§ 3.37 p.m.
§ THE MINISTER WITHOUT PORTFOLIO (LORD DRUMALBYN)
My Lords, I beg to move that the House do again resolve itself into Committee on this Bill.
§ Moved, That the House do again resolve itself into Committee.—(Lord Drumalbyn.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The EARL OF LISTOWEL in the Chair.]
§ Clause 148 [Recovery of sums awarded in proceedings involving trade union or employers' associations]:
LORD DIAMOND moved Amendment No. 284A:
Page 109, line 5, at end insert (" or has not been used for that purpose.")
§ The noble Lord said: This is an important clause dealing with the recovery of sums awarded in proceedings involving trade unions or employers' associations and limiting the extent to which property is available to be used in satisfaction of claims made. The Amendment relates to subsection (2)(c). dealing with property which is precluded from being used for financing a strike. Property which is precluded from being used for financing strikes is not available in the satisfaction of claims which may be laid against the union. That is perfectly clear and, with respect, perfectly right. The question I am raising is whether we need to define those funds so tightly. What I am suggesting to your Lordships is that the essential fairness of the matter is served if, instead of having such a tight definition as "precluded". we have the alternative words of the Amendment, "or has not been used for that purpose."
§ There are two reasons for this. First, there will be organisations where funds have not been defined in a way which would satisfy the word "preclude" but whose funds are in fact not intended for financing strikes, and the evidence of that is the fact that they are not used for financing strikes. There may be a long period of practice to suggest that that in itself is a sufficient reason. But in addition the Government no doubt want 401 to hold the scales fairly as between trade unions and employers' organisations.
Your Lordships may recollect the provisions made in Clause 94, which of course are not identical but comparable and which relate to what are unfair industrial practices and the extent to which a person shall not be regarded as having taken the action mentioned—I refer now to Clause 94(3)(c) which says:
has contributed to a fund which may be available to such a party by way of relief in respect of losses incurred or to be incurred in consequence of the dispute,…
§ That is a very considerable concession which is made to employers and employers' organisations. I think it would be reasonable for that concession, which is not disputed, to be balanced by a reasonable, but not too tight, definition of funds which are not available for financing a strike. I beg to move.
§ 3.41 p.m.
§ THE LORD CHANCELLOR
I am grateful to the noble Lord, Lord Diamond, for his concise moving of this Amendment. He is of course quite right in saying that the purpose of Clause 148 is to discuss the funds both of employers' associations and of registered trade unions and unregistered organisations coming in the following clause, and the extent to which these funds should be available to meet awards made in the course of proceedings under the Bill. Broadly speaking, the assets of an unsuccessful litigant in any proceedings are available to meet a judgment debt. However, the noble Lord is quite right in saying that we have limited that as regards trade unions and employers' associations. Contrary to what I think he may well have led the Committee to suppose, they are both treated in exactly the same way in Clause 148(2)(c), which is the relevant paragraph which he now proposes to amend. Here, if there is a fund which the association of employers or the trade union is precluded from using to finance strikes, lockouts or other industrial action, that fund is protected from seizure to satisfy an award against that body, be it a body of employers or a trade union. I am glad the noble Lord endorses that: it seems to us to be fair. But, says he, is it not too tight? Ought it not to include the wordsor has not been used for that purpose "?402 He advances two arguments, one of which has a certain weight—but which I hope to prove to the Committee does not take him far enough—and the other of which I shall ask the Committee to say ought to be rejected. The argument which has a certain weight suggests that both employers' associations and unions will at this moment in time have funds which could be used to finance lock-outs, strikes or other activities listed in the sub-paragraph but which have not so been used in fact, for one reason or another. I think the answer is that the association of employers or the trade union, as the case may be, must make up their minds whether or not they wish to preclude that kind of use when the Bill becomes law. I think that it would be reasonable for them to ask for a period of reflection under the commencement provisions of the Bill. Otherwise it would be easy enough to point to particular funds which were not provident funds and could be used for general purposes, and to use them thereafter for one of the listed purposes once the Bill has become law and a new kind of obligation imposed on employers' associations or trade unions who are found to be guilty of an unfair industrial practice, to name the most obvious example. So the first argument would be reasonable if they were not being faced with a new legal situation which has to be considered in conjunction with their legal advisers, either now or after the Bill becomes law.
The second argument is, with respect, manifestly a bad one because the implication was that in this paragraph the scales were not being held equally between employers' associations and trade unions. This is manifestly incorrect. If you look at Clause 148(2)(c), it is clear that they are both being treated in exactly the same way. The noble Lord sought to introduce a reference to the totally different case of Clause 94(3)(c), which has different provisions relating to strike action, in the absence of an industrial dispute with him, against an innocent third party.
As the Committee will remember, there it is said that action against an innocent third party who is not engaged in an industrial dispute is an unfair industrial practice. It is then asked, "How do you define what is innocent?" and the answer is, that if you finance strikes or if you are a party to a strike you are 403 not innocent: you are supporting it. Then the question arises, "What do you mean by financing?". We had a long debate about that, and ultimately accepted the draft of the Bill which said that if you pay money directly in support of a strike that is financing it, but if you happen to belong to some trade protection association which may have an indemnity fund that is not directly financing a strike. It has absolutely nothing whatsoever to do with the funds which are available to satisfy an award against an unsuccessful litigant. In fact, unless the associataion was precluded from using it for indemnity purposes—in which case Clause 94 would not bite—unless I am mistaken, such a fund would be available to meet the award of compensation for an unfair industrial practice under the Bill. The unions and the employers' association are treated in exactly the same way under the clause, and the analogy which the noble Lord, Lord Diamond, sought to draw has, with respect, no bearing on the case at all.
Obviously, when one is passing legislation one wants to prevent people driving a coach and horses through the provisions of that legislation. We are in the course of passing legislation, and, so far as this Committee is concerned, it accepted clauses which provide for the award of compensation against employers' associations and against unions. It is obvious that when we have done that, we mean those awards to be honoured out of the funds of the unsuccessful body. If we made a provision that parts of that banking account and those funds which have not been used to finance strikes or lock-outs could be immune, it would be very easy indeed for a union or an employers' association to switch from one to the other at will and to build up a fund and use it to finance a lock-out or strike. In other words, it would render the whole process of enforcement nugatory. I am not accusing the noble Lord, Lord Diamond, of intending that result, but that, none the less, would be the result, and it would be to make a nonsense of the clause that we have already passed. So I would respectfully urge the Committee to reject the Amendment if it is pressed, but, far better than that, I would ask the noble Lord to withdraw it when the debate is concluded.
§ LORD POPPLEWELL
There are certain funds now that are provident funds of a trade union, registered under the Friendly Societies provisions. Those funds cannot be utilised for the purpose which the noble and learned Lord indicated some unions might desire to use them, by transferring some of the funds into their general funds. If they attempted to do anything of that description they would be violating the terms of registration which they now enjoy.
§ THE LORD CHANCELLOR
That is correct. Such funds would be immune under the terms of the clause, as drafted. It is exactly that kind of fund which it was designed to protect by the terms of the clause, as drafted, and without the Amendment.
§ LORD DIAMOND
Perhaps I can offer two short comments on the matters as to which the noble and learned Lord and I disagree, and then come back to the more important matter of the area where we are agreed and where perhaps some progress can be made. Where we disagree is that I am being in any way unfair to the Committee in suggesting that in practice this clause has an effect against the unions, whereas the earlier clause has an effect in favour of the employers. It is true that the clause we arc considering is drafted, on paper, to apply equally to unions and to employers' associations; and the noble and learned Lord will agree immediately that the Amendment that I am proposing would equally apply to both. So it is not a question of the drafting, or of a narrow legal view of it, but a question of what the practical effect is. In my view, this clause would have more practical effect vis-à-vis trade unions than it would vis-à-vis employers' organisations, whereas with the other clause it would be the other way round. That is why I sought to refer to the somewhat different arrangements applying under Clause 94 as an example of the reasonable attitude which I thought the Government ought to apply with regard to this clause and trade union funds here. That is the part about which we disagree, and we must continue to disagree.
What we are agreed about, I think, is that there are bodies which are now going to have new responsibilities put upon them, and are going to run the 405 risk of having new claims made upon their funds which did not exist at the time when they drew up their respective constitutions. They might not have drawn their constitutions in the way in which they would now do if they had realised at that time (which they could not have done) what new claims might be made. Therefore it is right that these bodies should be given a full opportunity of reconsidering the earmarking of their funds. Nobody suggests for one moment that a fund which, though not precluded in the terms of this clause, is not used for financing strikes could be protected from a claim and nevertheless could, in subsequent years, be used for financing strikes. What I am suggesting is that the constitutions of these various bodies would, in many cases, particularly, in my view, in relation to trade unions, be inadequate to deal with the precise kind of earmarking which the word "preclude" contemplates. Those bodies would not have dealt with it in that precise way, because there was no such great need as there will be once this Bill comes into effect.
It seemed to me, therefore, that the corollary would be that the noble and learned Lord should now say that he will consider whether there ought to be any interim arrangements (the interim arrangements being for as long as could reasonably be allowed) under which funds which have not been used for financing strikes would not be available to satisfy claims made under the new proposals of this Bill, so long as after a certain period (and one would give a period of a few years) the matter was clarified so as to satisfy the term preclude ". I hope that the noble and learned Lord will say that he can consider something along those lines, when I shall be happy to withdraw the Amendment.
§ THE LORD CHANCELLOR
I hope that the noble Lord will withdraw the Amendment. What I was seeking to say was that the provisions of Clause 160 already give that—assuming, of course, that the Minister does not bring into effect the parts of the Bill which would render unions or employers' associations liable overnight. I hope that the commencement provisions will be operated in a reasonable and humane way, so as to give bodies which might be affected by them an opportunity of considering 406 matters of this kind. I cannot believe that it takes years to do that, and I am not at the moment in a position to say how long those more experienced than I would think reasonable. But I certainly hope that Clause 160 will be used in precisely that way, among others. It is for that reason that it is so drafted that particular provisions can be brought into operation at different dates. I think that one of the many factors which my right honourable friend will take into account will be the need for unions and for employers' associations to consider the designation of their funds from the point of view of potential liability. I do not think that at this stage I can go further than that, although I will see that my right honourable friend is apprised of what the noble Lord has said, because basically I think he is right in saying that we are agreed that there is a reasonable point, and there may be funds the nature and constitution of which both unions and employers' associations may wish to reconsider before the new liabilities come into force.
§ LORD DIAMOND
I am grateful to the noble and learned Lord. He has put the point very well, and I ask your Lordships' permission to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ On Question, Whether Clause 148 shall stand part of the Bill?
§ LORD STOW HILL
There are some questions that I should like to raise with the Government Front Bench on the present structure of this clause. It seems to me, unless I have misunderstood the position, that there are some provisions in it which should be removed. I do not want to go over ground that we have already discussed. The noble and learned Lord may have broadly in mind the kind of considerations which I should like to urge, because they have already been to some extent discussed. We considered them, shortly at any rate, when we were considering Clauses 72 and 88. Clause 72 states what becomes of a trade union when it is registered. May I remind the Committee that Clause 72 provides that when a trade union is registered under this Bill it becomes a body corporate, and upon it so becoming incorporated all property and funds, of 407 whatsoever nature, for the time being held by any person in trust for the organisation shall vest in the organisation by virtue of the incorporation and without further assurance. Clause 88 provides for the liquidation of a trade union which is registered under the provisions of this Bill.
It is in the fight of those considerations that I should like to make some submissions to the Government. It is quite possible that there are circumstances which I have overlooked. However, these are the considerations: first, is there any need to have in subsection (1) paragraph (c)? The clause deals with proceedings against registered trade unions, that is to say against corporate entities. Paragraph (a) of subsection (1) deals with a situation where an award is made against an incorporated body. Paragraph (b) deals with the case where an award is made against the trustees of a trade union in their capacity of such trustees. Certainly that paragraph could play some role if there is a claim against a trade union in respect of relief which it is sought to obtain from the trade union. It is a very frequent procedure, especially in the Chancery Division, to join in the action against the trade union or against the incorporated body, whatever it may be, trustees who hold property on behalf of that body. I can well understand in the future that where a trade union has set up a trust and vested in the trustees, under their trust, property for them to hold on behalf of the trade union, an action or a claim may be brought before the Industrial Court, the parties being both the trade union, which is said to be the offending party, or the party which has rendered itself liable in law to pay compensation, and against trustees who hold property in trust for their union. So paragraph (b) certainly could play some part.
Paragraph (c) deals with what is known as the representative action. I cannot conceive of any circumstances, once a union has become a single incorporated body as the result of registration, in which, under any rules that have hitherto been promulgated, the rules of the Supreme Court, a representative action could conceivably be brought. If a writ was issued in a representative form 408 against the individual members of an incorporated body the inevitable consequence would be that there would be an action to strike it out as disclosing no cause of action. I should have thought that some similar proceeding would inevitably lie before the Industrial Court. I cannot think how such a proceeding before the Industrial Court could be got on its feet at all it would have to fail. I may be wrong, and I should be interested to hear what the noble and learned Lord answers with regard to that. Maybe there are circumstances in which such a proceeding could continue; for the moment I cannot conceive of it.
If there is no such proceeding, I feel sure that the noble and learned Lord will agree with me that paragraph (c) of subsection (1) should come out. He may well ask why, in those circumstances, the Opposition did not put down an Amendment to exclude that paragraph. The reason is that when we gave it consideration we wondered whether there was some situation, which we had not conceived, in which such an action could lie, and therefore on the Committee stage of the Bill we thought it preferable to probe and ask the Government for what purpose that paragraph was designed.
I ask very similar questions with regard to subsection (2). In asking the question whether subsection (2) can play any role, and whether it ought to be there, I exclude from that question that part of subsection (2) which is at the top of page 109, and which relates to property of the character that the Committee has just been describing, property precluded from being used for financing strikes, lock-outs or other industrial action. So may I frame my question as applying to that part of subsection (2) on page 108 of the Bill? If proceedings are brought against an incorporated body, upon ordinary principles one would have thought the only property which could be made amenable to satisfy any award in those proceedings could be the property of that body, or property held in trust for that body by trustees, and no other property. I cannot conceive what other property could be affected by an award against the trade union in this case, or, in similar circumstances, any other incorporated body. It could either go against the body itself. or against the trustees who hold property in trust for 409 that body in respect of that property which they so hold, or both, but it could not go against anybody else.
If that is right, what can be the purpose of enacting, as subsection (2)(a), that the property is excluded from the process of execution which belongs to a trustee of the trade union? It says that what applies to a trade union applies equally to an employers' association, "otherwise than in his capacity as such a trustee". I cannot think of any conceivable circumstances in which a trustee for a trade union should have to fear that the property which lie holds otherwise than in trust for the trade union, which he holds as part of his own personal assets, could be made liable to satisfy an award. Unless there is a situation which I have overlooked, I submit that paragraph (a) should come out.
I ask precisely the same question in regard to paragraph (b). That applies to property:belonging to any member of the trade union…otherwise than jointly or in common with the other members of it,".How can property, either owned by a member of the trade union on his own account, or by him jointly with other members of the trade union, possibly be made amenable to satisfy an award against the trade union? Is not there a trustee for the trade union? That paragraph is concerned with property which he owns, or owns jointly with other members of the union. I can put the question with regard to paragraph (c) in the same form: how could property belonging to an official of the trade union, who is neither a member nor a trustee of it, ever be taken in execution to satisfy an award? It seems to me that it could not possibly be.
The only part of Clause 148 which, if I may say so with respect, seems to me to be appropriate is one which in a sense rather states the obvious, namely subsection (3), which provides in effect that where there is an award against a trade union, the award is enforceable against the property of the trade union, either held by it or held in trust for it. and no other property. I would respectfully submit to the Government that the only parts of this clause which really should be retained in the Bill are subsection (1). paragraphs (a) and (b), part of subsection (2), which I have excluded from my question, and subsection 410 (3), together with the definitions in the fourth subsection.
My judgment is very fallible, as I recognise often, but I have given this matter thought and I would not have taken the time of the Committee unless I had given it some thought. I should be very grateful if I could hear what the Government reply is, so that, if necessary. either the Government or the Opposition can revert to the matter on Report.
§ 4.11 p.m.
§ THE LORD CHANCELLOR
I am very grateful to the noble Lord, Lord Stow Hill, for taking such a detailed and careful interest in the drafting as well as the policy of this clause. Broadly speaking, the only answer I need give, although I want to go into it a little more deeply than that to indicate that there may be more sense in the draft as it is than he suggests, is that we had already, as I understand, undertaken to reconsider this clause in connection with the debate on Clauses 72 and 88.
§ LORD STOW HILL
I am sorry. I should have reminded the Committee of that and I apologise for not having done so.
§ THE LORD CHANCELLOR
What I say is not a definitive answer because that undertaking stands and we are going to reconsider it. But the noble Lord will not forget, of course, that this clause is designed to reassure trustees, members and officials, and those organisations of employers and unions who may have funds of the kind to which the noble Lord, Lord Popplewell, referred a moment or two ago, that those assets, neither their private assets nor the funds, will be taken in execution.
As I understand it, this of course is not a retrospective clause, but there will be and there must be a number of pending proceedings against unions and against employers' associations at this moment. The clause is not retrospective but is prospective, but obviously if judgment is given in an action now pending after the passage of this Bill into law the standing of the assets must be defined by this Bill This is always the case when one changes the law and litigation may be, and indeed must he, pending. That is one of the factors to which the noble Lord may have given inadequate consideration.
411 It is true that subsection (4) of Clause 72 deals with pending proceedings, or purports to deal with pending proceedings, but this is only limited to proceedings against trustees; it does not extend to representative actions. And the noble Lord will not have overlooked the fact that trade unions or bodies which may become trade unions under this clause if they choose to register, may be registered under the existing law or may not he registered at all, because there is no obligation to register. They may be legal, strictly speaking. under the existing law or illegal under the existing law. Some of the best known trade unions prefer to keep a status, for various purposes of their own, outside the existing law. It may be that somebody can say with absolute confidence that such bodies, if they became trade unions, would be such that the assets of individuals and the personal assets of trustees and the personal assets of officials could in no circumstances be taken into execution in respect of proceedings, whether brought before or after the passage into law of this Bill. But personally I would not be so confident as all that unless I saw it plainly written into the Bill.
I have undertaken that this matter should be reconsidered. It is better to leave it there at the moment, and I will either write to the noble Lord or otherwise communicate with him when this consideration has taken place in connection not only with this clause but also with Clauses 72 to 88. But, in the meantime, I hope he will see that there may be a little more complication in the law than he at present considers. It is clearly true that when a trade union is registered under the Bill and the registration becomes permanent it becomes a corporation and its assets are those of the corporation and not those of the individuals who compose it. But there may be a difficulty about transition, and there may be a difficulty about pending proceedings. I am afraid I cannot take the noble Lord further to-day.
§ LORD STOW HILL
I am very grateful to the noble and learned Lord for what he has said. I certainly should have reminded the Committee that the Government had given an undertaking to go further into the matter when we discussed Clauses 72 and 88; I am sorry that I did 412 not. I of course have considered whether this clause could be designed to be applicable by way of a transitional provision. In every transitional clause I have ever read, among the countless ones I have studied in past years, my recollection always is that the clause specifies that it is applicable only in respect of proceedings pending either at the time when the Act comes into force or at the time when a trade union becomes registered, when the process of registration becomes effective; in other words, it is clearly specified in the terms of the clause that it is meant to have a transitional effect only. If that is the purpose of this clause, I hope the Government will agree that some words should be included which make it perfectly clear that that is the case. The Government have said that they will look at the matter again. I am very grateful indeed and I have no further comment to make on the clause.
§ Clause 148 agreed to.
§ Clause 149 [Proceedings against unregistered organizations]:
§ 4.18 p.m.
LORD DIAMOND moved Amendment No. 284B:
Page 109, line 41, at end insert (" or has not been used for that purpose.").
§ The noble Lord said: I beg to move the Amendment on the Order Paper. I can deal with this shortly. It is the same point as was previously discussed; it arose on a previous Amendment. But this Amendment is of course in connection with Clause 149, which deals with proceedings against unregistered organisations. I would not make the same speech all over again. The noble and learned Lord and I agreed that there was an area where further consideration ought to be given, further inquiry might be made. This is particularly so in connection with an unregistered union, because it is an unregistered union which is going to be particularly vulnerable and should therefore have very adequate time to consider this particular problem. All I wish to do is to say to the noble and learned Lord that I hope very much that in his consideration of the matter he has promised to consider under Clause 148, he will give consideration at the same time to the unregistered organisations under Clause 149.413
§ THE LORD CHANCELLOR
I think I can give that assurance, without necessarily endorsing every word that the noble Lord, Lord Diamond, said. As noble Lords will see from the text of Clause 149, the general policy is in this respect, though not in many others elsewhere in the Bill, to treat an unregistered association's funds very much in the same way as union funds, at any rate as regards the funds which are earmarked for a particular purpose. That being so, I think I will take on board what the noble Lord, Lord Diamond, has said, and that I can give him the assurance for which he has asked.
§ Amendment, by leave, withdrawn.
§ On Question, Whether Clause 149 shall stand part of the Bill?
§ 4.20 p.m.
§ LORD STOW HILL
I am most anxious not to burden the Committee with tiresome technical arguments but I think it is just worth while calling attention to one aspect of Clause 149 and I hope the noble and learned Lord will be able to give me a similar answer to the answer which he gave me with regard to the last clause; namely, that he will consider it for the Report stage.
This is the clause which with regard to unregistered unions makes provision analogous to, though not similar to, the provision made in the last clause with regard to registered unions. I think I can put the point that I want to put to the Committee quite shortly by saying that I think it is unfortunate that the Government, in framing this clause, did not set at rest the considerable doubts that exist under the present law as to what is meant by "property belonging to an unregistered union". These are not only my own personal doubts but, if the noble and learned Lord will have in mind the provisions of paragraphs 778 and 779 of the Report of the Donovan Commission, he will see the difficulty which I think arises and which might be set at rest if the clause is rather amplified.
Under the existing law, of course, unions can be registered, and they are registered under the Trade Union Act of 1871; and to abbreviate the general position which arises Section 8 of that Act 414 requires in a broad sense that property of a union registered under that Act must be vested in trustees for the use and benefit of such trade union and members thereof. That was considered in the famous Taff Vale case. Then the next paragraph goes on to deal with the case of unions which are not registered under the 1871 Act. It is quite short and I will read it. It says:The position of the unregistered union as regards the ownership of property is still to be decided.The provisions of the 1871 Act are being repealed, so that the effect of that Act in relation to trustees and unions registered under the 1871 Act will be brought to an end. So the matter is, as it were, at large and they, I suppose, would be in the same sort of position under the existing law, once that Act has gone, as an ordinary union not registered under that Act with regard to which there exists the uncertainty that the Donovan Commission points out. Nobody knows what is their property; it is difficult to define what is the property of such a Union.
In those circumstances, I hope the Government will agree that it would be desirable, now that comprehensive legislation is being introduced, to take steps to make clear to those concerned what one means when one talks about "property belonging to a union not registered under this Bill". All unions hitherto registered and all unions hitherto unregistered may qualify. Some will register and some will not register. As regards those who do register the position is made perfectly clear by Clause 71. But I submit that Clause 149 leaves uncertain still (as it always has been) the position of unregistered unions, which now will include unions which might have been registered under the 1871 Act but which will have been repealed.
Therefore the only consideration I would urge upon the noble and learned Lord is that it would be desirable to try to set those doubts at rest and to make perfectly clear what one means when one speaks of "property belonging to an unregistered union" that is to say, a union which has not registered under the provisions of this Bill. I shall he perfectly content if the noble and learned Lord is only able to say that he recognises that there is a problem there and that between now and the Report stage he 415 and his advisers will give further consideration to it.
§ THE LORD CHANCELLOR
It would be churlish of me not to say that we would give further consideration to this point, but I do not think I can offer a great deal of hope to the noble Lord. The problem—and I use the words in inverted commas for the moment—of the property of "unincorporated associations" is one of great complexity. I do not think it is more difficult in respect of trade unions than it is, for instance, in respect of the Oxford City Conservative Association or a members' club of any kind which has not gone in for incorporation. It is an immensely complicated field of property law and I do not think I could undertake with any hope of success to do more than consider what the noble Lord has said, because my immediate reaction to what he has said is that it raises the whole problem that one could not do for unregistered trade unions what one is not doing for football clubs and political associations and other bodies of no doubt reputable but various kinds which have not sought the benefit of incorporation.
So while I do not want to say that I will not consider it—because I will consider it—I will consider it without any great measure of optimism that I shall be able to give the noble Lord satisfaction in regard to unregistered trade unions alone.
§ LORD DIAMOND
May I ask the noble and learned Lord a question on this clause, which does not necessarily coincide completely with what my noble friend was saying earlier in regard to clause 148. but perhaps I misunderstood it. The noble and learned Lord did say—and I was glad to hear him say it—that on this clause, which deals with unregistered organisations he is, as opposed to the rest of the Government's attitude towards unregistered organisations. proposing to deal fairly with them. I do not know whether those were his exact words, but that is how I understood them.
§ LORD DIAMOND
That is what it means to me, at all events. Assuming that to be so for the moment, I do not follow, when reading those two clauses, why some of the predictions that were given under Clause 148 were not again spelt out in Clause 149. The answer might be that it is not appropriate to do so and that one cannot do so in this very complicated field of an unincorporated body—the tennis club or the Oxford Conservative Association—which manages to protect its funds against all those who would seek to lay hands on them. For instance, Clause 148(2)(b) says quite clearly that this subsection applies to any propertybelonging to any member of the trade union or employers' association otherwise than jointly or in common with the other members of it ".Not knowing anything about these things, I should naturally have liked to see that repeated in Clause 149. It may be, as I think my noble friend Lord Stow Hill was saying at an earlier stage, that Clause 148(2)(b) is not necessary because that protection is there in any event; and if the noble and learned Lord can tell me it is there in any event under Clause 149 that would be a satisfactory answer. I hope therefore that he will be good enough to explain in relation to the Government's philosophy on the protection of funds of individuals who are members of an unregistered unincorporated organisation, and in pursuance of that philosophy, why more protection is not spelt out in this particular clause in favour of the property of individuals.
§ 4.30 p.m.
§ THE LORD CHANCELLOR
I think when the noble Lord sees the OFFICIAL REPORT he will observe that what I really said (that is to say, if I said what I intended to say) was that the policy of this clause as regards earmarked funds was the same in relation to unregistered as registered bodies. I was not making any statement about the fairness of the provisions of the rest of the Bill, which of course are more than fair—they are generous to everybody, as everything done by this Government invariably is. Equally, I was not intending to say that in every respect the protection was otherwise the same except as regards earmarked funds. But I take the noble Lord's point. There is always a problem. 417 There has remained a continuing and complicated problem with regard to the liability of members of unincorporated associations for different kinds of malfeasance. The clause applies not merely to proceedings under the Act but to all civil proceedings, as the noble Lord, will see from subsection (2). Curiously enough, Clause 148 which deals with proceedings against the trade union and the employers' association which are registered, does not expressly say all civil proceedings, although it does specify the award of compensation or damages in any proceedings "whether brought by virtue of this Act or otherwise". In other words, it is limited to execution.
If you look at subsection (3) of Clause 149 you will see that this covers more than awards of damages; it covers also punishment for contempt, and therefore the language which is appropriate under Clause 148, with its rather more limited range of application, is not altogether appropriate to Clause 149. What is said is that the execution is availableto the like extent and in the like manner as if the organisation were a body corporate ".In other words, for this purpose it is treated as if it were a corporate corporation, although it is not; and although it is rather an inelegant way of expressing things, it is not, I think, tremendously different from the way in which the law treats a union now. A union not being a body corporate is for some purposes treated as if it were. This was I think finally decided in the Musicians' Union case. I have never been able, having read the case and Citrine on Trade Union Law many times for different purposes, to say to myself in plain and unmistakable terms why this should be so or exactly what the limits of the doctrine are. But the clause says in subsection (3):. . any judgment, order or award…(including any judgment or order directing the organisation to take, or to refrain or desist from taking, any action) shall be enforceable, by way of execution, diligence,"—"diligence", I take it, is a Scottish word, because it is otherwise unknown to me—punishment for contempt or otherwise, against any property belonging to, or held in trust for, the organisation, to the like extent and in the like manner as if the organisation were a body corporate ".I fancy that is a clarification, an addition, more clear than the existing law is.
418 I hope I have persuaded the noble Lord that there are factors in Clause 149 which, when one looks at it closely, are not identical with Clause 148. If in my earlier speech, I led him to suppose the contrary, I can only apologise; but certainly I will take on board what he said again. I think it does require consideration, and, as I say, all these criticisms will be examined before Report.
§ LORD GEORGE-BROWN
The thought that the noble and learned Lord the Lord Chancellor cannot address himself in plain language, as he was charming enough and happy enough to confess, is a matter of some considerable interest. I have always thought that was possibly true when I used to meet him in a different place. If he cannot address us in plain language I think it becomes a matter of some importance. If he really meant by all that rigmarole that he just went through (and pretty obviously if I may say so, most of the time he was consulting his brief while addressing the Judicial Bench, and I was not certain how far he was convincing himself of his brief), if he really meant that there is a nonsense here between Clauses 149 and 148. and if, to use his word, he was in less than elegant fashion assuring my noble friend Lord Diamond that between now and the next stage he will consult those who are concerned more deeply than he is to bring Clause 149 into line with Clause 148, then, speaking for myself, I am quite happy to accept that. But I am bound to say to your Lordships that the noble and learned Lord, the Lord Chancellor, did not carry me one little hit if he was intending to defend the difference between the two clauses. I see some other industrialists around this Chamber, and I do not think he carried them one little bit either. I beg your Lordships' leave to urge the noble and learned Lord, the Lord Chancellor, elegantly or inelegantly, briefed or unbriefed, simply to say, "Yes, of course there is a nonsense here, and we will look at it again and produce something at the next stage to bring the two clauses into line".
§ THE LORD CHANCELLOR
I am always delighted, and this is I think the first time I have had the opportunity, to welcome the noble Lord, Lord George-Brown, to our rather protracted 419 debates on the Committee stage of this Bill, and I am so glad that he has at last begun to take an interest in our proceedings. The only document I had in front of me, so far from being a brief, was my rather tattered copy of the Bill, my rather tattered bundle of marshalled Amendments, and a statement that we had undertaken to look at Clauses 72, 88 and 148 again. If he thinks I was reading from a brief, he is gravely in error.
So far as what he said is concerned, I do not think there has been a nonsense. I was trying to explain that the two Clauses deal with rather different subject matter and for that reason identical language was not appropriate. But obviously the penetrating character of his comments will be conveyed to my right honourable friend when we come to consider them with the other comments we received from the noble Lords, Lord Stow Hill and Lord Diamond.
§ 4.37 p.m.
§ LORD HANKEY
Before we leave this very esoteric question, I hope that I may say one word. There is one very important distinction between these two clauses: one deals with registered trade unions and the other with unregistered bodies. The unregistered bodies will not have submitted their rules to the Registrar. They may have any sort of arrangements, about their funds, or their members, or officials, or the way in which they hold property. One thing is certain: that these bodies will harbour the "wildcats" who have been the bane of the trade union movement in our country and have really pestered our industry. I think it would be desirable to record from these Benches a hope that when the Government do look again at this clause—and I agree that perhaps it needs to be looked at—they will bear in mind the vital difference between these two bodies and the necessity for dealing with them in different ways. I say that because I personally hope that one of the effects of this Bill will be to give such advantage to registered trade unions and set them up in such a well-recognised legal position that they will be in a far stronger position; but if we do not draw a distinction between them and unregistered bodies perhaps we shall not attain that very desirable aim of public policy.
§ LORD DIAMOND
May I ask the noble and learned Lord whether he will also look most carefully into these "wildcats", particularly—and he is in the best position to do this—the " wildcat members of the Oxford Conservative Club, to which we referred earlier and which is covered by this clause.
§ THE LORD CHANCELLOR
Far from being "wildcats", they had the wisdom and foresight to start my political career, which would otherwise never have got off the ground, and to maintain me there for 12 years of war and peace, and I shall be everlastingly grateful to those wise and prescient men and women.
§ Clause 149 agreed to.
§ Clause 150 [Restrictions on registration under other Acts]:
§ On Question, Whether Clause 150 shall stand part of the Bill?
§ 4.40 p.m.
§ LORD DIAMOND
I think I must ask the Government for a full justification of this clause. It is a most important clause, and I do not want to spend time at the moment criticising various possible points of view. I would much prefer the Government to justify the clause. In justifying it, what I should like them to do is to bear in mind what they have previously said about the way in which unregistered organisations can maintain their right to be treated, for tax purposes, on their provident funds as they have been treated for the past century or so. I would ask the Government to bear in mind what has been said on that in relation to this clause, which prevents organisations of workers, after the commencement of this Act, registering under the Companies Act 1948, the Friendly Societies Act, 1896, or under the Industrial and Provident Societies Act, 1965. In particular, I would ask the Government whether the reconciliation between this clause and what was previously said is, and is only, that there would have to be a clear separation between the unregistered organisation and the funds: that there would have to be two quite separate bodies, and the interested parties would not be the same; 421 in one case they would be trade union members, albeit unregistered trade union members, and in the other case they would be beneficiaries under the provident schemes who were past members, or relatives of past members, of a trade union.
I think it would therefore be brought clearly to light that if that were the only reconciliation, the Government would be compelling an organisation, in order to protect its beneficiaries, to divide itself in this artificial way and to have an incompatible membership. I think the first stage is for the Government to justify this clause, bearing in mind everything they have said about the right of unregistered unions to hive off their funds under the Industrial and Provident Societies Act and the Friendly Societies Act, and so to protect the beneficiaries of those funds.
§ THE LORD CHANCELLOR
May I leave the specific point to my noble friend Lord Drumalbyn, who dealt with it before? I do not think the clause needs any other justification. It has been the law for countless years—I cannot tell the noble Lord offhand for exactly how long, although my impression is that it is ever since 1871, but at any rate it is for a very long time indeed—that if you register as a trade union you cannot, at the same time, be a limited company, and equally you cannot, at the same time, be a friendly society. If you purport to do so—and it has happened from time to time—the registration is void, quite apart from any act of the Registrar in removing the name from the register, as he also has the power to do.
Although I would ask my noble friend to deal with the point about the provident fund and the members of the provident fund, it is certainly established law that if you want to register as a trade union you must not use the Companies Act to do it. You cannot get the benefits which would attach to being a trade union by registering as a friendly society, or under the Companies Act. I am sure that is right, whatever you may think about the rest of the Bill. We have decided that registered trade unions should have a status of their own. It may be that we have argued—and we are very nearly at the end of a long course now—about what that status should be, and what the advantages and responsibilities should 422 be; but quite clearly nobody would wish to pass an Act of Parliament which gave status to a particular kind of body, and then to say that it does not matter, you can all get the same thing without the responsibilities by using the Companies Act as a device. This would not make sense. I do not think the clause requires justification, but I would ask my noble friend to answer the specific point which the noble Lord has put.
§ 4.45 p.m.
§ LORD DRUMALBYN
I think the question the noble Lord has asked is perhaps based on a misapprehension which I can clear up quite simply. Of course, it is the case that unions have registered with the Registrar of Friendly Societies, but they were not friendly societies, and they did not register as friendly societies as my noble and learned friend has said. Clearly it is not intended that in the future organisations of workers should register as friendly societies for their normal industrial relations activities. What was said was that it would be perfectly possible for them to hive off their funds and form a friendly society to deal with those funds, as indeed it would be possible for a registered trade union to do.
Another point that was raised by the noble Lord, Lord Stow Hill, earlier, was the question of the funds of all kinds all vesting in a trade union when it became incorporated under this Bill. There again, there is nothing to prevent it—as my noble and learned friend said at an earlier stage—from hiving off some of its funds under trust arrangements, if it wanted to do so. The short answer to the noble Lord, Lord Diamond, is that the Bill envisages the possibility of the protection of the provident funds of organisations of workers that do not register by their setting up separate provident funds, and so gaining protection in that way.
§ LORD GEORGE-BROWN
What is really worrying some of us a bit is this constant use of the words "hiving off". As I understand it, at the moment trade unions in fact have their funds in different sections; they have their trustees, of course, for different purposes, but in the end it all comes under the central authority of the union. When the noble 423 Lord keeps saying "hiving off", does he mean we have to take it out of the central body, or does he just mean we have to have a different body of trustees for the different purposes of our affairs? What does "hiving off" mean here?
§ LORD DRUMALBYN
So far as organisations of workers are concerned, they will have to have a separate fund established for this purpose. The noble Lord is quite right in saying that many unions have separate funds under separate trustees, but not all of them. I understand some of them treat their funds much more centrally than that. In order to gain protection for their funds, as we have seen under the previous clauses we have dealt with, they will have to establish a separate non-militant fund, and this is for income tax purposes as well.
§ LORD DIAMOND
I am grateful to the noble Lord, Lord Drumalbyn, who indeed was right when he said that my misunderstanding was capable of being removed by a very simple explanation, which he proceeded to give. What he said was that although subsection (1) states that no registered union shall become registered under the Companies Act, what the Bill means is that it shall become registered under the Companies Act. That is a very simple explanation indeed. It is difficult to read it into the words, but I accept it completely. What he is saying is that so long as it does not register under the Companies Act for the purpose of its trade union activities—for the purpose of regulating wages and arrangements as between master and servant, or as between employer and employee—it can register under either the Friendly Societies Act or the Industrial and Provident Societies Act for the purpose of its provident funds; and where the Bill states that it cannot register, that is to be taken as meaning that it can. That is a very simple explanation indeed, but I doubt whether it would carry weight with anybody who is not so simple as I am and who does not accept at face value everything that the noble Lord, Lord Drumalbyn, says. I hope he will take the matter further. What he literally said was that there is nothing to prevent a trade union from registering under the Friendly Societies Act or under the Industrial and 424 Provident Societies Act in respect of its provident activities.
§ LORD DRUMALBYN
No. What I think I said was that there is nothing to prevent a trade union from registering a friendly society; in other words, hiving off its funds into a friendly society. I hope that that is quite clear. The noble Lord is not correct in saying that incorporation necessarily means incorporation under the Companies Act. It does not mean that. Incorporation of a union under this Bill will be incorporation under this Bill and not under the Companies Act.
§ LORD BERNSTEIN
May we treat this matter in a simple way? Is it now being said that a trade union can have a provident fund, provided that it is not under its control?
§ THE LORD CHANCELLOR
The noble Lord is not trying so hard as he usually does. What my noble friend said is that in any other body—companies, sporting associations, clubs—which very often have provident funds dealing with superannuation, old age, sickness and so on, the common thing to do is to put them under a trust deed, under trustees whose function it is to see that the fund goes to the right people and is not used by the wine committee of the club. Unregistered trade unions have exactly the same rights as other people. One method is to register a friendly society to deal with the provident side of the matter and, according to my information, that is not uncommonly done at the moment. I myself probably prefer the trustee method, but either method is open to an unincorporated association or an unregistered body of workers. It does not mean that it is not under their control, because they presumably appoint the trustees or the directors. That is all that my noble friend said, and I really think that a great tycoon of industry, like the noble Lord, Lord Bernstein, ought to be able to master such a simple proposition.
§ LORD BERNSTEIN
Perhaps the noble and learned Lord, being the eminent lawyer that he is, can explain something in simple English for the benefit of someone in industry who has to pass on this information to his staff. As I understand it, commercial companies 425 have benevolent funds which are not under trustees, and I can produce a list of companies where that is the case. They can have trustees if they wish, but they do not have to have them. If a trade union decide that they do not want to take their provident funds out of their central fund, is it possible that those funds can be injuncted under the clauses which we have been discussing during the last few days, because I cannot see anywhere that a fund of a commercial company, like, say, I.C.I., could be injuncted because of their power and their money. So far as I can understand the position, there is no equality. I do not know whether the use of the word "tycoon" was an expression of respect or otherwise, but I should prefer the noble and learned Lord not to use it.
§ THE LORD CHANCELLOR
I shall certainly not use it if the noble Lord does not like it. It was directed with great awe and humility against a man who has much more capacity for making money than I have. But what I want to say is this. The noble Lord is still not following the argument, which is really rather a simple one. This matter arose a week or two ago—the noble Lord, Lord Bernstein, was not here, because it has been a very long Committee stage—when I think the noble Lord, Lord Stow Hill, originally asked me whether the immunity from income tax (not the immunity from execution, which is what we have been talking about under the previous two clauses) conferred by, I think, Section 338 of the Income Tax Act 1970 on trade unions which are now registered, will be continued under the new legislation. My answer was, "Yes it will." But I think the noble Lord, Lord Diamond, then asked," But how about those which do not choose to register? What about their funds? "The noble Lord, Lord Stow Hill, took up that point. What my noble friend Lord Drumalbyn then dealt with was the position of the funds of an unregistered trade union. The reference to I.C.I. and their general funds has nothing whatever to do with this case because I.C.I., like the companies of the noble Lord, Lord Bernstein, has to pay income tax. What we are talking about is immunity of charities and provident funds from income tax. I hope now, despite the fact that I caused deep resentment by calling the noble Lord a tycoon, that he will 426 at last have discovered what this argument is about.
§ Clause 150 agreed to.
§ Clause 151 [Immunity of confidential information]:
§ On Question, Whether Clause 151 shall stand part of the Bill?
§ 4.57 p.m.
§ LORD STOW HILL
I want to raise two points on this clause, which deals with the very important topic of the information which an employer is put under an obligation to disclose by Clauses 54 and 55. Subsection (1) deals with the extremely important exceptions that are made from the categories of information which must be disclosed. I say that they are very important because among other things they have a civil liberties aspect. In particular. they deal with information relating to an individual, and if the noble Earl, Lord Jellicoe, is going to reply the language to which I should like to draw his, and the Committee's, attention in particular is that information need not be disclosed if it comes within the description in paragraph (d) as being,any information relating specifically to an individual, unless it is such that the disclosure of it could not (apart from any special private circumstances of that individual) be reasonably expected to be seriously prejudicial to him and he has consented to its being disclosed ".I raise this question in no Party spirit at all, and I am sure the noble Earl will accept that from me. It has not the slightest Party context. But one wants to get it right, because this is an important provision. What I have not quite followed, on which I should like to know the Government's thinking, is why there are the two limbs of the requirement. I can perfectly well understand that an employer should not be required to disclose information about an individual without the consent of the individual. That is one of the two limbs provided for in the words,and he has consented to its being disclosed".What slightly puzzles me is this. Let us suppose that an employer is in the position of having information which applies to an individual, and he has asked the individual whether he has any objection to its being disclosed. The individual, let it be assumed, says, "I have not the slightest objection; disclose it as much 427 as you like. Indeed, I should be glad if you would disclose it". I cannot quite understand the thinking which then imposes upon the employer, notwithstanding that he has received that consent, the further obligation to ask himself whether the information issuch that the disclosure of it could not (apart from any special private circumstances of that individual) be reasonably expected to be seriously prejudicial to him…If the individual says, "Disclose it as much as you like", why on earth should the employer have to ask himself whether, apart from any private circumstances, it could be seriously prejudicial to that individual?
I am, I hope, sensitive to the position of any individual and of any information affecting a private individual. I think that on both sides of the Committee we should always he anxious both to safeguard the privacy of an individual, his private concerns, and to prevent him from being exposed to public censure or public inquiry more than is absolutely necessary. I think we all wish to do that, and to safeguard his position in the general sense. If, however, the individual says, "I have not the slightest objection", I do not myself see what the necessity is to require the employer to go further. I dare say there is a very good reason, and if there is I should very much like to know it.
The second question I should like to raise is this. The exclusions do not comprehend what at the moment would come within the scope of legal professional privilege; what passes between an employer and his legal advisers for the purpose of engaging in proceedings. The Bill which was produced by the previous Government specifically provided for that. In Clause 22(1)(f), there was excluded from the information which an employer had to provide information obtained by the employerfor the purpose of bringing, prosecuting or defending any legal proceedings ".That is a clear description of the ordinary privilege applying to privileged communications between client and solicitor and client and counsel. Again, the Government, if I read their Clause 151 aright, have omitted that provision, and have not in any sense dealt with information private between lawyer and client. Again, 428 there may be a very good reason for excluding that, but I should like to hear the Government's thinking upon it. It is perhaps a matter one would wish to revert to on Report.
§ LORD BERNSTEIN
Before the noble Earl answers the questions of my noble friend Lord Stow Hill, which are very relevant, I should like to ask two questions. I am very restricted in what I should like to discuss, because the code of practice promised in Clause 2 has not yet arrived. I am therefore in some difficulty. But does Clause 151 in any way nullify or contradict the duties regarding information placed upon employers under Clauses 54 and 55? If it does not, it seems to me that under Clauses 54 and 55 an employee not residing in Great Britain, or evidently not a British subject, could give the information without perishing. Have I got that right? It seems to me that they are contradictory in two ways.
§ LORD DIAMOND
Before the noble Earl replies to my two noble friends, all I want to do is to underline what has already been said and to ask a very specific question of the noble Earl, which I am sure he is ready to reply to now. What I want to underline is that without the code of practice, and approaching this clause with a certain amount of suspicion, one can easily read into it that it, I will not say nullifies but nearly nullifies all the previous provisions about providing information so that negotiations can take place on a fair basis. I do not want to overstate the issue, because so much will depend upon the code of practice. Therefore, what I want to say to the noble Earl is that as that is so obviously so, and as a good deal of our time has been wasted in discussing a pig in a poke, does he not think it now right that he should—I am not quite sure what a "poke" is, but anyway remove it, and disclose the animal underneath and say when the code of practice will be made available? I ask that hoping that he will be able to say that it will be available in a matter of a day or two.
§ 5.4 p.m.
THE LORD PRIVY SEAL (EARL JELLICOE)
Let me say straight away that I find the points which have been put to me of extreme technical complexity, and I have a feeling that I am not going 429 to be able to satisfy either of the first two noble Lords. Nor am I going to be able to satisfy the noble Lord, Lord Diamond, save to say that I think I may be able to give him partial satisfaction. I do not know the precise date on which the code of practice will be available, but I gather it will be very shortly. I think it will be very shortly indeed.
§ LORD DIAMOND
The noble Earl will appreciate that we have now reached the critical stage of (as somebody said last night) being likely to get through to the end of the Committee stage of this Bill within the next foreseeable period—three months, three years; I forget which was suggested. But suppose we get through it to-day, for example. Then we shall have to start to consider very carefully indeed, and immediately, our attitude in relation to the Report stage and the things we shall he doing. It will be vital for us, in order to enable us to conduct our task sensibly, that we should have the code of practice at the earliest possible moment.
I quite take the point of the noble Lord, Lord Diamond, and I do not think there is a great deal between us on this matter. I think it would almost certainly be held to facilitate our Report stage. Of course, a preliminary draft of the draft code of practice, or what might be called a consultative draft, is what will be available; but I entirely take the point of the noble Lord, Lord Diamond. I will ask my right honourable friend the Secretary of State for Employment what his present intentions arc. I am not absolutely au courant (I do not know why I am lapsing into this now fashionable language) but it is my understanding that it will be available very shortly indeed. But I take the point of the noble Lord, Lord Diamond. I will see that it is faithfully communicated to my right honourable friend, and I will take steps to inform your Lordships as soon as I know the answer. I doubt whether I shall know the answer by the end of this Committee stage. I might, of course, if the Committee stage goes on for some months. I might then be able to give it, but otherwise not.
The noble Lord, Lord Stow Hill, will, I hope, forgive me. I must say this quite frankly. I compared Clause 22 of the 430 previous Government's draft Bill with this, and I notice that paragraph (f), to which he referred, is not as one of the exclusions, as it were, in the clause we are at present discussing. The reason, I am informed, is of a fairly technical nature; but if the noble Lord would like to take this matter up at the Report stage I will, of course, communicate with him on that point, and with the noble Lord, Lord Bernstein, on his point, which I find a little difficult. So far as paragraph (d) is concerned, it was my understanding that this was meant to he a double safeguard of the individual concerned—" seriously prejudicial " and the consent having been given.
The noble Lord, Lord Stow Hill, has alluded to Clause 22 of the last Administration's Bill, and I notice that the subsection we are now discussing, to which he referred, Clause 151(1)(d), is precisely the same as Clause 22(3)(d) in the previous Government's Bill. The wording is absolutely identical. I read now from Clause 22 of the last Government's Bill, where the words are:be reasonably expected to be seriously prejudicial to him and he has consented to its being disclosed…That is, I think, precisely the same wording as in paragraph (d) of Clause 151(1). All I can say is that apparently the last Administration also thought that this double safeguard was required. Now that the noble Lord has made the point to me, I must confess that I should like to look to see whether it is really necessary, whether an "or" might not be desirable. I should like to safeguard myself on that and will look into those two points, as I shall into the question put by Lord Bernstein. I will write to both noble Lords. I regret that I am not able to give them the satisfactory answers that I should have liked to give.
§ LORD STOW HILL
I am grateful to the noble Earl. With regard to the identity of language, may I say that if I had been in another place, and if the result of the last Election had been other than it was, I should have put to the Minister in charge there precisely the same question that I have put to the noble Earl? There may be a good reason for the provision; I am not saying that I disagree with it. I say that I do not agree with its wording, and should have thought that one safeguard was enough. 431 But my mind is not closed. This is not a Party point; one wants to get the position clear and adequately to safeguard the private individual.
I should like to echo the noble Lord's words: there may be a good reason for it. I am not quite certain what it is. As the noble Lord said, this is not a Party point because the wording in this respect was the same in both Bills. I should certainly look into it.
§ LORD BERNSTEIN
I wonder whether the noble Earl will look into the wording of this particular clause to ensure that any employer at any ordinary works will be able to understand it.
§ Clause 151 agreed to.
§ Clauses 152 and 153 agreed to.
§ Clause 154 [Employment under the Crown]:
§ LORD DIAMOND
I beg to move Amendment No. 287D. This is a purely probing Amendment to give an opportunity to the Government to explain their thinking on this part of a very important clause. I do not think I need say any more at this moment.
Page 112, line 17, leave out from second ("employment") to (" and") in line 20 and insert ("the costs of which are met by monies provided by Parliament, including the Consolidated Fund ").—(Lord Diamond.)
LORD W INDLESHAM
The main effect of this Amendment would be to include the Armed Forces in the scope of the Bill. The noble Lord will remember that the position of the Armed Forces was raised on the debate on a previous clause in Part II of the Bill by the noble Lords, Lord Delacourt-Smith and Lord Leatherland. I dealt with the position in general terms in reply to Lord Delacourt-Smith on May 10; but I gave an assurance that I would make a fuller statement when we reached this part of the Bill. This I shall now do, having consulted my right honourable friend the Secretary of State for Defence.
432 I am sure that noble Lords will appreciate that members of the Armed Forces of the Crown are in a very different position from civilians and other Crown servants. This distinction derives partly from the Service Acts and partly from the exercise of powers under the Royal Prerogative. Servicemen and Servicewomen bind themselves to a particular form of service which recognises that the requirements of the Service are and must be paramount. They are subject to military law and bound to carry out lawful commands. In the absence of normal collective bargaining procedure, provision has been made in the Service Acts to give members of the Armed Forces a statutory right to complain to superior authorities of the Service if they think they are wronged in any matter. The complaints may be addressed to successive levels of authority in accordance with regulations, and each authority to whom the complaint is submitted is bound by law to investigate it and to grant redress if the complaint is justified. The procedures for making complaints are prescribed in regulations and Servicemen have them brought to their attention regularly. They are well used and well understood by the Services.
This Amendment provides an opportunity to emphasise that members of the Armed Forces are not forbidden to belong to a trade union. In fact, the Ministry of Defence have made arrangements with a number of craft unions whereby these unions recognise the training and experience gained in the Services as qualifying a man for membership of a union. Over 300 trades in all three Services have been recognised in this way. Servicemen are advised to join the appropriate union before leaving the Forces. The obligations to the unions incurred by members of the Forces while serving are limited to payment of subscriptions. The requirements of the Services prevent members of the Forces from undertaking the obligations of trade union members in regard to collective action. A Serviceman who withdraws his labour could be charged with failure to obey a lawful command, while a group of men who took strike action might be charged with mutiny.
We must remember that the whole structure and organisation of the Armed Forces have evolved to meet their essential function as efficient fighting forces 433 and that there must be disciplinary restraints which are foreign to and quite distinct from those of civil or industrial life. The result is that the normal employer-employee relationship does not exist and cannot exist in the Armed Forces, and the concept inherent in the new approach described in the Bill does not have practical relevance. If at any time there should be a change towards a different relationship in the Forces, this could not be achieved quickly nor could it come about without the most careful preparation and examination. Such examination would have to cover the fundamental constitutional position of the Armed Forces and the powers and responsibilities of the Defence Council. For these reasons the Government take the view that it would not be appropriate for the Armed Forces to be included in the scope of this Bill.
§ LORD DIAMOND
I think at this stage that all I need do is to thank the noble Lord for giving us such a very full and careful statement of the Government's views on the present state of the law and how this Bill affects that situation. This is a very important, and noble Lords will appreciate very difficult, field and we should want carefully to study what he has said and, if necessary, to return to it at a later stage. I regret that my noble friend who raised the matter in the first place is unable to be present this afternoon. He is closely engaged in industrial relations in fact instead of in theory. I am sure that he will be equally grateful. In these circumstances, and since no other noble Lord wishes to participate in this debate, I would ask your Lordships' leave to withdraw this Amendment.
§ Amendment, by leave, withdrawn.
§ 5.20 p.m.
LORD DIAMOND moved Amendment No. 287J:
Page 113, line 1, leave out subsection (4).
§ The noble Lord said: On behalf of my noble friend Lord Shackleton, who because of a slight physical disability is unable to be with us, may I move Amendment No. 287J? This again is a probing Amendment to enable the Government to clarify their position. The particular point is the limitation on the Statute Book to the power of the Court to determine the rights of the situation, 434 but not to go further, and to make orders. I understand the difficult situation which might well arise where a Minister of the Crown is involved. When I was more closely concerned in these matters the doctrine was that, in all appropriate cases, where the Crown could not be bound by statute it would wherever possible act as though it were and would consider itself bound. What I am seeking from the noble Baroness, Lady Tweedsmuir of Belhelvie, who is listening with such unusual interest that I can only assume that she is going to reply to me—
§ LORD DIAMOND
No? Then I am flattered beyond deserts. What I am seeking is a statement from the Government about how they regard the application of that doctrine to this part of the clause.
It falls to me to reply to the noble Lord; and I can assure him that, like my noble friend Lady Tweedsmuir of Belhelvie, I was listening to him with keen interest although that might not have been visible to the noble Lord. He has explained that he moved this Amendment, on behalf of his noble friend, as a probing Amendment. Let me say straight away that I was very sorry to hear that his noble friend the Leader of the Opposition is indisposed. We hope to see the noble Lord back with us very shortly. The noble Lord, Lord Diamond, has drawn attention to the limitation on remedies available to the Industrial Court in cases of complaint against the Crown. I should like to explain the position as clearly as I can, and I shall go into some detail because this point was not discussed in another place and it is important that we should understand the situation. The effect of the limitation is that the Crown is protected against Industrial Court restraining orders and also against orders authorising the presentation of claims to the Industrial Arbitration Board, where that is provided for. In other respects, the same remedies are available against the Crown as are available against any other employer.
The reason for the particular limitation in subsection (4) is that in the case of the Crown the excluded remedies are, in our view, constitutionally inappropriate in 435 respect of a Minister responsible to Parliament. We wish the Crown to be bound, so far as possible, by the provisions of this Bill. We take the view that in their function as an employer the Government should be bound by the provisions of the Bill, so far as possible, in the same way as any other employer in industry. I think that this is in accordance with the spirit of the times, as it were. A similar provision is embodied in the Race Relations Act and in the equal pay legislation of 1970, which, I believe I am right in saying, will become effective in 1975. A similar provision was included in Clause 82 and in Schedule 4 to the Bill drafted by the last Government.
I have said that we wish the Crown to be bound, but I also said, "so far as possible". There is a limit, as I think the noble Lord, Lord Diamond, clearly recognises. The limitation is of a very understandable nature. The simple fact is that, apart from a declaration of rights under Section 21 of the Crown Proceedings Act, it is my understanding that there is no remedy in the courts if the Crown chooses to ignore an order made against it. The Crown cannot be prosecuted, nor can it be committed for contempt. Nor is it possible to levy execution on Crown property. Therefore the remedies open to the Industrial Court in respect of other employers are not, and, as I see it, cannot be, appropriate in the case of the Crown. The only real remedy which is available, an order determining rights, is provided for in the Bill. But if a Minister failed to act in accordance with an order determining rights he would have to defend his decision in Parliament. This is a powerful inducement to comply, and it is something which is not available in respect of a recalcitrant employer in the private sector.
Since the matter is of Departmental concern to me I know that the National Staff Side of the Civil Service, for example, has been concerned about the restrictions, especially in the case of a failure to negotiate (Clause 53(1); or to disclose information (Clause 54), and especially about the exclusion of access to the Industrial Arbitration Board. I understand that it would be of some considerable reassurance to the Staff Side if the Government could give an undertak- 436 ing that in these cases they would give effect to orders of the Court determining the rights of parties, subject to the overriding authority of Parliament. That undertaking I am very willing and glad to give on behalf of the Government. In plain English (there was a plaintive cry from the Benches opposite for plain English a little time ago), I think it means that the Government will abide by the Court's determination of rights, even though the Court's decision is different from what the Crown, as an employer, would have liked to do, or thought it right to do, though the Crown itself is not statutorily bound. I hope that is perfectly plain to the noble Lord. It is clear to me. The more laboured undertaking which I gave before reverting to plainer English, was in the same form as the undertaking which, since 1925, has pledged the Government of the day to give effect to arbitration awards under the Civil Service arbitration agreement.
I am grateful to the noble Lord for moving this Amendment on behalf of his noble friend. It has given me a chance to explain the position as I understand it, and also to give that assurance, which I hope will go some way, at least, to allay any anxiety that may be felt.
§ Loan DIAMOND
I am sure the Committee would wish me to thank the noble Earl for what he has said, especially as he speaks with such high and double authority as Leader of your Lordships' House and as the responsible Minister in these matters. I am very grateful for what he said about my noble friend the Leader of the Opposition, and I will certainly convey his kind remarks to my noble friend. I think that the undertaking he gave, a very plain undertaking, will be of considerable help. I am very glad he gave it, and I am sure that it corresponds with what the present Government and other Governments would do. In those circumstances, I seek the leave of your Lordships to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ EARL JELLICOE moved Amendment No. 287K:
Page 113, line 10, at end insert—
(" ( ) Subsections (4) and (5) of section 106 of this Act shall not have effect in relation to Crown employment.")
§ The noble Earl said: We have just debated the question of limiting the remedies against the Crown, and this Amendment is designed similarly to limit the remedies available against the Crown in the case of complaint of a breach of duty under Clause 55. The effect of the Amendment, if the Committee were to agree to it, is to prevent the Court from making an order to direct the Crown to issue a statement in accordance with Clause 55. The Amendment is necessary for precisely the same constitutional reason as I was adducing just now. In the case of complaints against the Crown under Clause 55, an order determining rights would of course be available, and a Minister could be called upon to defend himself in Parliament if he chose to ignore such an order. The reason why this provision is only now being proposed is because Clause 106 was introduced during Committee stage in another place. In the light of that explanation and of the discussion on the last Amendment, I trust that the Committee will agree to this Amendment.
§ On Question, Amendment agreed to.
§ 5.31 p.m.
EARL JELLICOE moved Amendment No. 287L:
Page 113, line 12, leave out ("neither the Forestry Commissioners nor any") and substitute ("none").
§ The noble Earl said: I should like on behalf of my noble friend Lord Drumalbyn to move this Amendment, and to suggest that at the same time we might discuss No. 287M, with which it is linked. The Amendment looks quite simple, and it is quite simple, but it disguises rather a curious situation which I will try to explain briefly. Our intention—and our intention here, as elsewhere, is perfectly pure—was that the Forestry Commissioners should be covered by the Bill and treated in the same way as ordinary employers. We are aware that there has been some question about the precise legal status of the Commission, whether they are in fact a Government Department, and it was hoped that the words in Clause 154 as it is printed, which we now propose to omit would clarify the position so far as the Bill is concerned. After deeper reflection, and some prompting from certain quarters, it has become apparent to us that the special reference 438 to the Commissioners in Clause 154 is likely to add to the confusion and may possibly result in the exclusion of the Commissioners' employees from the scope of the Bill altogether The Commissioners have themselves been advised that they are a Government Department, and that the special reference in this clause may be held to imply the contrary and create general confusion about the Commissioners' status in law.
§ I thought, as I came as a simpleton to this, that one would recognise a Government Department when one saw one and that a Government Department would know whether or not it was a Government Department, but I am told that this is not the case. There is a very special difficulty here, which possibly can be resolved only by the courts. There is, save for that, no conclusive ruling on this matter; but if the Commissioners were subsequently held to be a Government Department the effect of Clause 154 as it stands would be to exclude altogether from the scope of the Bill the Forestry Commissioners and about 10,000 employees. Clearly, this would be highly undesirable. Therefore we think it important that the references to the Commissioners in the clause should be deleted. The Commissioners' servants would then be assumed to be covered by the Bill in the same way as those of any other Government Department, unless and until any subsequent decision in legislation made it clear that the Commissioners must be regarded as ordinary employers. In that case it would be expected that their servants would be ordinary employers under a contract of service, and the Bill would apply to the Commissioners and their servants in the same way as it applies to everyone else.
§ In other words, if the Committee agree to making these Amendments, we shall not prejudice the status of the Commissioners, whatever that status may be, and shall ensure that, whichever way any subsequent decision goes, be it by legislation or in the courts, the Commissioners and their servants will be covered by the Bill. I apologise for explaining in a rather laboured way a curious situation, but I thought that I would regale your Lordships with this curious and, to me, rather bizarre departmental anomaly which exists at the present time. I beg to move.439
§ LORD DIAMOND
It is indeed a bizarre situation. But your Lordships will have noticed what I may call the considerable improvement in the atmosphere of the Committee since the noble Earl joined us. Not only did he start off by introducing Amendments which were acceptable but now, for the first time in the course of this Bill, he has proposed an Amendment to remove confusion from the Bill. Not only will the Committee rejoice in this, but I assure him that there will be rejoicing in Heaven, too. We are very grateful to him. I gather that he is still not absolutely certain whether a particular Government Department is a Government Department or not. I would only say that when I had a slight responsibility for paying the salaries of those in a Government Department they had no doubt whatever to whom they should go for their pay. But this is somewhat different. Inasmuch as the noble Earl assures us that whereas the Bill confounded confusion, he has removed at all events the confounded part, if not the confusion, I think it is of some advantage.
§ On Question. Amendment agreed to.
Page 113, line 19, leave out ("by those Commissioners or").—(Earl Jellicoe.)
§ On Question, Amendment agreed to.
§ EARL JELLICOE moved Amendment No. 287N:
§ Page 113, line 26, at end insert (" and for the purposes of this section Crown employment does not include any employment in respect of which a certificate to which the next following subsection applies is for the time being in force.
§ ( ) This subsection applies to any certificate issued by or on behalf of a Minister of the Crown and certifying that employment of a description specified in the certificate, or the employment of a particular person so specified, is (or at a time specified in the certificate was) required to he excepted from subsection (1) of this section for the purpose of safeguarding national security; and any document purporting to be a certificate so issued shall be received in evidence and shall, unless the contrary is proved, be deemed to be such a certificate.").
§ The noble Earl said: I think I can deal with this Amendment briefly. There are a small number of Crown employees whose work is directly and intimately concerned with safeguarding national security. It is felt right that they should 440 be placed by ministerial certificate on the same footing as members of the Armed Forces of the Crown, who are excluded from the provisions of the Bill under subsection (2) of this clause. I have gone into this matter, which is of a certain delicacy, with very considerable care, and I hope that on that assurance noble Lords opposite will accept that this is a necessary Amendment. I beg to move.
§ LORD DIAMOND
We are grateful to the noble Earl for what he has said about the care with which he has exercised his responsibility in this very sensitive field, and we are grateful to him for his explanation.
§ On Question, Amendment agreed to.
§ On Question, Whether Clause 154, as amended, shall stand part of the Bill?
§ 5.38 p.m.
§ LORD LEATHERLAND
Strangely enough, I rise not to argue, not to criticise, but simply out of sheer politeness. The noble Lord, Lord Windlesham, was good enough in his speech a few minutes ago to refer to the fact that in an earlier debate I raised the question of trade union membership enjoyed by members of Her Majesty's Forces. At that time I urged that it would be most unfair if an embargo were imposed on sailors, soldiers and airmen during their military service. I pointed out that this applied particularly in those corps where craftsmen were recruited, and recalled that in my old Army days I knew of sergeant-majors who were members of the Amalgamated Society of Engineers (as it was then called). I also pointed out that with the present short service, three-year engagements, it was unfair if a man who was a trade unionist on enlistment was required to sacrifice his trade unionist membership during his service and that it might tend to prejudice his obtaining employment on leaving the Service. I am delighted that the noble Lord, Lord Windlesham, has been able to satisfy me on the points that I raised, and I appreciate it very much indeed. I made it clear that I did not want trade union soldiers to use their trade union membership for the purpose of argument and negotiation with their employer. The noble Lord has similarly made it clear that that will not be done. I thank the noble Lord for having given me the assurances which I desired.
§ LORD STOW HILL
I should like to raise a point of some substance on Clause 154. The question is whether civil servants are brought within the provisions of Clause 20 by Clause 154. The Committee will remember that there are two main clauses in the Bill which safeguard the rights of workers. One is Clause 5 and the other is Clause 20, which deals with unfair dismissal. That clause only applies and only gives rights to persons who are employees within the definition contained in Clause 158 of the Bill and it does not apply to workers who are not employees. An employee is defined in effect as a person who is engaged on a contract of service. The term "worker" is wider than that, although it includes employees.
I have been furnished with a copy of State Service, which is the publication of the Institution of Professional Civil Servants who are concerned with this matter. The extract with which I have been provided contains an article by Mr. O'Higgins, a lecturer in law at Cambridge University. He sets out the reasons which underline the views which the Institution has as to whether its members are entitled to the remedies provided by Clause 20 of the Bill. May I cite one paragraph from this article, in which Mr. O'Higgins expresses the conclusion which he has reached. It says:Therefore, despite the apparent generality of Clause 154, it is likely that a court would decide that the legal protection against unfair dismissal given by Clause 20 has no application to civil servants. Only an Amendment of the Bill could make certain that the protection of Clause 20 will be available to civil servants.I will not read the rest of the article dealing with that point, because it contains a detailed statement of the reasons which seemed to the writer to give rise to that doubt.
May I approach the matter in this way. I inferred from some of the wording contained in Clause 154 that it is the Government's intention that civil servants should be entitled to the remedies provided by Clause 20. I draw that inference in particular from the words in subsection (3)(a) which read:Any reference to dismissal shall be construed as a reference to the termination of Crown employment.In this clause and in Clause 158, which is the general definition clause, there are 442 definitions of Crown employees. I will not weary the Committee by examining all those definitions to see whether they are adequate to bring civil servants within the scope of Clause 20. Mr. O'Higgins thinks not. I am bound to say that I feel rather inclined to agree with his view, although it is difficult to come to a fair conclusion. If I am right in assuming that it is the desire of the Government that a civil servant should be entitled to compensation in the event of unfair dismissal, then I would submit to the Committee, as Mr. O'Higgins does in his article, that Clause 154 would need amendment.
May I shorten the argument by saying that a civil servant will not be entitled to the remedies provided by Clause 20 unless somewhere in the Bill there is to be found some language, which in terms or by the most necessary implication, provides that a civil servant shall be deemed to be a person employed on a contract of service with his Department. I say that because if one looks at the general law on this subject and asks oneself what is the position of the civil servant and what are the terms of his contract or his appointment, perhaps the most compendious statement that I, at any rate, have been able to find, is to be found in the case of the Inland Revenue Commissioners v.Hambrook, which was decided in 1956. i am pleased to be able to cite from that case because it is from the judgment of that very great judge, Lord Goddard. whom I am very proud to be able to think of as having been a personal friend. He said:If I may be bold enough to express a conclusion on a matter … it is that an established civil servant is appointed to an office and is a public officer, remunerated by moneys provided by Parliament, so that his employment depends not on a contract with the Crown but on appointment by the Crown, though there may be…exceptional cases, as for instance an engagement for a definite period where there is a contractual element in or collateral to his employment.One therefore starts from the general position that a civil servant is not a person, except in particular cases, who is employed on a contract of service. Without citing from the Bill extensively, if one goes to the definition clause one finds there that "worker" includes persons employed by a Government Department. But if one examines that definition one finds, I submit, quite conclusively that it 443 does not provide that a civil servant is to be regarded, contrary to Lord Goddard's definition, as a person employed on a contract of service. Unless one finds somewhere else in the Bill some explicit provision of this kind, then a civil servant is clearly not entitled to the relief provided by Clause 20, and Mr. O'Higgins is right in his conclusion.
I hope that the Committee, perhaps from its own investigations, will be able to confirm the view that I have formed, that nowhere else in Clause 158 will one find those words. Looking back to Clause 154, while it contains expressions which are fairly close to it, there is nowhere in that clause, I submit—though I do not say that the matter is beyond doubt—where the wording provides either explicitly or by necessary implication that for the purpose of Clause 20 a civil servant is to be regarded as a person employed under a contract of service. I hope that that has abbreviated the argument, and I will not continue with it because to do so would require detailed analysis of a whole lot of phrases. I hope that the noble Earl, if he is going to reply, will be so good as to give me an answer, in the first place, as to whether I am right in supposing that it is the Government's desire that a civil servant should, subject to the exceptions we have been discussing, be entitled to assert his rights under Clause 120. If I look at the measure that was proposed by the last Government—
I apologise for interrupting the noble Lord, but he said, "to assert his rights under Clause 120". I imagine that he meant Clause 20.
§ LORD STOW HILL
Yes; I meant Clause 20. The two basic clauses are Clause 5 and Clause 20. I hope that I have not been referring to Clause 120 throughout.
§ LORD STOW HILL
I am grateful to the noble Earl. In the late Government's Bill the matter was put beyond doubt. There, in Clause 82, which applies the similar clauses relating to unfair dismissal, one finds the explicit words:shall have effect in relation to employment to which this section applies"—444 that is, employment under the Crown—as they have effect in relation to employment under a contract of employment with a private employer.I should have thought that language of that sort put the matter beyond doubt; but I can find no equivalent language in the present Bill.
If, as I hope, it is the intention of the Government that civil servants should be included within the scope of Clause 20, then I would submit, as Mr. O'Higgins says, that the only way to do it, and to make certain beyond doubt that the large number of men and women who are involved do receive that protection, is by a reconsideration of the language of Clause 154. It could be made quite clear by language such as was used in the previous Government's Bill. I should be grateful to be informed, first, whether I am right in my assumption; and secondly, whether the noble Earl agrees that the matter could be made clearer and ought to be given further consideration between now and the Report stage.
§ 5.52 p.m.
I have listened carefully to what the noble Lord, Lord Stow Hill, has been saying and I should like to give him two quite brief replies. That is not because he has not touched upon an important matter—he has; and it is one in which I have in a certain sense a double responsibility. I recognise the importance of the matter, but I will be brief, for reasons which will become evident as I reply to the two questions the noble Lord has put to me.
The noble Lord asked, first, whether it was the Government's intention that civil servants should be able to benefit from the advantages, as it were, of Clause 20: whether Clause 20 would bite on civil servants, subject to certain exceptions, some of which we have just been discussing in previous Amendments. The answer, quite unequivocally is, Yes. As to the noble Lord's second question, it was my understanding that the Bill, as drafted, covered this. I will not go into the legal arguments now, because I should like to consider carefully those which the noble Lord, Lord Stow Hill, has adduced, and also the rather more detailed ones to which he has drawn my attention. It is my understanding—but 445 I speak as a layman and a non-lawyer here—that Stow Hill and O'Higgins are probably wrong, and that I am probably right in saying that the Bill, as drafted, does mean that civil servants are eligible, as it were, for the benefits of Clause 20. But it would be foolish of me to bandy legal arguments with the noble Lord, Lord Stow Hill, the more especially as he has said that he has revealed only the tip of his iceberg and that a lot more lies beneath the surface.
What I should like to do is this. In the light of my answer to A. (and I will check and let the noble Lord know if I am wrong on that, although I do not think I am), whether or not my instinct on B. is correct (and I should like to write to the noble Lord about this), 1 should like to look carefully at the suggestion the noble Lord has made as to how my positive answer to A. could be translated into a positive answer to B. With those two assurances, I hone that the noble Lord will allow me to look into this matter; if need be between now and the Report stage, to get in touch with him and with other noble Lords interested in the matter, and otherwise to come back to it on Report.
§ LORD GARDINER
When the noble Earl considers this matter with his advisers, would he consider the case (I am afraid I have forgotten the name of it) which arose out of what is some-times called the Selwyn Lloyd freeze, where some Government employees had obtained an award from the Industrial Court of 2s. a week, and were then told that it was not going to be paid? They sued for the money, and the whole case turned entirely on the question whether, being officers of the Crown, they had any legal rights at all, and what their position in law was.
§ LORD STOW HILL
I simply rise to thank the noble Earl for his extremely helpful answer, which entirely satisfies me.
§ Clause 154, as amended, agreed to.
§ Clauses 155 to 157 agreed to.
§ 5.58 p.m.
§ LORD DRUMALBYN moved Amendment No. 287B:
§ After Clause 157, insert the following new clause:446
§ Meaning of "collective agreement" and "procedure agreement"
§ (" .—(1) In this Act, subject to the following provisions of this section, "collective agreement" means any agreement or arrangement which is for the time being in force and—
- (a) is an agreement or arrangement made (in whatever way and in whatever form) by or on behalf of one or more organisations of workers and either one or more employers, one or more organisations of employers, or a combination of one or more employers and one or more organisations of employers, and
- (b) is either an agreement or arrangement prescribing (wholly or in part) the terms and conditions of employment of workers of one or more descriptions, or an agreement or arrangement relating to one or more of the matters specified in subsection (5) of this section, or both.
§ 2) Where by virtue of section 33 of this Act a decision of a joint body to which that section applies is presumed to be intended to have effect as a legally enforceable contract, then in this Act—
- (a) any reference to a collective agreement, or to a collective agreement having effect as a legally enforceable contract, shall include that decision, and
- (b) any reference to a party to a collective agreement, or to a party to a collective agreement which is a legally enforceable contract, shall be construed, in relation to that decision, as including a reference to any of the constituent parties.
§ (3) In this Act any reference to a collective agreement shall be construed as including a reference to any provisions which, by virtue of an order under section 39 of this Act which is for the time being in force, have effect as a legally enforceable contract in accordance with subsection (2) of that section, and any reference to a party to a collective agreement shall be construed accordingly.
§ (4) Where a collective agreement—
- (a) is made by representatives either of two or more employers or of one or more organisations of employers or of a combination of one or more employers and one or more organisations of employers, and is so made on behalf of all the parties so represented or on behalf of one or more of them specified in the collective agreement, or
- (b) is made by representatives of one or more organisations of workers and is made on behalf of those organisations or on behalf of one or more of them specified in the collective agreement,
- (a) machinery for consultation with regard to, or for the settlement by negotiation or arbitration of, terms and conditions of employment;
- (b) machinery for consultation with regard to, or for the settlement by negotiation or arbitration of, other questions arising between an employer or group of employers and one or more workers or organisations of workers;
- (c) negotiating rights;
- (d) facilities for officials of trade unions or other organisations of workers;
- (e) procedures relating to dismissal;
- (f) procedures relating to matters of discipline other than dismissal;
- (g) procedures relating to grievances of individual workers.
§ (6) In this section "decision" and "the constituent parties" have the same meanings as in section 33 of this Act.")
§ The noble Lord said: I beg to move the new clause to follow Clause 157. As noble Lords will recognise, this is composed in part of subsections to clauses which were moved out and are now being brought together in a single clause. The insertion of this clause containing the definition of "collective agreement" follows the Amendment No. 238MM which was agreed to at an earlier stage of the Committee. I said then that the Government had agreed in another place, after criticism from several quarters, to reconsider where the definition should be placed. Undoubtedly, the inclusion of the definition within Clause 32 did cause confusion and misunderstanding; this arose from the fact that Clause 32 was primarily concerned with the presumption of legal enforceability of written collective agreements. It went on to define the term of "collective agreements" of all kinds. It was this which gave rise to misunderstanding, and in order to avoid similar misunderstanding for the future we are here reintroducing the definition in this new clause.
§ Noble Lords may notice that the new definition differs in certain respects from the earlier one. It is now longer and more comprehensive, and I think that in this case it is an improvement. By our proposals in this Bill we are seeking to introduce a framework of law to strengthen and support the voluntary basis of our industrial relationships; and collective bargaining, which this is all about, lies at the very core of our Indus- 448 trial relations. So we must define what kinds of agreements are covered by the provisions of this Bill, and such a comprehensive definition is needed so that all who will be affected by the Bill can understand what is meant. The phrase "collective agreement", I am told, appears 25 times in the Bill. That is why the definition is spelt out at greater length. It is designed to make the various provisions about the meaning of references to collective agreements to the parties to collective agreements easier to understand. We are putting this clause immediately before the interpretation clause in order to avoid overburdening that clause, and because the definition is so central to the whole purpose of the Bill.
§ The definition of "procedure agreement", which at present appears in Clause 158(1) on page 117, affects Clauses 29 and 56, and is closely related to that of collective agreement. It at present appears in the next clause, the interpretation clause. Amendment No. 291A will take it out of that clause. The definition of "collective agreement" has been designed to include both "agreements" and "arrangements". It will include such agreements, whether made in writing or orally, and will thus cover agreements formally made as well as those established by custom and practice, or otherwise made informally.
§ I think I should say something about the definition of "arrangements". The essence of an arrangement, as distinct from agreement, is that it is a practice which, de facto, exists and is accepted and acted upon. There are many ways by which an arrangement may come into existence. They are in general established by custom and practice rather than by negotiation. Such arrangements are, for the most part, of very long standing, fully accepted and understood by the parties to them. The previous Government's Bill recognised this. Its definition of "procedure agreement" included "any arrangements".
§ In subsection (1)(a) we have also widened the description of the parties to an agreement or an arrangement. This is to take account particularly of circumstances in which individual employers may join with employers' associations in negotiating an agreement. Subsection (1)(b) 449 is broadly the same as subsection (3)(b) of Clause 32. Subsection (2) is introduced to clarify a doubt. It was thought not to be as clear as it could be, whether an award or decision of any voluntary joint negotiating body to which Clause 33 referred was a collective agreement. Subsection (3) takes within the definition what was formerly subsection (3) of Clause 34. This is purely a drafting improvement. Subsection (4) is derived to some extent from the widening of the description of the parties to which I have referred in dealing with subsection (1)(a). It is technically necessary to clarify who shall be regarded as a party to a collective agreement where this is not self-evident. Subsection (5) incorporates the definition of "procedure agreement" which is at present to be found in Clause 158. Since a "procedure agreement" is defined by reference to a collective agreement it is right to place it within the new clause. The opportunity has been taken to separate procedures relating to dismissal from procedures relating to matters of discipline other than dismissal. This was done in order to meet a point that was made to us that a procedure agreement might deal with dismissal procedures only. Otherwise the definition is similar to that already in Clause 158.
§ "Procedure agreements" is widely defined so as to include all types of procedures, in whatever way or form they have been made, to regulate the relationship between employers and their representatives on the one hand, and workers and their representatives on the other. They may arise in connection with terms and conditions of employment, or otherwise. A procedure agreement may be an arrangement, and therefore may cover matters which are regulated by custom and practice. It does not cover matters which are unilaterally decided, and does not include statements of company policy. The essential characteristics are that the agreements or arrangements must be in force, and the parties to them must include employers, or their organisations, and organisations of workers. The definition includes such matters as the facilities to be afforded to trade union official; and the procedures relating to discipline and dismissal. The definition of "procedure agreement" and, by implication, that of "collective agreement", covers machinery for both consultation 450 and the settlement and terms and conditions of employment by negotiation or arbitration. In addition, procedures relating to grievances of individual workers are included. This makes possible development of different processes for dealing with disputes of interest; that is, the negotiation of new agreements, as distinct from disputes of right which are the question of workers' entitlement under the terms of an agreement.
§ One of the weaknesses of the present agreement in the private sector in this country is that it is rare when dealing with disputes of right for a separate provision to be made, for example, for arbitration. In many instances it is the absence of such arrangements which elevates quite trivial matters and interpretation of agreements into acute confrontations between unions and employers.
§ Finally, subsection (6) is a reminder that the terms "decision" and "constituent parties" are defined in the new Clause 33, which was introduced as Amendment 238NN. That is the substance of the new clause. It represents a genuine attempt to meet constructive requests to improve the Bill by allaying doubts and fears which, however ill-founded lawyers might think them, were widely and quite genuinely felt. I commend the new clause to the Committee, and I beg to move the Amendment.
§ 6.4 p.m.
§ LORD STOW HILL
I should like to make one or two observations on this new clause. In the first place, the Committee would desire to express its gratitude to the Government for a very useful process of rearrangement. It is much more convenient to be able to look in one clause and find everything one needs to know in order to determine for oneself what is a collective agreement and what is meant by that phrase. I also recognise that the Government have made genuine endeavours to try to meet doubts that have been voiced. There are some matters which cause me a certain amount of anxiety, however, and which are, in any event, difficult to resolve. One of them centres upon the change which is made by the introduction of the words "or arrangement". If one looks at the original Clause 32 one sees that a collective agreement is an agreement 451 which is made in writing after the commencement of the Act, the effect of Clause 32 being to give legal effect to a number of understandings which heretofore would not have had legal effect. If the agreement, or understanding at least, is contained in a document whose terms can be considered, one knows to some extent where one is getting when one is told that that agreement is now made an enforceable agreement which can give rise, under Clause 34, to a claim for compensation in the event of its breach.
Where does one get where one adds to that the concept of an arrangement, and one says that an arrangement is also something which can be converted into a legally binding agreement'? What I apprehend the Government have in mind —and I understand it—is that over and over again you have a course of conduct which has persisted over a long time and which both the parties concerned in it would understand as clearly setting out their relationships one towards the other. If one goes to the ordinary law of contract, one finds that for a contract to be implied from the course of dealing between the parties is a well recognised conception. You can contract verbally or in writing, or a contract may be inferred from your course of conduct. What I apprehend that the Government desire is to reproduce into the text on this Bill that concept where. in other words., parties have dealt upon a particular basis. What the Government wish to do is to make that result in a legally enforceable contract.
From this side of the Committee we have throughout expressed our serious doubts as to whether the provisions of Clause 32 will have any useful result, or whether they will, on the contrary, lead to a growing measure of uncertainty as to what are the arrangements between both sides of the table as between management and unions. We have expressed our anxieties with regard to the consequences of Clause 34. It is a matter for doubt whether anybody will agree to enter into a binding agreement of this sort. But if one extends the idea of a collective agreement in writing; if one departs from something which one can look at and touch and read, and adds to that the far more indefinable situation 452 in which parties simply have dealt with each other, over a period of time perhaps, on a particular footing, I should have thought one is enlarging the possible area of confusion enormously. I would ask the Government what their thinking is on that. Is that not really a rather dangerous extension in the form in which they have put it into this new clause? That is the first question I should like to ask.
Would I not be right in reinforcing that argument by pointing to the definition of the parties to such an agreement'? I know that follows closely what is already in subsection (4) of Clause 32. We were recently discussing Clause 143(3), and controversy arose on both sides of the Committee as to whether, for the purpose of that subsection, individuals could be said to be bound by collective agreements which would incorporate in their contracts with their employers undertakings not to strike except in certain circumstances or for a particular period. Once you have a collective agreement which can consist in an arrangement, and once you have the provision that the parties to such an agreement, legally made enforceable, can include organisations of workers, that seems to me to be going very far. An organisation of workers is not limited to a registered trade union; it includes unregistered trade unions. If the expression were "trade unions" it would mean that at least one would know when one was speaking about an arrangement who was the party on the trade union side to that arrangement. But when you include organisations which are not registered under this Bill, you are referring, in spite of Taff Vale and Bonsor and all the other cases upon this topic—or, not in spite of them, but in the light of the reasoning contained in them—to the aggregate of individuals. Each of the individuals included in that aggregate is now made a party to an agreement which springs out from an arrangement which has lasted, I suppose, for some time among them and which consists in what in common circumstances one just talks about as a "course of dealing".
I simply voice that as being an anxiety I have. What would be the effect of that, for example, on our discussion on Clause 453 143(3)? I will not go back to that, because it was exhaustively discussed. That is the general point of substance I desire to raise. I should be glad to ascertain the Government's thinking on that. There may be a simple answer to it, but at the moment that is how it looks to me at any rate, having studied it late into the night and tried to compare it with the existing situation in Clause 32. On that topic I should be very grateful to hear from the noble Lord, Lord Drumalbyn, what was in his mind when he put into the Bill paragraphs (e) and (f) of subsection (5). I daresay I was rather muddled late in the evening when I was making this detailed comparison, but when I found that in the Bill the relevant provisions were paragraph (e), at the bottom of page 117:procedures relating to dismissal and to matters of discipline other than dismissal;and then I compared the Amendment and found that to be altered into:(e) procedures relating to dismissal;(f) procedures relating to matters of discipline other than dismissal;I puzzled my mind as to what the object of the change was. It seemed to me that the provisions had very much the same effect. But I am grateful to the Minister for saying that the object, as I understood from him, is to include separately agreements which related only to dismissal and agreements which related to matters of discipline other than dismissal—separate types of agreement, in other words; separate procedure agreements—and that his anxiety had been that as the matter was originally drawn you would have only a combination of both limbs of that division as qualifying to come within paragraph (e) on page 117. I hope I have that right. If that is right, I can see the point of it and I feel I ought to have tumbled to it earlier in the evening than I did, but perhaps I began consideration of the new clause a little bit too late in the evening. But I am grateful to the noble Lord for what he has said.
§ LORD BROWN
It might be proper for me to ask a question before the noble Lord replies to my noble friend, because I may be on the same point; I am not quite sure. It is with reference to subsection (1) of this new clause. It says:collective agreement' means any agreement or arrangement which is for the time being in force …454 This can be construed in two ways. If you use the adjective "collective" in relation to "agreement", then go on to refer to the fact that an agreement means any agreement, it is to be inferred, I think, that the term "collective" still applies. I hope I am being followed. What I am in doubt about is whether the term "collective" also refers to the term "arrangement".
I should be satisfied if the provision read:'collective agreement' means any agreement or arrangementon the understanding that it was a collective arrangement. Because if it is not a collective arrangement, then I am worried, and I think there will be difficulty in interpreting precisely whether this is a reference to collective arrangements or arrangements that have just grown up through time and cannot be truly said to be collective. It might be important to look at this point. I may be making the same point as that of my noble friend. Before I sit down, may I just congratulate the Government on the inclusion of the provisions under subsection (5), particularly paragraph (g). I am very grateful to see that. It makes room for the procedure agreements covering individual rights of appeal. This is very important indeed and I am glad to see it in this new clause.
§ 6.18 p.m.
§ LORD DRUMALBYN
I would thank noble Lords for the kind things they have said about this particular Amendment; and I should like to reassure the noble Lord, Lord Stow Hill, and the noble Lord, Lord Brown, on this matter. I think it has always been difficult, once we had started off by including in Clause 32 both the concept of the enforceability of collective agreements and the definition of a collective agreement, because of course a collective agreement, can be a collective agreement whether it is enforceable or whether it is not. This has been part of the purpose of our separating the two provisions. This is a very practical clause. It is intended to be a practical clause defining what we mean by "collective agreement" because, after all, the whole Bill starts straight off by referring to collective bargaining freely and responsibly conducted. That is what we are speaking about.
455 I found it a little difficult to follow or to detect the exact difficulties in the minds of noble Lords for that reason.
When one says in a definition of this kind:'collective agreement' means any agreement or arrangement…one does not stop there; one goes on to read the qualification of the agreement or arrangement. The first qualification is that it must be for the time being in force, and that it must be between, made by and on behalf of, on the one hand, workers, broadly speaking, and on the other hand employers. That is what we mean by the collective agreement. The same applies to an arrangement, except that arrangements may also be made by joint bodies as well. But they cannot be unilateral; they must involve both parties. That is the point. The essential element is that they cannot be unilateral. The noble Lord said that he thought that perhaps this point was capable of a simple explanation. I have given what I hope is a simple explanation, and I think it is the only explanation one can give in these circumstances.
§ LORD STOW HILL
Can I possibly assist? What concerned me was this. We start off in Clause 32 with a collective agreement in writing, so that at least you can look at a document. When you are converting that document into something which has legal force and you want to know what your legal obligations are, then at least you have something that you can read, you can copy and you can put it on a notice board. At least you know what it says. But what the new clause seems to me to be doing is to exclude the requirement that it shall be in writing. So the agreement need not be in writing: it could be oral. And not only that, but it need not be a spoken agreement. It need not result from a conversation between two people or a number of people. It can be merely an arrangement; that is to say, something which you spell out from the conduct of parties over a particular time. That is how I think it would be construed by the courts., That seems to me to be extremely vague, and if you are going to say that that shall have the effect in law of a contract, so that it can be enforced, and if you find that organisations of workers are parties Ito it, it is another way 456 of saying that all the individuals—when you are not talking about a registered union—in the unregistered union are parties to that enforceable contract. Where does one get to?
§ 6.22 p.m.
§ LORD DRUMALBYN
I endeavoured to start from the point of Clause 32 in order to try to make this clear, because Clause 32 is quite clear in saying that every collective agreement whichis made in writing after the commencement of this Act,"—which is a very important qualification—and does not contain a provision which (however expressed) states that the agreement or part of it is intended not to be legally enforceable, shall be conclusively presumed to be intended by the parties to it to be a legally enforozable contract.But it has to be in writing for that purpose.
What we are trying to do here is to cover all the various kinds of arrangements that we have been told many times in the debates in this Committee are come to in the course of collective bargaining. We are trying to cover the whole lot. That is all we are trying to do in defining what a collective agreement is. It can cover arrangements that have grown up, no doubt, in the first place by an agreement on a small scale, and then grown into a custom that is well recognised, possibly throughout an entire industry. That is what we are talking about. Then, to apply this in practice, let us take procedure agreements, for example. When, under Clause 35, the unit is suffering from defects, such as the absence of a procedure agreement, or a procedure agreement which is not working or which is being flouted and as a result there are stoppages, and so forth, in such circumstances it is possible to put the procedures envisaged in the Bill into operation. Something has broken down and you have to know what you arc talking about in regard to what has broken down. In these cases very often the collective agreement has broken down, but it may take manifold forms, and you want to cover the lot. I hope I have explained that in realistic and practical terms.
We want to be able to cover all the circumstances where agreements or arrangements of any kind are made in 457 whatsoever way and however recorded, or even if not recorded at all. But when we are speaking about enforceable agreements, that is quite a different thing. Those must be in writing; and one of the purposes of this particular operation, transferring parts of the Bill to this one clause, is to make that distinction and to put it beyond a peradventure.
§ LORD DRUMALBYN
It does not have to be said, because it is a collective agreement in writing, and a collective agreement subsumes an arrangement.
§ LORD STOW HILL
But the words which appear in the definition are "in whatever way and in whatever form". Putting it at its very lowest I should have thought that that would introduce considerable doubt as to whether or not the collective agreement is to be in writing and whether an arrangement which constitutes a collective agreement is to be an arrangement which is evidenced in writing. I earnestly press upon the Government that it would be desirable to make it perfectly clear that the only collective arrangements which can be enforceable are collective arrangements or collective agreements which are in fact in writing.
§ LORD DRUMALBYN
If the noble Lord is puzzled about this and is uncertain whether that is so or not, we shall be glad to look at it and to see whether there are real grounds for his puzzlement. It seems to me to be perfectly clear, but if the noble Lord is puzzled then of course I will look at it again.
§ LORD BROWN
The noble Lord will remember that we have spent a little time sorting out this point, and perhaps my noble friend and I can claim not to be stupid people: and, of course, it must be remembered that people in industry will have to understand this. T do not think there is any doubt about it now, and quite understand the position as the Bill is written, if it is properly interpreted by the noble Lord. Nevertheless, the noble Lord will realise that the present position 458 raised doubts in the minds of my noble friend and myself, and it is perfectly reasonable to suppose that it may raise doubts in the minds of other people in industry, so that if it could be clarified I think it would be helpful. It is an exceedingly important point, as the noble Lord will no doubt agree.
§ LORD STOW HILL
Not only that, but there would really be a most gorgeous muddle if we are to have, side by side, collective agreements in writing which do not contain a provision that they are not to be enforceable and therefore are to be enforceable; collective agreements which are not in writing and do not contain such a reference and, therefore, are not enforceable, and also collective agreements which are not in writing but which do contain such a term, as to which I do not know whether they would be enforceable or not. They certainly would not be if they came within Section 4 of the 1871 Act but I do not know what the result is now. I think there would be, as I say, a most gorgeous muddle unless one at least made it absolutely clear what is being done, especially if one is looking at it from the position of the large numbers of unfortunate people who are members of unregistered unions—goodness knows what their position would be!
I LORD DRUMALBYN
We are not really doing anything here; we are defining what is in fact being done in industry. The noble Lord, with his very tidy legal mind, wants to try to classify all this, in case it comes to the courts. But presumably it is only the enforceable agreement in writing that will come to the courts. The noble Lord speaks about a muddle. Many people think that the whole of our lives, and the land we live in, are a muddle; and some people would like to see it reduced to very great order. But the fact is that there is an infinite variety of practices and ways of life, and all the rest of it, and they cannot be reduced to a formula. What we have tried to do in this definition is simply to cover the whole field of what is meant by a "collective agreement" in the course of working in industry.
§ LORD BROWN
I do not want to prolong this debate, but there is a little unrealism here. Take the case of shop stewards: they will get together; they may have a proposal from the management; they say, "This should not be 459 here; let us make some amendments." Then somebody says, `" Steady boys. Is this going to be legally enforceable?" Then somebody may say "Well, it is temporary so that we can see how it works." Then somebody suggests that it should be written down and somebody will say" Ah, but this could come under the definition of an "arrangement". They will then get into the same sort of discussion that we are in now. It becomes important from the point of view of shop stewards on the floor of a factory deciding what their procedure is going to be.
I am raising this point for a very precise reason. I used to be associated with an industrial company. I was down there three weeks ago, and this point was raised with me. I had a discussion with some shop stewards, and could not answer them. This clause was not available at that time; I did not have it by me. When I saw it I thought it was very helpful, and I think it is a very good clause indeed; but it left me with this dubiety in my mind, which I know will arise in the minds of those particular shop stewards and perhaps many others. Perhaps the Minister could have a thought about this. We are not debating the substance of what he is saying; We are debating the need for ultimate clarity, for people not used to reading Acts of Parliament, in the wording of this particular clause.
Of course, I shall be glad to look at it again, but I suggest that the object of this exercise is to eradicate a misunderstanding that noble Lords are clearly having difficulty in eradicating from their minds. I think they will come to see that this is probably all right, but I will look at it because I feel that, as the noble Lord will recognise, a public relations exercise needs to be done. We want to get agreements clear in every case, however they are made. One of the reasons we want to have them enforceable is simply that if people know that agreements will be capable of enforcement they will be that much more careful to make them clear. We want to have them clear but we are concerned. here only with the definition as a whole.
§ On Question, Amendment agreed to.460
§ Clause 158 [Interpretation]:
§ LORD WINDLESHAM
I beg to move Amendment No. 287C. and perhaps I may speak at the same time to No. 290A. Both of these Amendments are consequential on the new clause which has just been agreed to by the Committee. I beg to move.
Page 115, leave out lines 13 and 14.—(Lord Windlesham.)
§ LORD BEAUMONT OF WHITLEY
The noble Lord said No. 290A. That is an Amendment by the noble Lord, Lord Platt, and myself.
§ On Question, Amendment agreed to.
LORD WINDLESHAM moved Amendment No. 288:
Page 115, line 33, after ("employer") insert ("(subject to subsection (2) of this section)").
§ The noble Lord said: This is a drafting Amendment which arises as a consequence of the addition of subsection (2) of this clause in another place. Subsection (2) makes clear that the definition of "worker" covers certain individuals in the National Health Service who enter into contracts with Executive Councils to perform services. The people in question —general medical practitioners, pharmaceutical, dental and opthalmic practioners —all have contracts with the National Health Service Executive Councils. The Councils pay them for performing services and are under a statutory duty to make provision for the performance of those services, which is fulfilled by the practitioners performing the work for which the Councils pay them. The subsection treats the Executive Council as the employer in relation to those workers, and this Amendment qualifies the definition of "employer" accordingly. I beg to move.
§ On Question, Amendment agreed to.
§ 6.34 p.m.
LORD PLATT moved Amendment No. 288A:
Page 115, line 37. after ("employed") insert (" or in the case of workers whose salary or conditions of service are determined by any Minister of the Crown, such Minister").
§ The noble Lord said: This Amendment and No. 290A (if I may speak to that at the same time) cover the same point, the point being that doctors in the National Health Service—and this may, of course, apply to other people in other professions, but I am thinking particularly of doctors in the National Health Service—are, strictly speaking, employed by the hospital board or management committee, if they are in the hospital part of the service, or by the executive committee if they are in general practice. Nevertheless, the whole of their terms and conditions of employment, and their salaries, are determined centrally by the Department of Health and Social Security, or, in certain cases in the public health service, by Whitley Council agreements. These two Amendments would make it quite clear that in those circumstances the medical profession must negotiate salary matters with the central Government, as it is there that these conditions and terms of service are decided. I beg to move.
§ LORD BEAUMONT OF WHITLEY
I should like briefly to support this Amendment. The whole area of quasi-State employment has in the past produced a considerable number of anomalies of various forms. Members of your Lordships' House will be aware of some of the difficulties with university teachers, as another profession which is involved in a situation where technically the employer is a body to whom they are immediately directly responsible, but where, as the noble Lord, Lord Platt, said, the whole range of salaries, the whole decision about how much money is to be available, and very often the terms on which they work, is in fact decided by the Crown. It is often very frustrating for these people actually to get any body to admit that it is technically for any real purpose their employer, and this has been particularly the experience of university teachers. I am not entirely certain how this Bill affects the position of such people and how they will deal with their employers. So from my point of view this is rather a probing Amendment, because I should like the Government to be able to shed some light on this very difficult and obscure area of employment.
§ LORD WINDLESHAM
I am grateful for the way in which this Amendment has been moved. It touches on a situa- 462 tion that has caused quite widespread concern and discussion, particularly among the teaching and medical professions. The difficulty of accepting this Amendment as it stands is that it would mean that doctors and dentists and teachers would have two different employers. By virtue of this Amendment, they would be employed by the Minister and also, by virtue of the existing definition of "employer" in the Bill, and in fact their contractual status with their present employer, by the relevant executive council, hospital board, local health authority or local education authority. This would be a situation which would cause widespread confusion.
The realities of the position are that the employing authorities in the National Health Service, and the local education authorities, are the de facto employers of doctors, dentists and teachers; the Bill recognises that this is the present situation, and we think it is quite right in so doing. Of course we have to recognise what the noble Lord, Lord Platt has said, that the Government are an interested party in the negotiations over the terms and conditions of employment of doctors, dentists and teachers, and we are aware of the feeling that has been expressed by some representatives of these professions that the Bill might, in some way, be able to acknowledge this, particularly for the purposes of those parts of the Bill which concern industrial disputes. I can say to the noble Lords who have moved this Amendment that we are giving active consideration to this problem, but we do not think that an Amendment exactly on these lines, or on these lines at all would really help.
Another point to mention is that there must be doubts about whether a reference to the word "determined" after "conditions of service" is the right way to define a Minister's interest in this respect. That particular word does not seem to be an altogether appropriate choice. A further effect of the Amendment would be to make the Minister for the Civil Service the employer of civil servants in all cases, and this would be too restrictive. The Bill leaves open that the employment of civil servants might be different for the various purposes of the Bill, as common sense dictates in each case. In some cases it might be that the 463 Queen should be regarded as the employer in a matter concerning the whole of the Civil Service. But in other cases it might be that the individual Department should be regarded as the employer, especially in matters concerning individuals which are essentially within the responsibility of that particular Government. Department; and we believe it would be desirable to retain this flexibility. These are the reasons why we do not feel able to advise the Committee to accept this Amendment; but I hope that the two noble Lords will note the assurance that I have given that this is something on which representations have been made to my right honourable friend the Secretary of State, and he is considering whether or not there is some other way round the problem to meet the representations that have been made to him.
§ LORD BROWN
The Minister has said that he has been giving this matter active consideration. I hope he will not overlook the fact, which may not be known to every member of the Committee, that Ministers are deemed at law to be self-employed. Whether a self-employed person can be an employer, I do not know. If, in the course of looking at this Amendment, he comes to the conclusion that Ministers should cease to be self-employed, I think it would be an admirable solution to the problem if that is the form in which it arises, because the present position of Ministers is one that is most unjust to them. I will not go further into the matter at this stage, but everybody who occupies the role of Minister must know of the injustice which attaches to that unfortunate decision that they are self-employed. It has a bearing on this Amendment.
§ LORD WINDLESHAM
There is another reason why this particular approach raises considerable difficulties. The way my right honourable friend's mind is working is to look at what constitutes an industrial dispute, because we understand from the B.M.A. and the N.U.T. that they are particularly concerned about the provisions concerning industrial disputes. So it may be that by looking at that aspect of the Bill, rather than the aspect of who is or is 464 not the employer, the difficulties could be overcome.
§ LORD PLATT
In those circumstances, if the noble Lord, Lord Beaumont of Whitley, agrees, I will withdraw the Amendment. May I include Amendment No. 290A which really deals with the same position, though in a slightly different group of the profession? Nevertheless, I hope that the Government will bear in mind that we are being, as I would put it, dragged into a Bill which really deals with industry, although we in the medical profession, are not an industry, and we do not want to lose some of the privileges which we have had ever since there has been a National Health Service. One of those privileges is direct negotiations with the Government.
§ Amendment, by leave, withdrawn.
§ THE DEPUTY CHAIRMAN OF COMMITTEES (BARONESS WOOTTON OF ABINGER)
Amendment No. 289 is drafted in the terms of the circulated Erratum.
§ 6.44 p.m.
§ EARL FERRERS moved Amendment No. 289:
Page 16, line 1, leave out from ("organisations") to (" 60(2)") in line 3 and insert (" has the meaning assigned to it by sections 59(2) and 84(1)(b) of this Act;
federation of employers' organisations " has the meaning assigned to it by section ").
§ The noble Earl said: On behalf of my noble friend Lord Drumalbyn I beg to move this Amendment. Perhaps I might speak at the same time to Amendments Nos. 290 and 291, all of which cover the same point. These three Amendments are all consequential upon the inclusion in another place of Clauses 82 to 84, which provide for the special register. The Amendments provide the necessary drafting Amendments, because of this inclusion, to the definitions of "federation of workers' organisations", "independent", and "organisation of workers". I beg to move.
§ On Question, Amendment agreed to.
Page 116, line 7, leave out ("of workers"). —(Earl Ferrers.)
§ On Question, Amendment agreed to.465
THE EARL OF DUDLEY moved Amendment No. 290F:
Page 116, line 28, leave out ("this section") and insert ("section (Meaning of "collective agreement" and "procedure agreement") of this Act").
§ The noble Earl said: I think this Amendment is a consequential Amendment to the new clause (Meaning of "collective agreement" and procedure agreement") and a paving Amendment to Amendment No. 291A. When lines 27 to 44 on page 117 have been removed from the Bill, I am unable to find that there will be any further reference to a procedure agreement, or any matter to which a procedure agreement can relate, in Section 158. If so, then it seems to me that line 28 of page 116 requires to be amended in the way I have proposed. I beg to move.
§ LORD WINDLESHAM
The noble Earl is quite right. I should like to congratulate him on his diligence, and advise the Committee to accept this Amendment.
§ On Question, Amendment agreed to.
Page 117, line 20, leave out ("section 59") and insert (" sections 59 and 84(1)(a)").—(Earl Ferrets.)
§ On Question, Amendment agreed to.
LORD WINDLESHAM moved Amendment No. 291A:
Page 117, leave out lines 27 to 44.
§ The noble Lord said: On behalf of my noble friend Lord Drumalbyn, I beg to move Amendment No. 291A. This is the one that, in error, I described as Amendment No. 290A earlier when I spoke on Amendment No. 287. This Amendment deals with the same point, and removes the definition of "procedure agreement" from Clause 158, which is now contained within the new clause after Clause 157.
§ On Question, Amendment agreed to.
§ LORD PLATT moved Amendment No. 292:
Page 117, line 44, at end insert—
(" Professional qualification' means membership of a body corporate to which entrance is by examination or the exempting equivalent
at not less than University degree standard, such body supporting an ethical code of behaviour regulating the conduct of its members by disciplinary procedures duly established.")
The noble Lord said: In the unavoidable absence of my noble friend Lord Halsbury, who sends his apologies to the Committee, I beg to move Amendment No. 292. This Amendment seeks to define what might be meant by "professional qualification", on the assumption that the Government, as promised by the noble Lord, Lord Drumalbyn, are going to look again at the rights, on the one hand, and at the specific dangers, on the other hand, of professional people under this Bill. The noble Earl, Lord Halsbury, moved a number of Amendments earlier, and on May 10 (column 746 of the OFFICIAL REPORT) he moved an Amendment which sought to define "professionally qualified employees", to ensure that they were not overwhelmed by numbers of workers of quite different categories. On that occasion the noble Lord, Lord Drumalbyn, said (column 768) that he was
…much impressed with the case which the noble Earl, Lord Halsbury, has made, which has been supported all round, and we think it right that it should be brought clearly to the attention of the C.I.R. that they have to bear in mind the special needs…of professional people. For that reason when we come to Amendment No. 252A…we shall be very favourably disposed to look at something along those lines.
§ With that assurance the Amendment was withdrawn.
The noble Earl, Lord Halsbury, on May 18, moved Amendment No. 252A (column 343 of the OFFICIAL REPORT) to take account of the fact that there are such people as professional people. I spoke to that Amendment, and the noble Lord, Lord Drumalbyn, then replied:
I readily respond to the noble Lords who have spoken. I assure the noble Lord, Lord Platt, that we are very well aware of the great value that the professional conscience has in the quality of our life. It is something that we wish to make quite oertain we shall preserve. It is certainly no part of this Bill in any way to affect that adversely."—[Col. 345.]
§ He was not yet ready to take any more definite action on the subject, but he promised that this would he looked into and that the Government would have something to offer to us at Report stage. In writing to me about this Amendment, the noble Earl, Lord Halsbury, pointed out 467 that he was not trying to define a "professional man" in abstract, but only for the purposes of this Bill. He said that it has been said that a "professional man" could not be defined because of all the grey areas, and because the semi-and sub-professional people would be offended if they were left out of the definition, but he does not accept that limitation or the reasons given for it. He said that the object of this exercise is to protect a certain class of person from coming unfairly between two fires.
§ Your Lordships will remember that the noble Earl described to the Committee how professional people were in the difficulty that, first, they owed an allegiance to their work, perhaps to their patients, or in the case of lawyers or engineers to their clients; and, secondly, they owed allegiance to a union. Therefore, he said, the body to which the professional workers belong must exist, the code of practice must exist, and the disciplinary procedures must exist, for they must be people who have subjected themselves to a professional discipline and to an ethical code. Over and above this, the individual must be of a type who is entrusted with a responsible position, since the consequences of his behaving contrary to the code of conduct of his profession will be serious; that is to say, he must be a member of a body which only admits by examination or the exempting equivalent at not less than university degree standard.
§ The Amendment which is now proposed incorporates these points of view, and seeks to define a "professional person" within the meaning of the Act as it might be. I should like to stress two points: first, that the person belongs to a profession which has an ethical code and some disciplinary means of enforcing professional behaviour; and, secondly, that we feel strongly that it is not sufficient to leave this matter to the code of practice which we have not yet seen, and it should be part of the Bill. I beg to move.
§ LORD DRUMALBYN
As your Lordships will be aware by now, the Government are sympathetic to the—I was going to say aspirations, but I do not think that is quite the right word—to the desire of the professions to make 468 certain that their professional standards are in no way diminished or depreciated as a result of this Bill. We have already had a full discussion on the position of professional workers and, as the noble Lord, Lord Platt, is well aware, we are sympathetic to the case that he has put; and I willingly reaffirm that sympathy. Moreover, we have given the undertaking that he has quoted. But in order to require a definition of "professional qualification", there would have to be references in the Bill itself for which that definition was necessary. At the moment, as I understand it, the term "professional qualification" appears only once in the Bill, and that is in Clause 22, which relates to fair and unfair dismissal. That states in subsection (6) that:'qualifications ' means any degree, diploma or other academic, technical or professional qualification relevant to the position which the employee held;".Obviously, any further definition of "professional qualification" would have to fit in with that definition to be meaningful. I say that only in passing, because I think it would be an error to put in a definition of "professional qualification" in anticipation of an Amendment which has not yet been made to the Bill.
So I suggest to the noble Lord that we should, first of all, consider what Amendments are to be made to the Bill; and then, in the light of that, consider whether a definition of "professional qualification" is necessary, and what it should be. One could argue for some time about this definition. The elements Which the noble Earl, in this letter to the noble Lord, Lord Platt, included as necessary in this case, appear to go rather further, since the element of being entrusted with responsibility is also introduced. In the circumstances, I hope that the noble Lord will not press for this definition for the reasons I have stated, and that he will be willing to withdraw the Amendment on the assurances that he has already received.
§ LORD WYNNE-JONES
This Amendment is one which obviously arises from the matters which were discussed earlier on, as the noble Lord, Lord Platt, has pointed out; and I have been in support of the views of both the noble Lord, Lord Platt, and the noble Earl, Lord 469 Halsbury. I find some difficulty about this Amendment, and therefore I agree with the noble Lord, Lord Drumalbyn, that it might be worth while leaving the matter.
May I explain why I have some difficulty in it? The professional qualification is defined as meaningmembership of a body corporate to which entrance is by examination or the exempting equivalent ",and so on,such body supporting an ethical code of behaviour regulating the conduct of its members by disciplinary procedures duly established ".There are in my own profession a very large number of people employed in the chemical industry who have a perfectly acceptable professional chemical qualification but who are not necessarily members—in fact, many of them are not members—of the Royal Institute of Chemistry, which I think is the only body in the chemical profession which would fall into this category. One also has a large number employed in the chemical industry who are members of the Chemical Society, and of other bodies which are professional bodies but would not satisfy the particular requirements laid down here.
So, although the general point that is being made here is a perfectly sound and reasonable one, I think it would require further investigation before one could accept it; and it has to be remembered that it is probable that the chemical industry employs a greater number of professional people than any other industry. There is a very large number indeed of qualified people in the chemical industry, and I think that it would raise very difficult problems if perhaps one-half or two-thirds of them fell within this category and the other half or one-third, with virtually identical qualifications, did not. So I agree with the noble Lord, Lord Drumalbyn, and hope that perhaps the noble Lord, Lord Platt, will be prepared to consider not persisting with this Amendment at the moment, although I am quite sure that the matter of definition will have to come up later.
§ LORD SOMERS
May I raise one other point with regard to this Amendment? I think the noble Lord, Lord Platt, knows that I am highly sympathetic to the professions and wish to preserve their rights, but the Amendment stresses the necessity 470 of degree standard. Take the teaching profession. I think that only a minority of the teaching profession have degrees. They may possibly have diplomas, but certainly not degrees; and they are not members of any body corporate. Therefore, they, apparently, would not be covered by this Amendment. Although I should like to see the professions covered in some way, I do not think this Amendment is quite the way to do it.
§ LORD PLATT
I really agree with all the comments that have been made, and I agree above all with the fact that this is a very difficult matter. I was not going to say that the Amendment would not be moved, because I very much wanted this chance to air once again the difficulties of the professions in coming into a Bill which is designed for industry. I am quite sure that if the noble Earl, Lord Halsbury, were able to be here he would be stressing, in answer to the noble Lord, Lord Somers, and to some extent to the noble Lord, Lord Wynne-Jones, that what he really had in mind and why certain professional men needed this protection, was this problem of what he called "coming between two fires". I suggest that the noble Lord, Lord Somers, may agree that this does not occur in the teaching profession to the same extent as it would, for instance, with professional engineers and doctors. But these are certainly controversial questions. What I want to ensure is that the Government take this seriously, and T am quite convinced now that they do. I hope that they will find some way out of this difficulty, because I am sure that the professions are far more important than anybody would think from reading the bare bones of this Bill—in which, I think, as the noble Lord, Lord Drumalbyn, has just reminded us, the word "professional" is mentioned only once. With those remarks, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 7.4 p.m.
LORD WINDLESHAM moved Amendment No. 292M:
Page 118, line 9, after first ("a") insert ("concerted").
§ The noble Lord said: I beg to move this Amendment on behalf of my noble friend Lord Drumalbyn, and it might be for the convenience of the Committee if 471 I speak also to Amendments Nos. 292K and 292L, which are linked with it. The purpose of these three Amendments is to ensure that for the purposes of the Bill the definition of strike "accords to what is generally accepted to be the interpretation of this form of industrial action. Since the Bill contains a number of unfair industrial practices in respect of organising strike action for unfair purposes, we think it is important that the definition should express the general interpretation of the type of action that constitutes a strike. For this purpose, therefore, these Amendments are intended to make it clear that the definition applies to any concerted stoppage of work carried out by workers in contemplation of or furtherance of an industrial dispute irrespective of whether the stoppage is in breach of terms and conditions of employment, and so is contractually enforceable in breach of contract, and where it is carried out during the workers' employment or after its termination.
§ It is Amendment No. 292L which contains the heart of the matter in this series of three Amendments altering the definition of "strike". By these additional words the Bill will make clear that for the purposes of the definition it does not matter whether a concerted stoppage of work results in breach of contract or not, or whether or not it is carried out after due notice has been given to strike, or to terminate employment, and is carried on after expiry of that notice. Any of these forms of action will fall. as they do now in practice, within the definition of a strike.
§ I should add on this point only that these Amendments do not alter the current situation. The Donovan Commission, in paragraph 936 and onwards. pointed out that strikes may be preceded by no notice or some notice, and went on to argue that even where collective notice to terminate employment is given it is not the intention or desire either of the strikers or the employer to sever the employment relationship permanently. It is for this reason that these Amendments have been put down, to clarify the definition of "strike" in the interpretation clause, and to bring it into line with what is normally understood to be the meaning of the word in current industrial practice. I beg to move.472
§ LORD STOW HILL
I had always understood the expression "strike" to mean what the noble Lord has just said it means, and that it was irrelevant whether notice had or had not been given. But I confess that when I read the definition which is at present in Clause 158 I thought that it precisely represented what I had conceived a strike to be. I gather that the noble Lord is saying that the Amendments again perpetuate the existing concept of a strike. I do not quite follow why they are moved when I should have thought that the only meaning that could be attributed to the definition in the Bill is precisely that: that it covers any concerted strike action, whether or not notice has been given. The noble Lord says that he wishes to remove any doubt about it. I approve that purpose; but where is the doubt in the definition as at present drafted? The reason that I take up time on this matter is that one must know exactly what one means by "strike" in the framework of this Bill. This is a matter of importance.
§ LORD WINDLESHAM
It is, and I am grateful to the noble Lord for raising the question. As to the definition as it is in the Bill at the moment, the view was taken that it would not necessarily include concerted terminations of contracts; in other words, if a group of individual employees agreed together to concert giving notice that they were going to terminate their employment, let us say a week ahead, in order to improve their bargaining position, that would be a collective termination of contract, notice having been given, and might not have been covered under the definition of "strike" as it was before the Amendment was submitted. The Amendment would mean that if that was the intention of the parties, if they were not really saying. "We are ending our employment with this employer" but their intention was to further the process of collective bargaining, it would be regarded as a strike under this Amendment. This is in line with the way in which the courts have interpreted the meaning of the word "strike", for which at the moment there is no statutory definition.
§ LORD DIAMOND
From what the noble Lord has said, I take it that that would not mean that the employer would have the right to terminate their employment by virtue of their having given a 473 concerted notice of termination of employment. It is for the purpose of the furtherance of their negotiation and not for the purpose of taking on a different job in another factory.
§ LORD WINDLESHAM
The only thing that we must keep in mind—the noble Lord and I took part in the debate on Clause 143 last night—is that this is distinct from the question of dismissal. It is not a corollary of what we were talking about in Clause 143. What we are talking about now is the strengthening of the definition of "strike".
§ LORD DIAMOND
What I was going on to say—and fortunately and coincidentally the noble and learned Lord the Lord Chancellor is with us again—is that I was yesterday touching on the question of giving the appropriate notice—which means a great deal of protection as compared with not giving appropriate notice. I merely draw attention to this Amendment and to the original definition, both of which centre on the concerted group of workers. In short, an individual worker giving notice in this way or walking out is not what we are talking about; we are talking about a group of workers concerting their action together. It follows that in order for them to get the protection deriving from giving due notice, they must all be of a like character of employment in so far as that term of their employment is concerned; namely, the term of giving notice, the period of employment. Therefore it follows that the Government are restricting the right to strike except for groups of persons who are employed on the same period. This was a point I was trying to make with such force and clarity as I could yesterday, when all I succeeded in doing was not to get the understanding of the noble and learned Lord hut to get his reaction, if I may put it in a courteous way. I want the Government to understand, if I am right in this, that it is a wholly unsatisfactory position. It is, in effect, preventing strikes except in the case of those who happen all to be engaged in the same period of notice.
§ LORD WINDLESHAM
I do not think the noble Lord is right on that. My noble and learned friend undertook to look into the point thoroughly and to write to him. I do not think that I 474 ought to take it further, but I believe that he will find that there is a distinction between the situation he is describing and the Clause 143 situation, which is concerned to give protection against proceedings for breach of contract or tort or various other things. If one particular individual has not given the due period of notice, he would not have that particular immunity; although some other employees might have that particular immunity. There is a difference here between the group working collectively and the individual in his relations with his employer. But this is a complicated matter, and the noble Lord got a strong assurance from my noble and learned friend last night.
§ On Question, Amendment agreed to.
Page 118, line 10, leave out (" which is concerted by them ").—(Lord Windlesham.)
§ On Question, Amendment agreed to.
§ LORD WINDLESHAM: I beg to move Amendment No. 292L.
Page 118, line 12, at end insert (" whether (in the case of all or any of those workers) the stoppage is or is not in breach of their terms and conditions of employment, and whether it is carried out during, or on the termination of, their employment ").—(Lord Windlesliam.)
§ On Question, Amendment agreed to.
§ On Question, Whether Clause 158, as amended, shall stand part of the Bill?
LORD STOW HIILL
Inevitably we have discussed in anticipation, as we went through the earlier clauses of the Bill, a number of the important provisions of this definition clause, but I feel that the Committee would agree that it would be wholly wrong for us to pass from this clause without looking rather closely at some of the provisions which we have perhaps not yet adequately considered. May I start with a very small drafting point on which I rather think I am right? If so, the Government can put it right easily. In page 115, line 19 in the definition of "collective bargaining". surely the expression "in accordance with this section" has now been superseded because of the new clause introduced. That is a 475 small drafting point and perhaps the Government will look into it.
To get to an immediately important and substantial point, I submit that it is desirable to ascertain the Government thinking for changing the definition of a dispute by narrowing it. Under the existing law the dispute is in the first place called a trade dispute. It now becomes an "industrial dispute". That is a simple question of terminology of no importance whatever; but the scope of the dispute is narrowed. The existing definition is to be found in Section 5(3) of the Trade Disputes Act 1906, which, read together with the 1875 Act, sets out the modern definition which is used. The characteristic of that definition for the purposes of the consideration I am putting before the Committee is that it includes the words, "or between workmen and workmen." In other words, the dispute can he a trade dispute within the meaning of that definition if it is a dispute between workmen and workmen. The noble and learned Lord, Lord Donovan, and his Commission carefully considered that point, and they deal with it at page 220 of their Report, in paragraph 820. There is set out the difference of view between the minority of the Commission and the majority.
If I have correctly understood the position, the Government have accepted the view of the minority and rejected the view of the majority, which view I collect from page 274, Recommendation 1096 which readsSection 5(3) of the Trade Disputes Act 1906, which defines the term trade dispute' for the purpose of that and other Acts, does not need any substantial alteration.The majority therefore recommended that the definition contained in the 1906 Act should remain as it is. In order to indicate the change I think it would be right, and not wasting the time of the Committee on what is after all an important matter, to cite from paragraph 820, which sets out the minority view which the Government have, I think, accepted. When I say "I think" I should be most grateful for guidance. I have looked at the consultative document issued by the Government and I cannot find guidance in that. Paragraph 820 reads:The following members of the Commission, namely Lard Robens. Sir George Pollock and 476 Mr. John Thomson, are of the opinion that demarcation disputes between trade unions in which the employer is neutral (that is, is indifferent as to which of the contending parties' members do the particular job) should he excluded from the statutory definition of trade dispute, and that this should be achieved by deleting the words ' or between workmen and workmen '. They point out that the dispute they have in mind is not of the employers' making, that he can do nothing to resolve it and that in these circumstances it is unjust that he should be debarred from exercising legal remedies which might otherwise be open to him. The remaining members of the Royal Commission consider that it would be difficult to distinguish and define a demarcation dispute in which an employer was completely neutral and that as productivity bargaining spreads employers are likely to become more involved in defining the ditties of particular workers. Demarcation disputes moreover are not nearly so costly in terms of working days lost as they used to be, and the problem is not so pressing as to justify altering the definition of a trade dispute in the way proposed. To do so would, in any event, not solve the dispute: it would merely leave the employer free to sue for damages in certain cases where he cannot sue now. Whether he would take advantage of such freedom is doubtful.There is the different view. The relevant wording, as I take it from the definition in Clause 158, is that the industrial dispute must be a dispute between employers and workers; that is to say, the Government have accepted the minority view that the demarcation dispute is not within the definition of industrial dispute unless it is a dispute across the table between employer and workers in which the employers are involved. In so doing, they reject the concept which is included in the 1906 definition, that a dispute can be a dispute between workmen and workmen only. I hope I have got that right, and I shall be glad if the Government would be so kind as to let me know. But they do, in terms, include in the definition a demarcation dispute, as I understand it, in sub-paragraph (c) which readsallocation of work as between workers or groups of workers.If I may try to summarise the position which results, as I see it, a demarcation dispute is within the definition of an industrial dispute provided always that it is a dispute in which the employers are in dispute with the workers. Under the existing definition the employers need not be involved in the dispute. It is a trade dispute even if there is a demarcation dispute only between workmen and workmen in which the employers are not involved. As I have said, it seems to 477 me, if I have got it right, that the Government are rejecting the Majority Report which forms the recommendation of the Commission, and they are in that particular respect accepting the Minority Report. If it is so, it is an important change and I should have thought it was imperative on this Committee, as a revising Chamber, to ask the Government to indicate what is their thinking on it and what induced them to accept the minority view and reject the majority view.
The next point of substance to which I should like to come is the definition of an official. Your Lordships will remember that when we were discussing Clause 135 which deals with the 60-day pause, and Clause 139, which deals with the pause requested in order that a ballot can take place on a strike, it became of very great importance to make up one's mind exactly what one meant by an official; because an official who had no responsibility other than qua-official could not be included in an order requiring a strike to slop, under either Clause 135 or Clause 139. That is the substantive importance of the definition.
As I ventured to say then, and I hope I am not being repetitive when I say it now, I would think that anybody in this Committee on being asked what the word "official" meant in that context—" What is an official of a trade union?"—would immediately give the answer that he was somebody like the regional organiser; somebody who is employed and paid as an officer to carry out some of the functions of the trade union; and that concept seems to be reproduced in the first half of the definition which reads:' official ', in relation to an organisation of workers or an organisation of employers, means any person who is an officer of the organisation or of a branch of the organisation …So far one clearly has included a paid officer who is employed on a contract of employment. Then it seems to me that the definition is very greatly widened, and I should be much obliged if the Government would indicate their view of this, and their thinking on it. Again I am not criticising, but asking for information about why it is they came to formulate the definition in this way. I think it is a new formulation. It goes on:or who (not being such an officer) is a person elected or appointed in accordance with the rules of the organisation to be a repre- 478 sentative of its members or of some of them, including (in the case of an organisation of workers) any person so elected or appointed who is an employee of the same employer as the members, or one or more of the members, whom he is to represent;The precise ambit of that definition becomes, I think, so important because of Clauses 135 and 139. Before that, I do not know of any reason for being so precise over the scope of the definition; but it seems to me, if I am right, that would probably include the president of the union, the general secretary, the national executive, the regional organiser, the shop steward it would include everybody, and I would assume from the language that that is precisely the Government's intention. Again, I am not speaking in any critical sense. I am not saying that the definition should not include those persons. I am simply saying that if we are examining this clause we should know precisely what it means. I should be grateful if the noble and learned Lord would say what is the Government's intention and give an indication of the thinking which led them to adopt this definition. I am not criticising; I am probing for information.
Clause 158 is a long clause and we have examined in anticipation a good many of its provisions—for example, those with regard to civil servants, workers and persons in employment—and I do not go into them again. With those supplementary questions, unless other noble Lords wish to supplement them, I think I have covered the basic features of this fundamental and important definition clause.
§ THE LORD CHANCELLOR
The noble Lord rightly drew attention to the fact that the definition of "trade dispute" in Section 5 of the 1906 Act is neither verbally the same nor the same in extent as the definition of "industrial dispute" on page 116. He asked why we had accepted the minority view in the Donovan Report rather than the majority view. I think that is the wrong way of putting it. We adopted the definition given in this clause for reasons outside the Donovan Report. When we came to drafting, we were not necessarily accepting the arguments of the minority. It so happens that we have more sympathy with the majority in paragraph 820 than with minority, but it happens 479 that our definition coincides with one part of the paragraph dealing with the minority report.
The object we had in mind in arriving at the definition of "industrial dispute" was to cover the broadest possible range of disputes which might come within the various provisions of the Bill. We were not primarily concerned with the paragraphs of the Donovan Report to which the noble Lord referred. In addition to the phrase "condition of employment" which includes the physical conditions of work, it raises a number of basic issues which came within the definition—for example, the engagement of workers or termination of employment, allocation of work and so on. The definition, unlike the definition of "trade disputes" in the 1906 Act, includes disputes between organisations of employers and organisations of workers. So far that followed the recommendation of paragraph 822 of the Donovan Report. But that definition would include organisations when, as the Bill provides, they become corporate bodies. They will be able to sue and they will be sued in their own name.
If we had thought it necessary or desirable to include disputes between organisations of workers in that definition, we should certainly have done so, but I can think offhand of no circumstances—and this was the thinking behind the Government's view—in which a dispute between two unions not involving an employer could give rise to proceedings under the Bill or should do so. It is true, as I have said and as the noble Lord pointed oat, that the definition of "trade dispute" in the 1906 Act covered disputes between workers and workers. But apart from some doubts as to whether that definition covers as wide a range of association as the Bill's definition, we think that that Act is of little value for this, since it merely provided protection for individuals from a number of possible tort liabilities when carried out in contemplation of furtherance of a trade dispute, including inducement to breach of contract of employment. It is the case that, as a result of the proposed and implied repeal of Section 4 of the 1871 Act, legal proceedings could be instituted by an organisation of workers 480 in respect of breach of any agreement made with another union, whether or not committed in contemplation or furtherance of an industrial dispute, but this does not mean that all inter-union disputes committed in circumstances of an industrial dispute must come within the definition.
The definition of "industrial dispute", for the purpose of this Bill, is intended to cover those disputes which are dealt with in the provisions of this Bill—that is, agreements between workers and their organisation and their employer and his organisation. The noble Lord expressly referred to demarcation and recognition disputes between unions. Our view is that demarcation and recognition disputes between unions ought not to be liable to proceedings before the Industrial Court, if and so long as they remain arguments or differences between unions as such and differences in which the employer has not become involved, but that so soon as one of the unions tries to put pressure on the employer to accept its case and the pressure is resisted, the employer does become a party, but equally at the same time the dispute falls, for the purposes of the Bill, within the definition of "industrial dispute". For that purpose, if one of the competing unions involves the employer in the dispute—and it may be that if the dispute is not settled as I have suggested it ought to be they may be bound to do so—the employer becomes a party to the dispute. This is the realistic view. It happens also to be the view of the majority, rather than the minority, of the Donovan Commission, even though they did not recommend the 1906 definition on that score.
In so far as differences and disputes exist simply between unions, without involving the employer, our view is that they can be dealt with and ought to be dealt with (though perhaps it is not our business to say so) by procedures established either privately or by the T.U.C., including the Bridlington rules, to which reference has been made from time to time during our debates, and which, so long as the dispute is between unions only are probably the best way of proceeding. If they are not dealt with in this way, they can be referred to the Arbitration Board—that is to say, to the old Industrial Court under the Act of 481 1919. The noble Lord will not have forgotten, of course, that in that Act the definition of "trade dispute", which is the term used in that Act, is designed for that very purpose.
The Bill provides protection for and imposes duties on individual workers and their organisations, and provides for disputes between them and their employers and their organisations. In doing so, it covers, through the proposed definition of "industrial dispute", disputes between organisations of workers which involve their relations with their employer. This is what is needed for the purpose of this Act, and in our view it is all that is needed. I must apologise to the Committee for having taken a little time about that, but the short answer to the first of the two points put by the noble Lord is that he should move away from the Donovan Report and look at the Bill to see whether the definition we propose is apt for the purposes of the Bill. In our view, it is. So far as we can see, there is no set of circumstances in which a dispute between workers and workers, which stays as such a dispute, ought to be covered by the definition clause. If it ceases to be a dispute between workers and workers and develops into a dispute between workers and employers, as disputes have a habit of doing unless settled, then it is covered by the definition clause and caught by the machinery of the Act.
The next point concerned the definition of an official. I am not entirely clear as to the difficulty here, and it may be that when I have studied in detail what the noble Lord said I may have to supplement my answer, which may perhaps seem unduly short. What we had in mind, broadly, was that we wanted a wide definition which would cover a person who is officially acting on behalf of a union and with its authority because it is An essential part of the machinery of the Bill that such a person, so acting, involves the union and not himself. Of course, much of the argumentation over the rights and liabilities which we have been discussing is ranged round that definition. He asked me particularly about the latter words in the definition. They seem to me to be apt to cover the position either of a shop steward or of somebody who is genuinely appointed in accordance with the rules of a union to represent the people in a 482 factory on some particular matter. This is what is wanted, I think. I am not altogether clear why these things should give rise to difficulty. One wants a wide and flexible form of words, and I think we have reached it. If, having studied what I have said, the noble Lord later feels uncertain about any particular aspect, I shall be happy to deal with any query as far as I can. Meantime I have done my best to answer the two points that were raised.
§ LORD STOW HILL
I am grateful. With regard to the question of the official, I was not complaining but simply asking what, in the Government's thinking, the definition included. The noble Lord referred to a shop steward, but what about the president or the members of the national executive or the general secretary?
§ THE LORD CHANCELLOR
They are included, but they must be acting within the scope of their authority. The ordinary officers of a union present no difficulty, because they are easily ascertainable people, but the people who are less easy to describe and who require a more complicated set of words are those people who may be acting in an official capacity on behalf of the union, without necessarily holding any named office to be found in the union rules. That is what gives rise to a rather more complicated set of words than would be necessary if one had simply been dealing with "officers".
§ LORD WINDLESHAM
I should like to refer to my undertaking given at an earlier stage to give some further information on two points concerning the definition of "worker". These were raised by the noble Lord, Lord Delacourt-Smith, and they concerned the position of sub-postmasters and share fishermen. It might be convenient if I do this now as briefly as possible. As I forecast in the earlier debate, the National Federation of Sub-postmasters has had a meeting at the Department of Employment in order to discuss this matter with officials. As a result of that meeting, we are of the opinion that in general sub-postmasters, in their relationship with the Post Office Corporation, come within the definition of "worker" in Clause 158. I should like to point out that if there is any dispute about the matter it would not 483 be for the Government to decide whether or not any particular group of people came within the definition: it will be for the Registrar, the industrial tribunals or the National Industrial Relations Court to determine the question of whether persons in particular relationships are covered by the definition of" worker" or not.
The same qualification refers to the second category of people: the share fishermen. There are two categories of inshore fishermen: first, those who are remunerated partly by wage and partly by receiving a share of the catch. The others are remunerated solely by receiving a share of the catch. So far as the first category is concerned, their position is not essentially different from that of those industrial workers who are remunerated by wage plus commission or bonus. Because they are in receipt of a wage, these people are likely to have a recognisable employer and to be employed under some contract of service. Even if some are employed under a contract for services, which seems unlikely, they probably have to make those services personal ones. All these fishermen are likely to be covered by the word "worker".
The position of the second category, those remunerated wholly by a share of the catch is somewhat different. In practice these people would have no employer but would be engaged in a partnership or joint venture. In so far as they are akin 10 self-employed workers working under a contract for personal work or services, like the labour only sub-contractor, they will be covered by the Bill's definition of "worker"; but where there is no such contract and where the relationship between the fishermen is that they are engaged in a joint venture, they are not likely to be regarded as workers for the purposes of the Bill. In that case there will be no employer/ employee relationship. Therefore there is no single answer to the second question as to whether inshore fishermen are covered by the definition. Most will probably be covered, and some will not; but it would seem to depend upon the nature of employment in each case.
§ On Question, Clause 158, as amended, agreed to.484
§ 7.48 p.m.
§ EARL FERRERS moved Amendment No. 292N:
§ After Clause 158, insert the following new clause:
§ Power to limit certain provisions of Act to major undertakings
§ ".—(1) The Secretary of State may by order made by statutory instrument provide that the Industrial Court shall not entertain any application or complaint under such one or more of the provisions mentioned in the next following subsection as are specified in the order, if the application is made or the complaint presented on a date while the order is in force, unless the number of persons who on that date are employed in the relevant undertaking (as defined by the order), or, as the case may be, are employed in at least one of the relevant undertakings (as so defined), exceeds the number specified in the order as the minimum number.
§ (2) The provisions referred to in subsection (1) of this section arc the following provisions of this Act, that is to say, sections 10(2), 13, 35, 41, 43, 49 and 98(1)(b).
§ (3) In respect of any provision mentioned in subsection (2) of this section no order under this section, except—
- (a) an order revoking a previous order made thereunder, or
- (b) an order varying such an order by reducing the number specified in that order as the minimum number,
§ (4) No order shall be made under this section unless a draft of the order has been laid before Parliament and approved by a resolution of each House of Parliament."
§ The noble Earl said: On behalf of my noble friend Lord Drumalbyn, I beg to move this Amendment. Its purpose is to empower the Secretary of State by Order to bring into effect certain provisions of the Bill in respect of undertakings of a specified minimum size. We are anxious that both the Court and the Commission should not, in the early days of the operation of this legislation, be overwhelmed by a large number of applications. Therefore, in order to build up the case-load at a manageable rate, we concluded that the best course would be to take powers to limit applications initially to firms of a certain size. When it is clear that the dangers of overloading are past, the Secretary of State would be able progressively to permit applications in respect of smaller firms. This seems to us to be a sensible measure, and I hope that your Lordships will find yourselves able to agree to it.485
§ LORD STOW HILL
I can perfectly understand that it may be necessary, from a purely practical point of view, to take this power, but I confess that I look upon it with some apprehension. It is a power by a statutory instrument, which I accept would be subject to affirmative approval, in effect to deter people who otherwise would be entitled to go for relief to the courts which are set up under this Bill, from exercising their rights. That is the effect of it.
If the Minister is able to state, as I imagine he is, that because the Government are anxious in case there will be a serious build-up of cases there is no alternative but to deter some of them, then perhaps the Committee will have to accept, though I should have thought rather reluctantly, this new clause. But I think we should not do so without hearing in mind precisely what it does. The Government are by statutory instrument taking power, as I understand it, as a purely preliminary measure, to limit cases coming to the courts. If I read the Amendment correctly, there is nothing in it to limit the operation of this order to a transitional or specified time. If I have correctly understood its purpose, imagine that a strict constitutionalist like the noble and learned Lord the Lord Chancellor would be disposed to agree with me that this is a sort of provision that we should accept only with great hesitation. I would far sooner see a stern limit as to the time during which it can be used, and be assured that it will be brought to an end as soon as the overload, as it were, pans out and the courts can cope. I should like to see that written into the new clause. If I have understood the matter correctly, perhaps the Government would consider, if we accept the Amendment, writing into it something of that sort between now and the Report stage.
§ 7.52 p.m.
I think the noble Lord is a trifle pessimistic about this, and I can give him the assurance which he fundamentally seeks. This is not a negative provision in so far as we are preventing people from taking advantages which the Bill provides. As the noble Lord will appreciate, the Government are anxious that the provisions of this Bill should come into operation as quickly 486 as possible. It is purely a practical provision that we are trying to incorporate, which is that as soon as the Industrial Court and the Commission get under way it is desirable that they should not be flooded out with applications. This Amendment is really complementary to Clause 160(2), which gives the Secretary of State powers to bring in various Parts of this Act (as it will then be) at different times. We are suggesting in this Amendment that at the outset the Secretary of State should have the power to limit the size of undertakings which can take advantage of the Commission and the Court simply in order to enable it to build up a case-load in a satisfactory way. I can assure the noble Lord that it is the Government's desire to get this Bill into operation as soon as possible.
§ LORD STOW HILL
Personally I would not offer opposition or advise the Committee not to accept this new clause if the noble Earl were able to tell me that the Government will between now and Report stage limit the period of its operation. Several times, as I understood him, he has described this as a clause to operate only during an initial and definite period. If that is the case, surely it would be right to say that these powers, by statutory order, should not be exercisable after say, a period of one year, eighteen months or two years. Can the noble Earl say that he will at least consider whether the Government should not introduce such a provision into the Bill on Report?
I will certainly consider what the noble Lord says, but my initial reaction to that suggestion is that if it were the case that there were so many applications that they could not be dealt with adequately by the Court it would be a pity to empower the Secretary of State, by amending this Amendment, to put a deadline by which the final undertakings could make their applications to the Court. The whole purpose behind the Government's view of this—and it is here that we differ from noble Lords opposite—has been that we wish to get these provisions in as soon as possible. This Amendment is solely one of practicality. I think the noble Lord need have no fear that the provisions under this Bill will not be brought in as soon as practicable.
§ LORD GARDINER
Is it intended to make an order of this kind from the start and then see what the case-load is, or is it intended to see what the case-load is and then to alter the order, if necessary? If the intention is to make an order to make sure that there is not a flood to start with, it may turn out to be quite unnecessary. I was not clear whether this ought to apply to Clause 98(1)(b). This is simply stopping the employees of the small man from getting information from him at all. I should have thought that Clause 98(1)(b) perhaps stands in rather a different case. I am only a little surprised by it all because I was not envisaging people going to the Industrial Court. I think they would all go to the industrial tribunal, but no similar provision is made for that.
§ THE LORD CHANCELLOR
I think there is a great deal in what the noble and learned Lord says. In response to his direct question. it is designed to present an order of this kind from the outset, and I agree with him that it may turn out not to be necessary. But there is a good precedent for the kind of thing in mind, although the actual machinery is different, in the Race Relations Act, where the size of the undertaking and the size of the landlord's undertaking were both used as a yardstick whereby to limit the effect of the Act when it first came in.
§ LORD BROWN
If an answer cannot be given to what I am going to say, perhaps the point can be considered. Under the Bill, pre-entry closed shops will be void. The Bill comes in. A firm has a closed shop agreement, and it becomes void. They cannot apply for an agency shop if they are below the size specified in the order. They may be in great difficulty. They cannot carry on with the arangement which they have, and they are not allowed to make provision for the new arangement. In saying this I may be misunderstanding the way the Bill works, but perhaps I can be reassured about it.
§ THE LORD CHANCELLOR
This Amendment does not deal with that point. This would have to be dealt with under Clause 160, rather than in the Amendment we are now discussing. I think we have given fairly clear indications of our intention in regard to that. The commencement provisions of Clause 160 488 would, for reasons that I have given already in the Committee stage, amply cover what the noble Lord has in mind; but they are not concerned with this Amendment, which deals with access to the courts.
§ On Question, Amendment agreed to.
§ Clause 159 agreed to.
§ Clause 160 agreed to.
§ Schedule 8 agreed to.
§ Schedule 9 [Enactments repealed]:
§ 8.0 p.m.
§ LORD GARDINER moved Amendment No. 292J:
§ Page 159, line 12, at end insert—
|("38 and 39 Vict. c. 90.||The Employers and Workmen Act Act.") 1875.||The Whole Act.")|
§ The noble and learned Lord said: I raise this question only to ask where we are. I believe I am right in thinking that the Employers and Workmen Act 1875 is still on the Statute Book. Is not the effect of that, that if there are half-a-dozen unofficial strikers the employer can take them to the nearest magistrates' court and get them fined £10 a day if he has suffered that amount of damage? Or, if that is not enough, he can go to the county court and get £50 a day. So far as I can make out, the last reported case before the magistrates' court was in about 1898. The last case before the county court was certainly over 50 years ago. Is not this intended to be a modern law of industrial relations, and, if so, what is the point of keeping this in? The Lord Chancellor's office is not the Board of Trade, and I am sure he wants to have an even tidier system of law, and I do not follow the point of keeping all that in. All the history of the Act I have mentioned shows is that you can have all the laws you like to help employers to deal firmly with people like unofficial strikers, but they are not used. In all this time, 100 years, any employer in that situation could have gone to either the local magistrates' court or the county court. They have had more sense than to do it. But whether they are wise or unwise, what is the point of keeping this old Act on the Statute Book?
§ LORD DONOVAN
May I intervene shortly on this subject? We considered 489 this matter also on the Royal Commission. We thought and recommended that if our recommendations about labour courts were implemented (which are really these industrial tribunals that we have now), the major part of this Act of 1875 could be repealed. Its chief use to-day is for university professors who teach trade union law, because one of their favourite questions is: "State the main provisions of the Employers' and Workmen's Act 1875." The result usually is a blank sheet of paper. The 1875 Act not only provided a penalty of £10 and costs each time for a breach of contract by the workmen, imposed by the magistrates, but also provided that the idle apprentice could be hauled before the court, an order for specific performance could be made upon him to do his job properly, and if he did not he could later be brought before the court and sent to prison for 14 days at a time. Oddly enough, the particular provisions about sending the idle apprentice to prison were repealed about two years ago in an Act (of all places) which reduced the age of majority from 21 to 18. So that part of the Employers' and Workmen's Act has gone, and we are merely left with the provisions regarding the £10, and a few other administrative provisions. We on the Royal Commission had only one employer before us who had ever heard about the Act, and he said that he would run any one of his workmen straight away before the magistrates for the £10 fine if they ever went on unofficial strike. This was a concern which had a history of record profits consecutively for the past 23 years and has never had a strike. But it would be quite wrong to draw from those facts the conclusion that this Act was the cause of that. I do not see very much use in the remaining provisions of it, and I should like to know whether the Government are of the same opinion.
§ LORD DRUMALBYN
We are grateful to noble Lords for having drawn this matter to our attention. I am quite certain that very few of us would pass any examination on the contents of this particular Act. There are other provisions; for example Section 11 of the Act prohibits the deduction or set-off of any forfeiture from the wages of women, young persons or children for absence from or leaving work except for such 490 sum as the amount of damage actually sustained by such absence.
There are complications here. The Family Reform Act of 1869 repealed part of this Act, the power to direct an apprentice to perform his duties under the apprenticeship, and to order imprisonment for failure to obey. This was repealed by the Family Reform Act. There are other points outstanding, and I am informed that there is doubt as to whether they could properly be repealed by means of this Bill, given the longstanding and well-established convention that there should not be put into a repeals Schedule anything that is not consequential on the terms of the Bill.
We should like to look at this further before the Report stage, and we are grateful to noble Lords for having drawn this matter to our attention.
§ Amendment, by leave, withdrawn.
§ Schedule 9 agreed to.
§ 8.7 p.m.
§ LORD DRUMALBYN
It might be appropriate before this Bill is reported to the House if I were to acknowledge to all your Lordships the indebtedness of the Government for your patience, diligence and the good spirit in which this Bill has been conducted through the Committee. We are extremely grateful for this. I should like also, in particular, to express our indebtedness to the staff whom we have very sorely tried throughout quite a long period. Not only have we ourselves sat for well over 150 hours on this Bill, but we have sat on 18 occasions, and on all those occasions we have placed a very considerable extra load—and sometimes an almost unbearable extra load—on the staff. I should like to express our deep gratitude to them.
§ LORD DIAMOND
I hope that it may be appropriate if I, who know so little of your Lordships' traditions, nevertheless say what is in my heart to say; and that is that we on this side, too, appreciate very much first the facilities which have been made available to us, because we know what a strain this has been on those who have homes to go to, and not always an easy means of access to them. So I echo very much what the 491 noble Lord said about the staff, and the help they have given us to enable us to carry out our duty. Secondly, I feel I must refer to the kindly way in which most of your Lordships seem actually to have listened to what was going on. That is such a new experience for me that I doubt whether I shall ever be able to express my sense of indebtedness. Finally, I express gratitude for the patience and help which the Front Bench of the Government have shown throughout these proceedings. It must have been trying for them to have had fired at them time and time again questions which sometimes do not seem to be very much to the point. And that they have kept their patience, and been so helpful, is something that all of us on this side very gratefully acknowledge. I hope that I shall not be going too far if I add that we are particularly grateful to the noble Lord, Lord Drumalbyn, who has carried such an enormous burden. If he wishes to earn full marks, he will continue his good work, and put down a number of very helpful Amendments between now and Report stage.
§ House resumed: Bill reported, with Amendments.