Upon the details of many clauses it was quite obvious that no agreement could be reached, and direct opposition was encountered. But upon the general principles of the Bill as set out in Clause 1, I think it is fair to say that there has been general agreement. But, of course, the difference comes in the application. I want to plead again, if I may, with my friends in the trade unions not to take up a permanent position of obstruction and non-co-operation. I know that there are some aspects of the Bill that are not, at their face value, acceptable, but in my opinion it is irresponsible to refuse to co-operate in the Commission on Industrial Relations or to take part in the tribunals so that unions can press their claims and state their point of view. If they absent themselves, it seems to me that they are "selling the pass", and to my mind it is foolhardy to have their names taken off the register.
The Government have committed themselves irrevocably to the principle of collective bargaining, which can be effective only if there are strong representative trade unions which the Government again and again have declared they desire; but the noble Lord, Lord Diamond, accuses the Government of exactly the opposite. In the code of practice, the consultative document upon which all interested agencies are asked to express their opinion—and I hope they will; and in our own small way I have gathered together a group of people in my own diocese, management, trade unions and representatives of the Church, in order that we may express an opinion about this code of practice, and we shall hope to send in our findings by October 18—the Government policy is spelt out, to set the standards and give practical guidance on the conduct of industrial relations and the development of policies to improve human relations. Again I want to underline this point. This is the all-important issue; the whole question of human relationships, in that we are concerned with people—employers, employees and, not least, consumers. What is required is 943 a reasonable and constructive approach by both sides looking to the future, seeking the solution to the problems which must clearly exist (none would deny that) by making a real effort to understand each other's point of view and to abide by agreements which have been made.
I venture to think that there is need for a reform of the structure and the discipline of the trade unions, and I believe there is another great issue that has to be dealt with; that is, the reform of company law which in my understanding is based on principles that are long out of date and are entirely inappropriate to the present climate of opinion and practice. There is much at stake, as we all realise. There is the future of progressive industrial production and prosperity, which can be achieved only through an active partnership and willingness to co-operate. There must be a willingness to meet together, to talk together, to plan together and to work together, and I plead for that spirit of conciliation, co-operation and good will, and on both sides, as we face the future.
§ 8.36 p.m.
§ THE MARQUESS OF SALISBURY
My Lords, I have not hitherto intervened in the long debates upon this Bill, partly because I did not wish to impede its passage and partly because I did not feel truly qualified—and, indeed, I approach the subject with very great diffidence now. I am not an economist, or an industrialist, or a trade unionist. I am what I suppose in this context might be regarded as a backwoodsman, and I feel it is rather an impertinence for me to intervene in these discussions at all. However, there is something that I feel very deeply, and I hope your Lordships will forgive me if I take a few moments of your time to mention it on the last stage of this vitally important Bill. Although I am afraid that numbers of your Lordships may say that what I have to say is of a very general character indeed, I think it is not irrelevant to the subject that we are discussing this evening and on which we have been engaged for so many weeks, although it is very different from the detailed technical points that up to now have engaged the attention of your Lordships to-day.
I mention it now because I have come sadly to feel that even in this House 944 there are some noble Lords who accept as a basic fact, in their heart of hearts, that capital and labour are forces inevitably opposed to each other and that nothing can alter that. I know I am one of those who would be regarded by many noble Lords on the other side of the House as being very far to the Right, but there is one great prinicple in which I have always believed. It was indeed the theme of one of my earliest speeches in another place over forty years ago, and I am sure that the noble Lord, Lord Beaumont, at any rate will agree with what I am now going to say. If we in this country are to prosper in the world, in our domestic affairs and indeed also in the wider fields of international affairs, it can only be if, each and all, we regard ourselves, to whatever section of the community we belong, as members of one body, like the members of a human body, dependent one and all for our good health on the good health of all the other sections of the community. And this applies, among other things, to industry, whether to employers or to employed.
I may be told that there is nothing very new about this doctrine, which I believe would now be called by more modern people,"old hat ". It is to be found in St. Paul's Epistle to the Galatians; it is to be found in Shakespeare's play, Coriolanus. But, my Lords, though it be very old I believe it is still as true to-day as ever it was, and it is the basis of the whole of that great system of conciliation which we have built up in this country over the centuries. There may be a natural tendency in those who direct our industrial affairs (and this applies to both sides) always to hope for a 100 per cent. victory. That is, after all, human nature. But, my Lords, to insist on always standing out for that—and this applies equally to employers and employed—may well be the short cut to disaster, if not for the leaders at any rate for their followers. And if I am told that that is a glimpse of the obvious I would reply that it does not seem so obvious to a good many people in responsible positions at the present time. To me, at any rate, this was brought home very much by something I listened to a few weeks ago on the wireless. It was a conversation between a representative of the B.B.C. and two workers involved in the Post Office strike. It was 945 one of the saddest things I have ever heard. The last thing that these men were was Communists. They were ordinary, decent, British working men, with homes and wives and children, and loyal to the union to which they belonged. How had the strike affected them? One had thrown up the sponge altogether. He had left the Post Office and taken other employment. He was therefore, for the time being at any rate, out of his troubles. But the other had remained loyal to his union and to his employment. And what, my Lords, was the result of that for him? He had used up all his savings, he was in trouble over a mortgage for his house, he had lost all hope of enjoying a holiday this year and possibly the next, and he was thoroughly down in the dumps.
I am not in any way criticising that man. As one listened to him, one could only admire his decency and loyalty. But is that really a sensible way of settling our disputes? Indeed, my Lords, what can the leaders of either party in industry, employers or employed, ever really gain by stubborn reluctance in the early stages of disputes to resort to conciliation? Who benefits by such methods of settling industrial disputes? By such a policy, we are just bleeding ourselves to death, and that, I believe, is the last thing that the ordinary working man or, indeed, any noble Lords on the other side of this House, really want.
I am not saying this merely in criticism of trade unions. What is sometimes said of trade unions is of course equally true of employers and investors. Each stands to lose by standing out for 100 per cent. victory. They may ruin the prosperity of the company concerned: they may go far to ruin their country. Is it any longer reasonable in the world in which we live to-day to regard as predestined and inevitable enemies, capital, in other words, those who lend money to industry—and labour, in other words those who lend labour to industry? Ought we not rightly to regard them—as I would think was apparent in the speech made to-night by the noble Lord, Lord Beaumont of Whitley—and ought they not rightly to regard themselves, as partners in a common enterprise, working together for the common advantage; as members of that single body of which I spoke at the beginning of my remarks? 946 My Lords, I know that I may be told that this is poor academic stuff, absurdly over-simplified, and that if I knew anything about industry I would realise that such a partnership between capital and labour was impossible, that neither would trust the other sufficiently for any such system to work. I have often been told that by friends of mine who are practical industrialists, which I am not. But I would reply to them that they are living in the past. They simply do not understand the vast change that has been taking place in the last few years. To-day, different from what was the position even a quarter of a century ago, forces are being mobolised on a national scale and, if we do not mend our ways, we might well move towards something that might soon not be very far removed from civil war, a cold war of course but civil war all the same. And that, I believe, is being exploited only too often for political and not for industrial ends, not by the ordinary working men and women I referred to above, and certainly not by men like the noble Lords that I see facing me to-day, but by a very different type of people—extremist politicians who have not the welfare of this country at heart, but only wish to bring down the present system of society. That is the situation that surely ought not to be allowed to continue if we are ever to regain entirely our economic health.
But what is the remedy? Not, clearly, anything that amounts to any illegalisation of a withdrawal of labour. In any country based on free labour, that is something which would never be accepted, and none of us would wish to accept it. What is needed is something quite different, as I understand it. It is a recognition by the leaders both of capital and of labour that victory in any differences between the two is not the object to be sought by either side. For, as in the human body, so in the body politic, injury to one element is bound in the long run to be an injury to both.
One of the wisest of our trade union leaders, the present President of the Trades Union Congress, Lord Cooper, recommended (I read this in the Press in the last few days) compulsory arbitration as a posible cure for our industrial ills, instead of what he called—and I quote his own words—" the anachronistic strike weapon." It is not for me to say whether 947 that is the right solution; but what is surely to be aimed at is by strengthening our machinery of conciliation to try always to find the greatest common measure of agreement between the two parties before the final weapon of strike is brought into operation: and that, my Lords, surely is not always the position now.
I fully realise that to many of your Lordships I may just seem an old man dreaming dreams; but I am so impressed by the dangers facing us at this very time, when through discoveries of science, the outlook for the world ought to be brighter than ever before, that I have made hold to speak to your Lordships this evening. And if I am asked what has all this to do with the Bill? I would answer that if this Bill is calculated to assist in any way and to strengthen those forces of conciliation of which I have spoken, then, even if we do not agree, as obviously we cannot agree on all of the actual proposals, it is surely worth our while. wherever we sit in this House, to give it sympathetic consideration and to regard it, not as something to be killed (and there are some people undoubtedly, not in this House but outside, who would very much like to kill it), but—and I emphasise this—as a first step in a genuine attempt to put our whole industrial structure on a newer and better basis, a basis not of conflict between inevitably opposed forces, but of co-operation in a common aim between members together of that same body of which I spoke to your Lordships at the beginning of my speech.
§ 8.49 p.m.
§ LORD HANKEY
My Lords, I greatly hope that I may be allowed to say one or two words from these Benches at the conclusion of this debate. I have greatly admired the objectivity and sincerity with which your Lordships have dealt with this Bill. I think there have been remarkable teams on both Front Benches. They have studied their cases most carefully and have put their problems very fully before the House. In this House we have people with vast personal experience of industrial relations—and what very valuable advice they have been able to give us! I have been very impressed by contributions, for instance, from the noble Lord, Lord 948 Thorneycroft, and the noble Earl, Lord Balfour, and on the other side the noble Lord, Lord Brown among employers. And as regards the trade union leaders, what a tremendous advantage it also is that this House has the advice of the President of the T.U.C., the noble Lord, Cooper of Stockton Heath, his predecessor, Lord Collison, and many others. If I may say so, I have also greatly admired the way in which the Front Benches have conducted their own industrial relations.
The passing of this Bill really represents the end of one phase of the permissive society, permissiveness in industrial relations. The Swedes ended theirs in 1936. The Germans did the same in 1946—with our help. We have suffered grievously by leaving our own action until so late. But now, in the new and more sensible and more just legal framework created by this Bill, I believe that there is at last a chance for our industrial managers, with their great expertise, and for our many great trade union leaders, to secure real control of the situation. Obviously, no law can force people to co-operate effectively or to be sensible in assessing their own best interests. Moreover, we cannot ever abolish strikes; that is axiomatic. But the new framework is now set, and it will be much easier for leaders on both sides to play an effective part, if they have the guts to do so, and to make and ensure the execution of good collective agreements.
It is now primarily up to management to seek good labour relations within the new framework, but especially it is up to them to manage. I hope we shall hear no more of slackness in preserving proper time-keeping and discipline and quality control. We are really all fed up with costly inefficiency being excused by the danger of unofficial industrial strikes. Similarly it is up to the trade union leaders to keep their side of the house in order. I hope we shall hear much less now of apparently absurd wildcat strikes, half protected or half condemned by unions and branch secretaries who have been rendered impotent by the state of our law. Let the unions build up now a network of highly trained responsible shop stewards and branch secretaries. They are the N.C.O.s of trade unionism. What use is an army without good N.C.O.s? Train them, instruct 949 them as to their powers, define their responsibilities. I believe the unions will have to do this now in their own interests. Just the same applies to supervisors, foremen and junior management of all sorts. It is time industrial relations ceased to be a haphazard amateur affair. I hope this rather elaborate Bill will ensure that those concerned in industrial relations really have to receive adequate instruction and training.
I have sat on these Cross-Benches throughout very many of your Lordships' debates in order to learn a peat deal more about industrial relations from those who have had great experience in them. Especially I hoped to learn what is the rival policy of those who most dislike this Bill. I am rather surprised to have formed the impression that they mainly aim to go on chipping away, as we have done for years past, and hoping for the best. I believe sincerely that there really is no future in that. The people of Britain would not stand it any longer; not even a Labour Government, I believe, could stand it. Therefore I say, let us now bury these controversies. Let all men of goodwill rally together and give the new system a proper objective trial. In our industries and in Britain generally we have fussed and disputed so much about the correct distribution of the industrial cake that we have totally ignored the fact that our cake by comparison with the cake of other nations has been getting steadily smaller. We must now look to the cake itself.
For frankly the economic outlook has now changed. We have far bigger fish to fry, and an incomparably greater challenge and opportunity lie before us. Are we going to lose our chance of revived prosperity while we pursue our futile social and industrial"Wars of the Roses"that have already inflicted such enormous damage on our industry and exports? In the 15th century the actual Wars of the Roses led as a major factor to poverty and sorrow at home and to the loss of all our European possessions in France and the expulsion of Great Britain from Europe. The peace imposed by the Tudors led to another period of greatness and prosperity. The Civil War of the 17th century equally led to a tremendous decline and to the Dutch 950 sailing up the Thames. But our fortunes recovered when order was restored.
Now we are ending the more unnecessary industrial quarrels of this century, or so we hope. There will be a far better system of collective agreements. No longer should a few wildcat strikers, without any serious organisation or backing, be able to close down any of our great shipyards, our factories or our docks, with total impunity. It is up to both management and unions to regain control in the new and (to our own people) novel framework created by this Bill.
I say again that we have much bigger fish to fry. I agree entirely with the remarks of the noble Marquess, Lord Salisbury. The European Economic Community are offering us and our friends an honoured place in their highly expansive economic system so very close to our shores. I believe it really is certain that we shall accept. We should be utter idiots to refuse and the British people have never, thank God!, lacked sound common sense. The American economy is now recovering. There is a strong probability that world trade will now expand faster again. Our exports should, and really must, perform creditably if we are to maintain our balance of payments in this new period of expansion. Otherwise we shall get more"Stop-Go"and lose yet more industrial investment. Is this the moment to go back to our endless industrial wrangling and disorder, with failed delivery dates, lost orders and cancelled investment intentions? Only the Communists, who seek to exploit our differences and our difficulties, could propose such a thing, and I suggest that we really must begin to look out for what they are doing.
My Lords, there really is only one decision possible when it comes to the point. Of course our trade unions, with their great traditions and experience, and our managements with their great expertise, will face this challenging new situation and will make the new system work, especially as it brings to our workers rights and opportunities that they have never had before, and especially as both unions and management will be very much stronger. This is not the end of an old era that began in 1871 or 1906. I believe it is the beginning of a new era that begins in 1971. I appeal to both 951 sides to see that we bury our differences and go forward to try this new system out together, with faith, hope and determination.
§ THE EARL OF CRANBROOK
My Lords, I had not intended to intervene this evening in any way, but I hope that at this stage of a very long Bill we shall not have too many read speeches.
§ 8.58 p.m.
§ LORD SHACKLETON
My Lords, I was about to say that I understood that the Motion that was before the House was that the Bill do now pass. To noble Lords who sometimes think that Commons tactics have been introduced to your Lordships' House, I may say that we have always applied the rule very austerely to the Third Reading that the only discussion was on what is in the Bill—not what ought to be in the Bill or the social consequences which go wider. I have only one request to make at the beginning, and that is that the noble and learned Lord who sits on the Woolsack, who has always found it impossible to resist a philosophical argument, will not on this occasion be tempted by the noble Marquess, Lord Salisbury—for whom, may I say, we have the deepest respect and liking—or indeed (I do not know how to describe it) by the speech of the noble Lord, Lord Hankey. I think I will stick to the House of Commons rule and leave it there.
In the few remarks I have to make—having started the opposition to the Bill and being allowed to end the opposition to it, but having made practically no contribution in between whiles—I should like to pay my tributes. I think that the noble Lord, Lord Diamond, and the noble Lord, Lord Drumalbyn, ought to receive some special order of merit whether for pertinacity, courage, or obstinacy I am never quite sure. I think they have done extraordinarily well, and I appreciate the determination of my noble friends on this side. They have worked extraordinarily hard, and I hope another place will appreciate how hard—my goodness! they are going to see the consequences of this—this unpaid House has worked.
My Lords, the noble and learned Lord did twit me (actually when I was not 952 here, but I make no complaint of that) when we had a debate on industrial relations before we started on this Bill, and he even suggested that the determined opposition which I had promised might be lacking. I do not think any noble Lord would think that now; but I should like to say to noble Lords opposite—and some of them may have doubted this, and may have some slight reason to doubt it—that we really have been determined to do a job on this Bill, and although it is occasionally the case that some speeches are longer than perhaps others would wish—and there have been feelings on both sides of the House with regard to this—the fact remains that in order to do the sort of job we have had to do on this Bill (which, let us face it, was due to the events in another place, with regard to which I make no criticism) we have in fact had to do a House of Commons job.
For those of us who thought we had escaped from that sort of thing, this has meant at times that there has been a rather painful resemblance to the activities of another place. I have no doubt whatsoever that if we had not been prepared to do this it would not have been possible to make the improvements that have been made, and I should like to say to noble Lords opposite that I am grateful for the tolerance they have shown. I know that some have on occasions been very tempted to say that we are changing the nature of the House of Lords. I assure them that we are anxious to preserve the unique qualities of this House, and we shall do so more easily if the Government never bring a Bill like this before us again.
My Lords, it would also be right—and I am glad that the noble Lord, Lord Diamond, mentioned this—to thank the staff who have shown enormous courtesy and have fed us, sometimes when the noble Lord, Lord Drumalbyn, and the noble Lord, Lord Diamond, got out of control from the Whips and insisted on stopping us so that they could get refreshment. I always felt that the Whips at those moments did not want them to stop because this would speed up the proceedings. But we have been fed and well looked after throughout this period. Many noble Lords on my side of the House, who normally are not with us as much because they are busy, have 953 contributed, like the noble Lord, Lord Archibald and the noble Lord, Lord Bernstein, and they have made great sacrifices to do so. I am only sorry that noble Lords on the other side, many of whom with great industrial experience, many of whom I know had anxieties about parts of the Bill, felt out of loyalties, which we understand, that they were not able to make a contribution. Luckily there are one or two mavericks like the noble Viscount, Lord Massereene and Ferrard, and Lord Balfour, who did occasionally break out and, as a result, successfully prolonged the debate for another two or three hours and provided an enjoyable change.
My Lords, I think your Lordships have done a worthwhile job, and I think that the Government Front Bench have been wise to allow us to do it in the way we thought it should be done. We always reckoned, as the noble Lord, Lord Diamond made clear, that the Government in the end would have their way. Indeed, it was some weeks ago that I forecast that this Bill would come to its final stages sometime between ten o'clock and two o'clock in the morning on Tuesday, this day. I am sorry to say that I miscalculated a little. But although we are exchanging these courtesies and it is right that we should do so, nothing should alter the fact that we do think this a very bad Bill. Sometimes noble Lords opposite are inclined to think that the Opposition really just do their job of opposition because it is their duty, and that they do not have strong feelings. The length of the debate has been dictated to a large extent by the strength of the feeling, by the anger, that has been felt. I could not agree less with the statement that the noble Lord, Lord Drumalbyn, made that this Bill was a powerful stimulus to voluntary co-operation and is not legalistic. It is precisely the opposite, and it is because we are of the opinion that this Bill will stand in the way of reform (we fully acknowledge when noble Lords say there is need for reform in industrial relations and trade unions, and it is also fully acknowledged that further stimulus was necessary) that we believe that the changes that noble Lords opposite want will be produced by the sanctions in the Bill and not by voluntary co-operation. The changes will come because of the threats implied 954 in the conditions of those who do not register and because of the sanctions that are included to deal with certain breaches.
My Lords, I do not believe this is a balanced Bill. I do not believe this is creating the sort of justice that the noble Lord, Lord Hankey, spoke about. Fine words in this matter do not solve problems of social and industrial relations; and when the noble Marquess, Lord Salisbury—and I will be tempted this far in the matter—seeks his fairness between capital and labour, I can only say it is the injustice that still remains in our society that makes it difficult to achieve satisfactory relations. I will be drawn no further than to thank noble Lords in the House for the tolerance and kindness we have been able to show one another. Quite frankly, I think we have surprised another place very much indeed.
§ 9.8 p.m.
§ THE LORD CHANCELLOR
My Lords, the noble Lord the Leader of the Opposition said that he had prophesied that this Bill would end its stately progress through your Lordships' House somewhere between 10 o'clock and 2 o'clock this night, by which I can only infer that he thought that I was likely to speak for something between 50 minutes and five hours. I hope to disappoint him by falling altogether outside that generous bracket. I think I would be less than generous if I did not first of all acknowledge the deserved tributes paid to my noble friend Lord Drumalbyn, and my noble friend the Leader of the House. Each, in his different sphere, deserves them, and I think both would like me to acknowledge them to the sources from which they so generously came. I am not sure that they would like me so much to endorse them, but I shall endorse them just the same.
It is not the first time that I have spoken from this rather isolated position in a more or less detached spirit. I think I should also say that this debate was greatly signalled by the intervention of my noble friend Lord Salisbury. I came to this House 21 years ago, I am ashamed to say, and I can remember what an immense position the noble Marquess then held. I personally have been delighted that this evening we have seen him in the very best form, and can 955 realise the great fund of idealism and patriotism which underlies everything that he says and does, combined as they both are with an extraordinary felicity of expression, which again he demonstrated to us all to-night.
Listening to this debate, I have been wondering what one could say in response to the various points that have been made. I think I can begin by taking the speeches almost in the order in which they were delivered. One has to recognise—and this is the point at which I must speak directly to the Opposition Front Bench—that whatever else can be said about this Government in producing this Bill, they were responding to public opinion and they were carrying out their Election promises; Election promises spelt out in considerable detail, and public opinion expressed over quite a prolonged period of time. When I first became Chairman of the Conservative Party in 1957, many years ago now, one of the first things I did was to find out what people were saying about us, the Government of that day. The criticism which was made most frequently was that we had done nothing whatever about the situation in the industrial world, this very world of industrial relations, and this very point of the relationship between trade unions and industrial unrest. So far as I can judge, this has been the continuous attitude of the public throughout this period of time. I think the trade unions would be wise to remember that this has been so.
At the beginning of this period I was almost as convinced as they are that my own Party particularly would be unwise to handle it, and for a long time I resisted the theory that we should handle it at all. This was not because I did not think it ought to be handled, but precisely for the kind of reason that noble Lords opposite have given so often, and so vigorously, during the course of these prolonged debates. I came to the conclusion that I was wrong, not only because, but partly because, public opinion quite clearly demanded that something should be done. In addition, I came to the decision that I was wrong because I came to the firm conclusion, as the Donovan Report did—though I did not entirely support it in particular, and rather before it delivered its conclusions 956 —and felt absolutely convinced that a legal framework was essential if further progress was to be made.
I say this not because I do not believe in voluntary negotiation, and not because I do not believe in settlement without recourse to law. Nobody who has practised my profession as long as I have has any love for litigation as such. I came to this conclusion because I became convinced, over the course of a long lifetime, that good conduct, desirable as it may be in various spheres of life, is never attainable on a social scale unless it is underpinned by a framework of legislation or legal rules. This is the one thing which was conspicuously absent from the trade union field and present in the field of the limited liability company, as I have pointed out in every debate we have had.
This leads me to say, in reply to the noble Lord, Lord Beaumont of Whitley, that there is plenty to be said on the front that closer participation between management and the unions, between management and the employees, might be a highly desirable object and might even be the pattern for the future, but that participation will not take place without this Bill. It will take place after this Bill. I am not proposing to argue whether the Bill's proper title should be"industrial disputes"or"industrial relations ", because obviously it is dealing with both and obviously the kind of participation we wish to see between management and employees, even if it requires legislation, as almost everything does in the modern age, can be achieved only by means of initiatives passing between management and employees' associations. I do not really differ in principle from the noble Lord on that proviso.
The right reverend Prelate the Bishop of Blackburn said something which I hope will be taken to heart. It comes better from him than from me, because perhaps he might be taken as disinterested, though sometimes I doubt whether the Church is any more disinterested than politicians. Perhaps on this occasion the Church will be listened to, if I am not. I would sincerely say to trade unionists, who have fought this Bill so hard, that they would be wise to recognise, as I think they will in the end, two or three simple things. The first is that this Bill represents the will of the 957 electorate, not simply the decision of the Government. And they would be unwise to defy the electorate, even though they may, with one or two cheers from one another, defy the Government. People want a Bill of this kind. This one may have its defects, but they would be wise, as well as patriotic, if they ceased, now that it is going to become law, from these violent diatribes and did not try to defy the will of Parliament and those who elect Parliament into being. I hope that they will do so. I think that they will find that on our part we are only too anxious to receive them and welcome them, if they wish to speak to us and discuss their problems and difficulties with us. I think that some of their suspicion is due to their reluctance even to talk directly with us or with members of the Government, and I hope that that will be remedied. I hope that they will heed what the right reverend Prelate said about the Commission on Industrial Relations and the various other institutions which are set up by this Bill. The French have a saying,"Les absents ont toujours tort"—those who are absent and walk away are always wrong. I believe this to be universally true, and I think that it would be wise to take this to heart. The time has come when these diatribes ought to cease.
I have spoken earlier about my noble friend Lord Salisbury and I welcome the intervention from the Cross-Benches by the noble Lord, Lord Hankey. I do not believe that this is a bad Bill. I would echo what the noble Lord the Leader of the Opposition has said, that if ever there was an occasion when your Lordships' House has demonstrated its usefulness, it has been during the course of this piece of legislation. And I venture to point out that the advantage has been reaped not by the Conservative Party but by the Labour Party and those whom they represent, because every Amendment which has been made, either by the Government without prompting or at the instance of the Opposition, has redounded to the advantage of the Opposition rather than of the Government. This, I believe, will also be true of trade union legislation. I ventured to point out before that all forms of collective bargaining over the last 150 years have consistently redounded to the advantage of the employees as against the employers. It is in the nature 958 of the subject that they should do so. This legislation, which introduces an element of enforceability into collective bargaining, is bound to help the employees, if they use their intelligence, rather than the employers, because the bargains made are generally for the benefit of the employees.
Just one more word, and then I have done before the time limit set by the noble Lord the Leader of the Opposition, and that is to our own supporters. Occasionally they have been rather twitted for their silence. I understand this, having been in Parliament since 1938. I have served in one or other House for almost the whole of my adult life. I do not think I have ever seen such a splendid piece of self-sacrificing public service as that which has been given by the Conservative Back-Benchers during the course of the passage of this Bill.
§ On Question, Bill passed, and returned to the Commons.