§ 3.12 p.m.
§ 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 LORD MERTHYR in the Chair.]
§ Clause 5 [Rights of workers in respect of trade union membership and Activities]:
LORD DELACOURT-SMITHmoved Amendment No. 22:
Page 3, line 33, leave out ("worker") and insert ("person").
§ The noble Lord said: I beg to move the Amendment which stands in the names of my noble friends and myself on the Marshalled List. We are now entering upon the consideration of perhaps one of the most important clauses in the Bill, for very much of the character of the Bill derives from the provisions and the wording embodied in Clause 5. It is necessary therefore to examine the terms of this clause very closely. The Amendment which I am moving relates to the content of the first subsection which, among other things, seeks to state a general right to be a trade unionist.
§ When we look at the wording and then at other Parts of the Bill, the term "worker" which is here used limits the extent of that right in a way which it seems important we should examine closely so that the noble Lord who is to reply for the Government can explain fully the reasons for the use of this term and for the limitations which its use places upon the right which is inserted and the implications which the use of the terms may have in other Parts of the Bill.
§ Let me say, in the first place, that my noble friends and I believe that the right to be a member of a trade union should be asserted in completely general terms. There is no necessity for any limitation upon that, save of course the acceptability of an applicant to the trade union which 161 he seeks to join. This in itself would be a justification for the Amendment. But our reasons for putting forward this Amendment are strengthened when we look at the definitions which are embodied in the Bill. There is a danger that if a right of this kind is not a completely general right, the position may be misconstrued. If an Act of Parliament gives a right to a class of individuals to do something or other, it might be mistakenly presumed by those who have a nodding acquaintance with the Act that any person who is not included in the category so defined might not be able to perform the Act in question, might indeed be even regarded as specifically forbidden to perform the act in question—in this case, that of being a trade unionist. It is important that there should be no colour for any impression of that kind, which I am sure is not intended by the Government. However, we should not like to find that the rights in this regard, which it is generally agreed should be extended, have become in practice, whatever the intentions may be, more narrow as a result of this Bill.
To get the definition of the term "worker" we must turn to Clause 158 of the Bill, on pages 118 and 119. When one looks at the long definition, it falls into three parts. First of all, there is the definition of the term "worker" in subsection (1) of the clause, beginning on the middle of page 118. Then in subsection (2) we find that "worker" further includes individuals who are generally speaking employed under the National Health Service. We then find in subsection (3) on page 119 that, in addition to these two parts of the definition,
The Secretary of State may by order made by statutory instrument provide that in this Act 'worker' shall include any individual … who works … or seeks to work as the holder of an office specified in the order ….
What we have is a triple definition of "worker".
§ "Worker" has been defined in different ways in different Bills which have come before Parliament. I should like to draw attention to the Industrial Relations Bill which was put forward by the former Administration in April, 1970, which also defined "worker". I am not arguing, I emphasise, for or against the definition of "worker" contained in the former Bill as being superior or inferior to the definition which is before us in 162 the present Bill. I merely draw attention to the fact that it is a substantially different definition, so different in fact that it seems desirable that the noble Lord should give us a full explanation of why it has been regarded as necessary to frame the definition of a worker for the purpose of the present Bill in the way it has been defined.
If we turn to the Bill put forward by the former Administration, we see (if I may pursue the analysis I sought to give of the definition in the present Bill) that that definition falls into two parts and the first part falls, itself, into three parts. The first and the third of those correspond closely to the first and the third of the elements of definition given in subsection (1) of the present Bill, but the second element—and I will quote it to your Lordships' House—is materially different from paragraph (b) which appears in subsection (1) under the definition "worker". In the Bill proposed by the former Administration the corresponding provision ran:
under any other contract (whether expressed or implied and whether oral or in writing) personally to do work, whether the contract is for manual labour, clerical work or otherwise, or
and proceeded very much as in paragraph (c) which is before us. That is materially different from what is now proposed. To take only one point, there is no reference in that to the consideration that the other party to the contract should not be a professional client. I think it would be helpful if the noble Lord would comment upon that particular phrase, the reference to "not being a professional client", which comes into the present Bill.
The second part of the definition under the Bill put forward by the previous Administration was, in fact, to add a fourth sub-paragraph to those equivalent to the three now before us. This fourth sub-paragraph included in the definition of a worker:
Someone who was the holder of any office specified in Schedule 1 to the Bill".
When we turn to Schedule 1 of that Bill we find that in fact the specified officers were in effect registrars of births and deaths and rent officers appointed under the 1965 Rent Act.
§ I should be grateful if the noble Lord, when he comes to reply would explain 163 why it has been felt appropriate to define the term "worker" in the more elaborate way that has been done in the Bill now before us and reassure us on one or two points. Is there a possibility that anybody who at the present time enjoys the full entitlement to join a trade union will be in any degree or respect prejudiced in his entitlement to become a trade unionist by the appearance of the term "worker" and the definition of "worker" which is embodied in the Bill? To assist us in that, perhaps he could tell us how many people, in the Government's estimate, are covered by the definition of "worker" as it appears in the present Bill, and whether it covers people who may be brought into the definition of "worker" by any actions which the Secretary of State may in future take under Clause 158(3). It would be useful to know how many people are covered by the provisions of the Bill as it at present stands.
§ Perhaps most important of all, can the noble Lord tell us whether there are people who are generally accepted as mainly or substantially dependent on wages and salaries who are in fact excluded? In fact there is in the present Bill one category of exclusion clear to which I will return in a few moments. It would be valuable to know whether such people as the registrars of births and deaths, who seem to have caused some anxiety to the former Administration in this regard, are safely and satisfactorily covered by the present provision.
§ This, I think, is of importance, because a trade union under the present Bill is defined, if I understand aright, by reference to "workers". We have to turn to Clause 59(3) of the present Bill to find the definition. I will not comment on it at any length because we shall be commenting on it at some length later on, but for my present purpose the important point is that it is an organisation of workers. I should be grateful if the noble Lord would indicate the position of an organisation of workers which accepts into membership people who are beyond the definition of "worker" contained in the Bill. There are people—there might be Members of Parliament—who, as I understand it, would not fall under the definition "worker" in this Bill but who might wish to join a trade union. Since 164 a trade union, apart from other features and other requirements, is defined as an organisation of workers, does an organisation in any way prejudice its position if it accepts into membership people who are beyond the definition of worker set out in the Bill?
§ Further, are all the other rights and obligations, and the remainder of the Bill, associated only with those individuals, those of our fellow citizens, who fall within the definition of a worker? This is an important point because the entitlement to join a trade union is important. But the entitlement to join a trade union is of limited value unless there is some reason to expect that the employer will accord recognition to the trade union and will deal through the trade union with the problems that the individual has. One could properly go on to say that once recognition has been established, that, of itself, is of relatively little value unless there is a procedure which is available for negotiation, so the entitlement to be a trade unionist, the entitlement of a trade union to be recognised, and the existence of a proper procedure, are three interlocking aspects. Although I would in no way underestimate the importance of the right to be a trade unionist, that right is made a much more valuable one if it is associated with the other aspects, the right to recognition and the possibilities for getting a procedure, to which I have referred. Therefore it is important to know what exactly is the practical effect over the whole extremely elaborate scheme which the Bill envisages. What is the importance in that whole scheme of the definition of a worker, and how is an individual who falls outside that definition going to be situated under this Bill?
§ There are, I think, particular categories of workers about which we may wish to ask if the noble Lord is not able in reply to cover the situation completely, but I want to make a brief reference to one category of our fellow citizens which is expressly excluded from the right: members of the Armed Forces are explicitly excluded under paragraph (c) on page 118. They are expressly excluded from the definition of "worker". I should like the noble Lord to say a little in explanation of this. As I understand it, a member of the Armed Forces is not precluded from joining a trade 165 union. There are, indeed, a number of members of the Armed Forces who are members of a trade union. What has so far not been accepted as appropriate is to accord to a trade union negotiating rights and recognition in respect of any members of the Armed Forces. Does the Bill, as drafted, mean that, by virtue of this exclusion from the definition of "worker", any consideration at any future time of negotiating rights would be precluded if the Bill passed into law in precisely its present form? I have detained your Lordships rather longer than one normally does in moving an Amendment, but I hope I have succeeded in showing that this is an issue of importance. It is an issue of some complexity, and is one that is intimately related to many other parts of the Bill. I trust that the noble Lord will be able to reply to the questions that I have raised and give us a fuller explanation of the proposals. I beg to move.
§ THE LORD CHANCELLOR (LORD HAILSHAM OF ST. MARYLEBONE)
I do not think I can answer these questions in detail straight away, and I shall ask my noble friend, Lord Windlesham, to give a detailed answer after the debate on the Amendment has concluded, so that he may have time to inform himself. But perhaps the noble Lord could confirm that I am right in assuming that quite a large number of rather similar Amendments are intended to raise the same points, and not separate points. They appear to be Amendments Nos. 22, 36, 38, 44, 47, 49, 51, 62 to 64, 65, 68, 71 and 73.
§ LORD DELACOURT-SMITH
One must look at each of these Amendments in its particular context. They do raise, to a greater or lesser degree, the issues that I have touched on, and issues which no doubt other noble Lords will mention as we debate this Amendment. It may well be that when the discussion on this Amendment has been completed my noble friends and I may not feel it necessary to move the other Amendments which are similar in form, but I do not think at this stage we should wish to commit ourselves on that.
§ THE LORD CHANCELLOR
The point that I have in mind is this—and it is rather well illustrated, I think, by what I am saying. Obviously, in a case of this sort one has to rely, to some extent, 166 either upon one's native ingenuity or upon the advice that one receives from others who are more expert in the administration of a subject of this kind. It so happens that in this particular case practically none of the specific questions was foreseen as arising out of this Amendment, which really only substitutes for "worker" the word "person" in a particular part of the Bill. If there were a large number of specific questions to which the noble Lord wished to have an answer, it might be for the convenience of the Committee if he could let us have such of them that he thought we could be trusted with in order that the answer may be more rapidly forthcoming than would otherwise be the case. I should be grateful if this could be done.
In the meantime, the only thing I would say is that under the clause as we have drafted it the word "worker", as the noble Lord quite fairly pointed out, does not include the Armed Forces, the Women's Services, professional persons in relation to their clients, or office holders, though presumably all these categories would come into the word "person" if it were inserted. Office holders, of course, are capable of being brought in by the Secretary of State, as again the noble Lord pointed out, but prima facie they are not in. Prima facie, therefore, the police are not in ether, because they are office holders, as the noble Lord, Lord Gardiner, can tell his noble friend. So far as I can see, the noble Lord's question about organisations of workers is covered by the definition in Clause 59. Those who admit a few members—the noble Lord gave the example of Members of Parliament—somebody who does not come within the ordinary definition of "worker" for whom they cater, would not be affected by any exclusion, because an organisation of workers, as he will see from reading Clause 59, is an organisation which consists "wholly or mainly" of workers. So far as I know, there is nobody who would ordinarily be called a worker who is excluded, unless one chooses to include the particular list of categories which I gave a moment ago. I will ask my noble friend Lord Windlesham to obtain a more detailed answer than I have been able to give off the cuff, after other noble Lords have spoken.
§ LORD DIAMOND
I do not know whether the noble and learned Lord is 167 inviting us to conduct a lengthy debate for the sake of filling in time until his noble friend is in a position to answer the questions.
§ THE LORD CHANCELLOR
I was giving no such invitation. My noble friend has been acquiring information all this time, and he is now ready to speak.
§ THE MINISTER OF STATE, HOME OFFICE (LORD WINDLESHAM)
I am glad that we have the prospect of such a short debate on this Amendment. I am not surprised, in a way, because the noble Lord, Lord Delacourt-Smith, has made an interesting and detailed speech, but he has not advanced any reasons why the word "person" should be inserted in this clause rather than the word "worker". His earlier questions were based on the analogy of the Bill produced by the previous Administration, which, as he himself said, used exactly the same expression. What was their expression? It was not "person", but "worker": and the word "worker" was defined in their Bill in the same way as it is defined in this Bill.
It may be helpful if I say something by way of introduction on why my right honourable friend the Secretary of State chose the word "worker". He discussed this in his Second Reading speech. He said that he tried to find another word which had a less sectarian—"Victorian" was the adjective that he used—connotation than "worker"; but he explained that he had not been able to discover a more accurate term to describe both employees, in the literal sense, and those who came under contracts of service. I should like to return to that second point in a minute, because it answers several questions put by the noble Lord. I may add that when my right honourable friend was speaking in the Second Reading debate and touched on this point he was twice interrupted from the Benches opposite by someone saying:It is an honourable word … There is nothing wrong with 'workers'."—[OFFICIAL REPORT; Commons, 14/12/70; col. 964.]With both of those observations my right honourable friend was able to agree. The word "worker" is commonplace in the language of industrial relations: indeed it is even enshrined in the title of the union of the noble Lord, Lord Cooper of Stockton Heath, the National Union of General 168 and Municipal Workers, which claims the right reverend Prelate the Bishop of Blackburn among its members.
While thinking about this particular word and the way in which it was used, I turned to the report, as I so often do for my bedside reading, of the General Council of the T.U.C. to see what they had to say when preparing their members for the Special Congress held on the Bill in Croydon on March 18. The T.U.C. clearly must have some view as to whether the word "worker" is appropriate, or the word "person". After all, they are very different terms. What word do we find in the document put to their members by the T.U.C? The T.U.C. have been very careful and have chosen the expression "workpeople" of which the singular is "workperson".
I have said that by way of introduction. To explain why this particular expression is used in the Bill, let me turn to some of the points put to me by the noble Lord, Lord Delacourt-Smith. I am advised that in the interpretation of the word "worker"—shorter than "workperson" and perhaps in more general use—contained in Clause 158, there were no substantial differences in the definition in this Bill and the previous Bill. There are some drafting changes. It has been clarified and there is a change in that the Secretary of State has a power under subsection (3) to bring within the statutory definition of "worker" certain other office holders. He has this power which he may use or not.
How many people are likely to be covered by the description "worker" which is used in this Bill? The total number is likely to be of the order of 23 million to 24 million people. Question: are registrars of births, deaths and marriages included in the expression "worker"? Answer: No, they are office holders; but they can, if the Secretary of State so decides, be brought within the definition in Clause 158 by use of the power in subsection (3). Other office holders include judges, coroners, I am told even Ministers of the Crown, and the police, which is the biggest single category of person.
I am quite ready to discuss why some of these categories were excluded if that would be helpful to the Committee. It is 169 a long and technical explanation concerning the police, but I think that what perhaps I can do more helpfully is to say something about categories of professional people in general terms, and then conclude with the underlying approach of this clause because I am not quite sure, despite the interest and curiosity with which the noble Lord, Lord Delacourt-Smith, approached Clause 5(1), that he has quite grasped its full significance.
Let me say a word or two about professional people, because he asked me about those people who are in a professional relationship with their clients. We must distinguish because not all professional people are in the same category. Some professional people, notably doctors, have employers and are therefore included within the description "worker". Others, such as barristers, or solicitors who are in private practice and are not employed but are partners in a firm of solicitors, again are not workers because they have no employer. At the same time it is necessary to point out that there may be —in fact will be—substantial numbers of qualified solicitors and qualified chartered accountants who are not themselves members of a partnership but are employees of an employer and therefore come under this particular clause. I ought also to say that in the proceedings in another place a Government Amendment was accepted which inserted in the Bill (it is Clauses 82–84) what is described as a special register for chartered bodies which, under the terms of their charter, cannot take on all the functions of a trade union but which none the less have negotiating rights as regards salaries and conditions and terms of service.
What I think lay under the noble Lord's probing Amendment—I regard it as a probing Amendment because he has not actually proposed that the word "person" should be inserted in the Bill and that it would be appropriate wherever the word "worker" occurs—is, why should the right to join a union be contained at all? Why should not everyone have the right to join a trade union? The noble Lord nods his head, so we are in agreement on that point. Everyone has a right to join a trade union. They have that right 170 to-day, subject only to the right of the union to accept or reject a particular candidate. What we are doing in the Bill, and we now come to the crux of this clause, is to provide a statutory right to which specific remedies are attached in Clause 5(2), the next subsection, for the exercise of that right in certain specific situations.
Nobody is going to interfere with the right of a private individual to join a union if he wishes to do so whether he is a professional man or a man in these special categories or otherwise; but it is in the employment relationship that this right needs to be protected, and in Clause 5(2) there are specific remedies which we shall be discussing later this evening. Therefore the words are chosen with very great care in Clause 5:Every worker shall, as between himself and his employer, have the following rights, that is to say, …the right to join a trade union—it is spelled out more fully—or the right not to join a trade union, as stated in paragraphs (a) and (b) of the subsection. Those are specific protected rights, because it is in the employment situation where there is an employer and a worker that there is a need for safeguards, and those safeguards are contained in subsection (2) of this clause.
§ 3.48 p.m.
§ LORD LEATHERLAND
I am rather sorry that the noble Lord, Lord Windle-sham, has not referred to that part of the speech of my noble friend which deals with members of the Armed Forces. It is 50 years since I was president of the sergeants' mess on the Rhine so things may have changed since then, but I remember that two of my sergeants were members of a trade union. They were both sergeants in the Corps of Royal Engineers and they still held their membership cards of the old A.S.E., the Amalgamated Society of Engineers, the forerunner of the present engineering union, and they were very proud of it.
I am not going to raise the question on semi-Soviet lines of suggesting that we should have a union of soldiers, sailors, workers and peasants—nothing like that. What I am concerned with is the position of trade unionists who go into the Forces and then come out feeling that their continued membership of a trade union would be helpful to them in 171 seeking or resuming employment. We have, as is well known, a very effective reserve organisation in connection with the Forces. It was strengthened very considerably during the period of office of my noble friends. Those people, because they are in that particular reserve unit, are accustomed to certain skills and crafts. They may be stevedores or people who can handle cranes in docks. All of them are highly experienced, and many are members of trade unions of long standing. If they are called up to the Colours and serve, perhaps, for a year or two, will they be required to surrender their trade union membership? Then there are the nurses. We know that there are a large number of nurses in Her Majesty's Forces. Some of those may belong to a professional organisation which may or may not be excluded by this particular clause. Some of them— and there are scores of thousands of them —belong to a genuine trade union, and we want to know what their position is.
We also have to bear in mind that it is the custom for Her Majesty's Forces to tend to invite recruits on a short-service engagement. A man may be going into the Services for three or five years. When he returns to civilian life he will want to be able to resume his old employment or, alternatively, seek some fresh employment, perhaps based on a skill that he has acquired in the Army. If this man comes out and does not have a trade union card he may be seriously prejudiced in seeking employment. I know that this fear will not in all cases be justified, because in recent years there has grown up between trade unions and Her Majesty's Forces a close liaison, and everything possible is done by the unions to take men back into the occupations from which they sprang; to give them rehabilitation courses, and to help them in every way possible. If the clause and the definition remains as present, excluding members of Her Majesty's Forces, I see considerable hardship being brought to bear on these men who have been in the Army and wish to resume a decent position in civilian life.
§ LORD SHINWELL
I am completely baffled by this discussion, and that is a very bad start for to-day's debate. The subject requires further clarification. What, is a "worker"? Is an unemployed 172 person a "worker"? There is a section of industry where, during a temporary period, nobody is working at all. Can those persons be described as workers? Obviously not. It is very difficult to ensure an accurate and specific definition of what is a worker. It would seem to me that a much better, and more accurate definition—and I thought this emerged from what the noble Lord, Lord Windlesham, said—might be "employed persons". When it comes to the question of defining what is a trade union it would hardly seem to fit in. I confess that I do not exactly know where we are. On the whole, I imagine that the proposition advanced by my noble friend Lord Delacourt-Smith—to use the word "person"—is the most admirable and relevant definition. Can we say that a worker is not a person? Would the noble Lord who advanced arguments from the Government Front Bench venture to argue that a worker is not a person? I should imagine that those who are working would be disturbed and offended if they were regarded as not being persons. These are relevant questions, and they have to be answered more effectively before we can come to a definite decision as to what is a definition of a worker.
Unless there is a more specific definition, I should be inclined to press the Amendment, because it may have a bearing on other Amendments to which the noble and learned Lord the Lord Chancellor ventured to advance. It is difficult to find an accurate definition, but if I have to choose between "worker" and "person", in the circumstances, having regard to the arguments I have advanced, I should prefer "person".
§ 3.55 p.m.
§ THE LORD CHANCELLOR
I should like to say to the noble Lord, Lord Shinwell, that if he is worried about the position of the unemployed person he has only to look at the definition in the clause, which states that "worker" includes anyone "who seeks to work". That is the answer to his question. I will ask further information about the question put by the noble Lord opposite. It is within my knowledge, because I served in a Service Ministry for some time, that members of the Services belong to trade unions. I think the answer is that the clause certainly does not take away from them anything that they have. As my noble friend pointed out, if you look at 173 the terminology of Clause 5 you will see that what we are seeking to do is not exclude anybody from the right to join or belong to a trade union—that is far from our thoughts. The point is that this is a statutory right which is enforceable against the employer; and, therefore, although it is often the case, especially in time of war, and in time of peace, too, that a member of the Armed Forces is either a member of a trade union or makes arrangements to become one when he leaves the Armed Forces, this is not enforceable against his employers, the Crown. Therefore this does not come within the definition in that sense in Clause 5. I was not aware that this point was going to be raised, and I will ask my noble friend to get further information upon the subject. We can either revert to it later, or provide the information in some other form.
§ LORD BROWN
I think I understood the explanation given by the noble Lord, Lord Windlesham. I thought, as he gave his explanation, that it did not spring to the mind in reading this part of the Bill. If the clause had started with words like:In order to provide that special protection from possible oppression by an employer, a person who finds himself in the role of a worker shall …and so on. Then it goes on to state what rights he shall have. I ask the noble Lord to take note of these words. I believe that they may be helpful in assisting people later to understand precisely what is meant by these words, as explained by the noble Lord, Lord Windlesham.
THE EARL OF BALFOUR
I was interested in the question put by the noble Lord, Lord Delacourt-Smith, in moving the Amendment. I felt that I would like to investigate the reasons behind this. I wondered whether he just disliked the word, "worker". I checked up on the Trade Union Act 1871 and found that, although it uses the words, "person" and "workman", it goes on to describe "master". Where it uses the word "person", it is not being specific. Where it uses the word "workman" it is being specific. Equally in this clause, we want to have the word "worker" because it is specific; "person" would not be specific enough. To refer back to earlier Acts, the word "workman" would no longer be suitable, 174 and the word "master" is virtually obsolete. In the Trade Union Act 1913 the word "person" is used, and also the word "member" but in that case it is speaking specifically of members of unions.
I also thought possibly of substituting the word "worker" for "employee". I was a little worried here again because quite a large number of people are self-employed persons; and a number of people who are self-employed may be actually employed in one unit. Many people started to do this in small firms after the introduction of selective employment tax, to allow their employer to get out of it. It might be a mistake to exclude them completely. Also, this question is important in regard to the definitions used in this Bill. An employee is a person who is employed. In this clause I feel we want to have a broader meaning covering a person who seeks work. Furthermore, may I ask noble Lords to refer to subsection (2) of this clause, which says:It shall accordingly be an unfair industrial practice for any employer, or for any person acting on behalf of an employer,—(a) to prevent or deter a worker …".Again, it is proposed by the Amendment that the word "worker" should be changed to "person". I am a little worried here, because I feel it could then mean, "prevent or deter a manager", because the word is not specific enough.
The only point where I do feel your Lordships should take note of what the noble Lord, Lord Delacourt-Smith, and his friends have suggested—and it is a very important point—is this. In Clause 5, by defining the word "worker", it might appear that we are excluding people who are not workers within an organisation from becoming members of a trade union. I think the noble Lord has got something here; this could be quite important. Therefore, possibly, in order to cover this point, it might be right to substitute the word "person" for "worker" in Clause 63, which specifically describes who shall and who shall not become members of a union. One of the things I felt when I first read Clause 5(1)(a) of the Bill—which says:the right, if he so desires, to be a member of such trade union.…"—175 was that a man cannot belong to just any union unless he is qualified. A plumber could not belong to the electricians' union. But I think this point is covered in Clause 63.
§ LORD LEATHERLAND
The noble Earl said that a plumber could not belong to the electricians' union. Recent history, I think, would tell him that the plumbers and electricians have either joined up or have a very close working agreement.
THE EARL OF BALFOUR
I apologise to the noble Lord for having chosen rather a bad example, but what I meant was that you could not have (shall we say?) a bricklayer becoming a shipworker. But this point is covered in Clause 63 and I think that should deal with the point.
The only other point is that here I feel it is important that if we use the word "employee" it might refer to somebody who is seeking employment. Therefore. I think the word "worker" is simple, to the point, covers everything we want it to; and I do not recommend that it should be changed to the word "person".
§ 4.5 p.m.
§ LORD POPPLEWELL
I am rather surprised at the conclusion reached in the noble Earl's speech, because I thought that quite a lot of his remarks would favour deleting the word "worker" and substituting the word "person" in order that we could steer clear of lines of demarcation which are involved. I should have thought that this was an Amendment which the Government could have accepted readily. According to the Donovan Report—I am speaking from memory; I have not it before me—there are something like 24½ million people engaged in industry of some kind in the country; some 22½million of them are more or less classed as "workers". These figures are broken up into the number of male and the number of female workers. My noble friend has now provided me with the text I am referring to. I see it is said that the total working population in the United Kingdom is almost 26 million, of whom over 23½ million are employees. The Report then breaks the figures down into the respective trades. It says: 176There are 15 million male employees and 8¾ million females, of whom 4 million employees are manual workers and over 9 million are white collar workers.The working population are defined in these statistics as numbering almost 26 million, and I think if we accept the term proposed we shall be introducing another classification into the application of this Bill. The word "person" would include the whole of the 26 million of the working population without any attempt (as I have said earlier) at having lines of demarcation which we condemn so strongly. I should have thought this was not too large a point; it is not a point we can get really excited about. But I should have thought that, in the interests of trying to get somewhere with this Bill, the Government might have indicated that they are prepared to accept the Amendment and the definition of "person" as distinct from "worker".
§ LORD SHINWELL
May I venture to make a suggestion? I was very much interested in what the noble Earl on the Back Benches said about Clause 63. I have looked at it as carefully as one can in the circumstances. If the clause were amended as proposed I believe it would cover every person who is a worker as defined in Clause 63—because it will be noted that the clause under review, which concerns the Amendment, relates to precisely the same subject; namely, membership of a trade union organisation. If this word were accepted, it would clarify the point. If the words "Every person who is a worker as defined in Clause 63 …." were acceptable it would, I think, meet the objection raised by the Government spokesman, and meet the point raised by my noble friend.
§ LORD SLATER
I wonder whether the noble Lord opposite can give us a definition in regard to the Amendment which has been moved and which my noble friend Lord Shinwell has tried to deal with. In view of what has already been said from the Front Bench opposite, may we have a classification of those people who are engaged in, say, television, colour advertisements, films and such like? What would the noble Lord classify them as—workers, or artists? Each and every one of them, whatever their professional trade, may be an integral part of the society of this country. What classification do we give to ourselves? 177 We are part of Parliament. We are in a type of employment, not as workers but as persons, so why cannot the word "persons" appear in place of "workers"? Having regard to the appeal made by the previous speakers one is surprised that the Government should be resisting this. No matter who we are or where we come from we are all individual members, and therefore we count.
§ LORD ROBBINS
May I put a layman's difficulty to the noble and learned Lord the Lord Chancellor? I understand that the reservation underlying the point of view which was put forward by the noble Lord, Lord Delacourt-Smith, was a fear that the positive, constructive! definition of "workers" contained in another part of the Bill might omit categories whom it would be unjust to deprive of certain rights. I understand that the point of view put forward from the Government Front Bench was that the suggested substitution of the word "person" opened the gate too widely, and that there were certain categories whose admission would obviously be an embarrassment to good administration. My question may be a foolish one: The noble and learned Lord knows that I am utterly innocent in these matters. Why should not the word "person" be used and then certain exclusions be defined by schedule?
§ THE LORD CHANCELLOR
Since the noble Lord has appealed to me I can assure him that I am every bit as innocent as he is, but if he reflects he will see that the answer is not far to seek. There are a great many people who do not, as between their employer and themselves, have a right to join a trade union. A child of five is a person—at least I hope it would be assumed that a child of five is a person—but this Bill does not cover children of five. Also, of course, there are self-employed persons, who although they are in a minority in the community are still members of it and are "persons" or people. Again they do not come within the ambit of Clause 5 because they do not have a right as between their employer and themselves.
Perhaps I was to blame—I hope I was not—or perhaps my noble friend was to blame, although I do not think he was: it is clear enough that the word "persons" 178 applies not to 26 million people but to 55 million people. We want to define about 24 million of them, and we want to define them for the purposes of Clause 5, which gives them a right as against their employers. It is not just a question of excluding those whom I read out, such as the armed forces and the police; it is that the word "persons" includes all human beings, and in spite of their great numbers it is only a limited class of human beings who are concerned in the Industrial Relations Bill as such.
§ 4.15 p.m.
§ LORD DELACOURT-SMITH
I am bound to say that I feel the Government have not altogether satisfied the Committee on this point. Let me first put this point to the noble and learned Lord. We appreciate that he has addressed his arguments, and so have his noble friends, to the bearing of Clause 5 itself, and to the assertion of the right to be a trade unionist against possible discouragement from the employer. As my noble and learned friend, Lord Gardiner, said last night, the Government have brought forward what I think they would agree is a very complex Bill, in which each part —and on our side we see this more and more clearly the more we study it— has its repercussions and inter-relations with other parts of the Bill. Therefore there is bound to be anxiety in our minds that, while we understand the force of the argument put forward by the noble and learned Lord, when it is addressed to Clause 5 in isolation it seems to me that it can raise implications and complications in other parts of the Bill. It led to my anxiety that we might find that, as a result of this form of words and these definitions, some individuals would in the end, in practice, find themselves in a less advantageous position in respect of the effective exercise of trade union rights.
My anxieties have not been allayed by the explanations given by the noble Lord, Lord Windlesham, and there are many questions in my mind. Let me first give more emphasis than I did when I introduced this Amendment to the fact that we have no objection to the term "worker" as a term. We agree that it is a very honourable description. However, we are concerned that the right to be a trade unionist should be stated in the most general terms. If there are indeed precocious children of five who wish to become trade unionists, and who can find 179 a trade union to accept them, we would not wish them to be debarred by the terms of the statute. I fully agree that that is a somewhat extreme case, but I trust that the Government will look either at the suggestions put forward by the noble Lord, Lord Robbins, or at the suggestion made, I think, by the noble Earl, Lord Balfour, and taken up by my noble friend Lord Shinwell. In my view there is a need to look more closely at this, for there is no doubt that there are some blurred edges, and the blurring of these edges could possibly put individuals in a position of disadvantage.
Then I am a little puzzled about office holders. I do not quite understand why holders are left over to be dealt with subsequently, and I am not quite clear how wide a category of people these may be. The noble Lord, Lord Windlesham, mentioned registrars of births and deaths, and various other fairly small categories. He mentioned Ministers of the Crown: if what I read yesterday in a newspaper which has already been referred to this afternoon is correct, there may be some Ministers of the Crown who will be most anxious before long to exercise the right to be trade unionists and seek negotiated rights. But there are other categories, and I think we should have a fuller description of the position of office holders.
Frankly I was surprised to hear the noble Lord refer in just half a sentence to the position of policemen. I would have thought that we had reached the stage at which there ought to be no dubiety about the entitlement of a policeman to be a trade unionist. For many years they were linked with prison officers and, if I am not mistaken, they were subject, in practice, if not in law, to restrictions upon possible trade union activities. For prison officers that limitation, whether it be of law or of practice, has long since passed away, and they have an organisation which is not only an independent trade union but is affiliated to the Trades Union Congress. We know in fact that the policemen have their own representative organisation, and I am a little surprised that the noble Lord should take it for granted, as he seemed to do, that policemen should be one of the excluded categories.
We have already talked about the position of the Armed Forces, and the noble 180 I and learned Lord, I understand, is going to examine that point and provide fuller information at a later stage. But there, are other categories going beyond office holders to whose position I think attention should be drawn. There are such categories as sub-postmasters. A sub-I postmaster is normally a person who keeps a shop, but in the shop he has a facility for conducting post office; counter and other business. He may himself be a small employer, but for many years sub-postmasters, to deal with their relationships with the Post Office, have had what has been in effect a trade union, accepted by trade unions beside whom they work in co-operating with them in matters of common interest. Would they be workers for the purpose of this definition?
There are such categories are share fishermen. I am not sure whether they are workers under this definition. The noble Earl, Lord Balfour, referred to; a most important, and in some fields of employment growing, category of people those who describe themselves, at any rate, as self-employed, but who in many cases operate as a collective group for carrying out some task for a contractor. I think the noble Lord, Lord Windlesham, has had occasion to study this problem in other connections, and he will know what a complex one it is. The line between people who describe themselves as self-employed and accept this form of work on the one hand, and the wage-earner on the other, is a very narrow one.
§ LORD WINDLESHAM
Let me try to clear this point up. because it is fundamental, and the noble Lord seems to be under a misapprehension. Clause 5. which is what we are discussing, concerns the right of the individual worker as against his employer. It does not concern the right of an individual as against a union. To join a union, or not to join, is covered under Clause 63. What we are confining ourselves to here is the position of the worker vis-à-vis his employer and the remedies he has against the employer in subsection (2) of Clause 5 if the employer commits an unfair industrial practice in not allowing him to exercise a right.
§ LORD DELACOURT-SMITH
I am quite aware of that fact, but I put the point at an earlier stage that this Bill 181 is a Bill in which the various parts are so interlocked that, although I appreciate the force of the argument put by the noble Lord, if one looks exclusively and solely at Clause 5 and what it seeks to achieve it does not remove anxiety that it can have detrimental consequences if it carries this definition of categories of people with whom the Bill is concerned, and limits it in this way. I cannot see what the difficulty is about removing any possible anxiety, either by examining the course suggested by the noble Lord, Lord Robbins, or the course I referred to earlier, touched on by the noble Earl, and taken up by my noble friend.
If I may say so, I do not think the noble Lord's intervention was particularly appropriate to the point I had reached in my argument, because there are quite a number of conceivable situations in which gangs of men who had chosen to describe themselves as self-employed need to be able to assert some kind of right and another kind of collective representation in relation to the individual who is in fact their employer. I take it no further than that. I can conceive of situations. It certainly does not seem to me that that relationship in particular is one that one is entitled to dismiss. I think the noble Lord should look at that specific point.
§ LORD WINDLESHAM
Perhaps the noble Lord could give an example, because the categories of "worker" in paragraphs (a), (b) and (c) in Clause 158(1) are very specific; they cover the normal relationships between employer and employee. If the noble Lord thinks there is a relationship which is excluded, I would be interested to hear it.
§ LORD DELACOURT-SMITH
That is one of the things upon which I was hoping the noble Lord was going to assure me. I had addressed some remarks to the subject of office holders, and then came to people in private employment— share fishermen in the first place. Is there no problem here? Are they "workers"?
§ LORD WINDLESHAM
The noble Lord must try to grasp this point. When I he refers to sub-postmasters as being self-employed—which in most cases they will be—but at the same time having union representation, he is talking about their I right to join a union as against the union, not as against the employer, 182 because there is no employer. So he should address his remarks on that point when we come to Clause 63. At the moment we are talking about the right of a worker as against his employer, so it is no good raising examples of people who do not have an employer and saving that they are entitled to be collectively represented. Maybe they are, but there is no right that can be enforced against an employer, because there is no employer.
§ LORD DELACOURT-SMITH
I am astonished at the noble Lord's argument. Let us take the case of sub-postmasters. The point I was making was that a sub-postmaster is normally a shopkeeper, and he has in his shop facilities for the purposes of Post Office work. If he works for more than 18 hours a week on that work, I think I am right in saying that he is regarded for National Insurance purposes as an employed person. That is the point I am making. He does, in fact, in that relationship have a relationship with the Post Office. I am not saying what the precise nature of that relationship is; I am saying that he has that relationship, which is a relationship of a character which has for many years led sub-postmasters to form what is, to all intents and purposes, a trade union, which works alongside the trade unions representing normal wage-earning employees, which with them negotiates with the Post Office all those matters which are of concern to the normal wage-earning or salaried employees and the sub-postmasters. All I am saying to the noble Lord is that there are categories of employed people who do not, as I understand it, fit quite naturally and easily into the categories that the Government have set down. I am asking for an assurance that in fact these people do; and perhaps the noble Lord can assist by saying so.
This was the question I put when I first raised this matter: are there any people who are thought of as normally dependent or mainly dependent on wages and salaries who are excluded from the definition of "worker" which is put forward in this Bill? If the noble Lord can assure me that there are no people so excluded, then I shall, of course, feel very much happier. I am drawing his attention to the fact that there are people who are, from a common-sense point of view 183 very much in the position of wage-earners at any rate for a part of their time, but who are not necessarily, as I see it, covered by the definition in the Bill. We should be glad if the noble Lord could assist us by assuring us that they are. The figures which he gave were not completely reassuring. I think they showed there was quite a gap between them and the figure normally given for the employed population. Perhaps he can assure us that the gap is one which really need give rise to no anxiety.
I am bound to say that first of all our general proposition is that both on grounds of principle, and to avoid any difficulties which can be quite simply avoided, the definition should be changed from "worker" to "person", with the proviso that any special categories may be looked at and defined as not covered, which seems to me to be a very safe arrangement. There cannot be a very long list of people the Government would want to exclude. Even if one does here provide a safeguard for people who will never need the safeguard, I do not think one is doing a great deal of harm. I would have thought that to follow up either of the two suggestions that have been made in the debate would remove the possibility of difficulty, would remove the anxieties that are felt on this side of the House, and would remove the possibility that what appears to be to us a restrictive definition in Clause 5 could have disadvantages for individuals as a result of other parts of the Bill.
§ 4.32 p.m.
§ THE LORD CHANCELLOR
May I just say to the noble Lord that I did invite him at the very commencement of this Amendment to say whether he wished to link it with other Amendments to the same effect in different parts of the Bill. Although I was hoping that he would accept the invitation, he declined it quite firmly. That may be right, but it is not open to him, in the light of the fact that he declined, to complain that my noble friend has dealt only with Clause 5, because he cannot have it both ways.
The second invitation I gave to the noble Lord was that I said that so far as we know—and my noble friend said it in much more compendious and absolute terms—there are no excluded categories 184 which would not have been excluded by the Bill of the Government of which the noble Lord was a member. It may be that we are wrong, but we do not know of them. I invited the noble Lord— following a very old tradition of this House—to give particulars of any examples on which he would like a specific answer, because we know of none. I said that then we would look into it. The one thing I am quite certain of is that, as at present advised, Clause 158 is the appropriate place for the general definition. That is why the clause is so long. That is where the definitions are. I think that that disposes of the suggestion of the noble Lord, Lord Shinwell.
I hope I have already given a satisfactory answer, but at any rate the best answer that was available to me, to the noble Lord who spoke from the Cross-Benches. Since the noble Lord, Lord Delacourt-Smith, has declined our invitation to treat these Amendments as one, I think the least he can do is to raise any specific points he wants to raise on the particular clauses, and if he gives us notice we shall be only too glad to deal with them, but, so far as we know, the definition stands.
§ LORD SHINWELL
The noble and learned Lord the Lord Chancellor cannot dispose of me in that airy-fairy way: I am not so easily disposed of. I shall venture to put one or two further questions, because I think that noble Lords in all parts of the Committee are anxious to avoid a Division on what appears to be a very baffling problem, and one probably not clearly understood. The noble Lord, Lord Windlesham, was quite correct in directing our attention to the fact that the clause under review, so far as definition is concerned, varies from Clause 63. The clause under review does, as the noble Lord rightly said, refer to the relationship between a person who wishes to join a trade union and his employer. That is perfectly correct. On the other hand, Clause 63 relates to the relationship between a person who wishes to join a trade union, and who has a right to join a trade union and is qualified to join, and a trade union. He correctly described the position. But the remarkable fact about both clauses is: why the different language? Why the different terminology? Clause 63, as the noble Lord read it out, and 185 perhaps I might repeat what he read, says this:(2) Any person who applies for membership"—and it goes on to say in the succeeding paragraph, as—a worker of that description,".That follows the way that I venture to suggest we might amend the clause under review, and come to some agreement, if we use the term "every person who is a worker". That will meet both points. I cannot understand why the Government object to this unless they have some reason that has not yet been disclosed.
May I make this last suggestion, and I will leave it at this? In view of what the noble and learned Lord has just said about having a look at this, would it not be better to defer consideration of this part of the clause—whether it should be "person" or "worker" or a combination of both—and then come back to the clause at a later stage? Perhaps the Government would agree just to look at it, and give it consideration. We may be all wrong about this. On the other hand, as the noble and learned Lord said—and it is the first time I have ever heard him say this in all my experience of him, which goes back a very long time—he may be wrong. I must say that this was a concession for which we are very grateful. I think it ought to be inscribed on the portals of this House in some form.
I am ready to accept it for what I hope was no doubt sincerely intended. Why not take it back, give it consideration, and then come back, because I am fairly certain that very few noble Lords on either side of the House can understand why we are engaged in disputation on a matter of this kind. It is a matter of definition. Look at it again. Ask some of the other legal gentlemen to come in and give their opinion. You can have a second opinion, there is no harm in that, and it often happens in legal circles. Come back and tell us what you think, and we will come to some agreement.
§ LORD BEAUMONT OF WHITLEY
There are obviously real points in this Amendment, and the noble Lord, Lord Delacourt-Smith, put them forward. I cannot help thinking that this debate would have been shorter and closer than it has been if some of the noble Lords who have spoken had even read the definition 186 of "worker" on page 118 of this Bill, which clearly they have not.
§ LORD HANKEY
I agree with the noble Lord, Lord Beaumont of Whitley. If it would not be irrelevant under the rules of your Lordships' House, it would be very interesting to look at the effect of Amendment No. 35, where the noble Lords who have put down this Amendment have tried to avoid using "worker" and have instead used "employee". It occurs in paragraph (a) and in the last paragraph. It strikes me that you could not use "person" here because it would be meaningless, and if you use the word "employee" it does not include the self-employed or the person who is out of work or seeking to work. Therefore it seems to me that, by definition, it is rather safer to stick to the careful definition which we have on page 118.
§ LORD SLATER
May I ask the noble Lord whether an employee is not a person, just as he may be a worker? Why criticise the Amendment in regard to that? He is an employee and he is a person, just as he may be a worker.
§ LORD HANKEY
I did not want to prolong the debate by dealing with Amendment No. 35, but that Amendment deals with a very important provision which provides protection for these people. If you provide protection only for an employee, because your other word is too broad, then you will get into corresponding difficulties. So I come back to the word "worker".
§ LORD SLATER
If we carry on in the way the noble Lord suggests, we shall have to take this to its logical conclusion and instead of talking about a "manager" to talk about a "boss". The noble Lord, the Leader of the Liberal Party, is nodding his head.
§ LORD BYERS
I should like to make it clear that I was indicating dissent. I was also indicating dissent about the time we are wasting on this Amendment. We have a lot to do to improve this Bill and the sooner we get on with doing it the better.
§ LORD DELACOURT-SMITH
May I follow up the suggestion which was made by my noble friend, Lord Shinwell, that the Government should agree to take 187 this matter back for further consideration? He said that a number of details had been raised and a number of specific cases had been quoted at which the Government should have a look. Suggestions were made by noble Lords in various parts of the Committee about ways in which this matter might be dealt with. May I appeal to the Government to consider it further? There will be ample opportunities for us to return to
§ it, if necessary, but I should have thought that the contributions made by a number of noble Lords had made it clear that there was justification for a further examination.
§ 4.42 p.m.
§ On Question, Whether the said Amendment (No. 22) shall be agreed to?
§ Their Lordships divided: Contents, 68; Not-Contents, 158.189
|Addison, V.||Geddes of Epsom, L.||Raglan, L.|
|Archibald, L.||Greenwood of Rossendale, L.||Royle, L.|
|Ardwick, L.||Hamnett, L.||Rusholme, L.|
|Arran, E.||Henderson, L.||Sainsbury, L.|
|Bacon, Bs.||Hilton of Upton, L. [Teller.]||St. Davids, V.|
|Balogh, L.||Hoy, L.||Samuel, V.|
|Bernstein, L.||Jacques, L.||Serota, Bs.|
|Beswick, L.||Janner, L.||Shackleton, L.|
|Birk, Bs.||Kennett, L.||Shepherd, L.|
|Blyton, L.||Leatherland, L.||Shinwell, L.|
|Brockway, L.||Lee of Asheridge, Bs.||Slater, L.|
|Brown, L.||Lindgren, L.||Snow, L.|
|Buckinghamshire, E.||Llewelyn-Davies of Hastoe, Bs.||Stocks, Bs.|
|Burntwood, L.||Lloyd of Hampstead, L.||Stonham, L.|
|Champion, L.||McLeavy, L.||Stow Hill, L.|
|Cooper of Stockton Heath, L.||Maelor, L.||Summerskill, Bs.|
|Delacourt-Smith, L.||Mais, L.||Taylor of Mansfield, L.|
|Diamond, L.||Moyle, L.||Walston, L.|
|Douglass of Cleveland, L.||Noel-Buxton, L.||Wells-Pestell, L.|
|Faringdon, L.||Nunburnholme, L.||White, Bs.|
|Gaitskell, Bs.||Phillips, Bs. [Teller.]||Williamson, L.|
|Gardiner, L.||Plummer, Bs.||Wright of Ashton under Lyne, L.|
|Garnsworthy, L.||Popplewell, L.|
|Aberdare, L.||Buchan, E.||Fisher, L.|
|Aberdeen and Temair, M.||Burgh, L.||Fortescue, E.|
|Abergavenny, M.||Byers, L.||Gage, V.|
|Ailwyn, L.||Caccia, L.||Gisborough, L|
|Albemarle, E.||Carrington, L.||Gladwyn, L.|
|Alexander of Tunis, E.||Chesham, L.||Glasgow, E.|
|Allerton, L.||Clwyd, L.||Goschen, V. [Teller.]|
|Amherst, E.||Coleridge, L.||Gray, L.|
|Amherst of Hackney, L.||Conesford, L.||Greenway, L.|
|Amory, V.||Cork and Orrery, E.||Grenfell, L.|
|Ashbourne, L.||Courtown, E.||Gridley, L.|
|Atholl, D.||Cowley, E.||Grimston of Westbury, L.|
|Balerno, L.||Craigavon, V.||Hacking, L.|
|Balfour, E.||Crathorne, L.||Hailes, L.|
|Barnby, L.||Crawshaw, L.||Hailsham of Saint Marylebone, L. (L. Chancellor.)|
|Barrington, V.||Cromartie, E.|
|Beauchamp, E.||Daventry, V.||Hankey, L.|
|Beaumont of Whitley, L.||de Clifford, L.||Hatherton, L.|
|Belstead, L.||Denham, L.||Hawke, L.|
|Berkeley, Bs.||Drumalbyn, L.||Helsby, L.|
|Bessborough, E.||Dudley, E.||Hemphill, L.|
|Bethell, L.||Dundee, E.||Henley, L.|
|Bledisloe, V.||Eccles, V.||Hives, L.|
|Bolton, L.||Effingham, E.||Hood, V.|
|Bourne, L.||Elliot of Harwood, Bs.||Howard of Glossop, L.|
|Brecon, L.||Emmet of Amberley, Bs.||Hylton-Foster, Bs.|
|Bridgeman, V.||Essex, E.||Ilford, L.|
|Brooke of Cumnor, L.||Falmouth, V.||Jellicoe, E. (L. Privy Seal.)|
|Brooke of Ystradfellte, Bs.||Ferrers, E.||Jessel, L.|
|Blackburn, L. Bp.||Ferrier, L.||Kemsley, V.|
|Kilmany, L.||Nugent of Guildford, L.||Southwark, L. Bp.|
|Kindersley, L.||Piatt, L.||Stamp, L.|
|Lansdowne, M.||Poltimore, L.||Strange of Knokin, Bs.|
|Lauderdale, E.||Radnor, E.||Strathclyde, L.|
|Long, V.||Rankeillour, L.||Stratheden and Campbell, L.|
|Lothian, M.||Rathcavan, L.||Swaythling, L.|
|Loudoun, C.||Reigate, L.||Swinton, E.|
|Lucas of Chilworth, L.||Rhyl, L.||Templemore, L.|
|Lyell, L.||Rochdale, V.||Thomas, L.|
|MacAndrew, L.||Rochester, L.||Trevelyan, L.|
|McCorquodale of Newton, L.||Rockley, L.||Tweedsmuir, L.|
|Margadale, L.||Rutland, D.||Tweedsmuir of Belhelvie, Bs.|
|Massereene and Ferrard, V.||Sackville, L.||Vivian, L.|
|Merrivale, L.||St. Aldwyn, E.||Wakefield of Kendal, L.|
|Meston, L.||St. Helens, L.||Waldegrave, E.|
|Milverton, L.||St. Just, L.||Ward of Witley, V.|
|Molson, L.||St. Oswald, L.||Westminster, D.|
|Monck, V.||Sandford, L.||Wigram, L.|
|Monckton of Brenchley, V.||Sandys, L.||Willingdon, M.|
|Monk Bretton, L.||Savile, L.||Winchester, L. Bp.|
|Mowbray and Stourton, L. [Teller.]||Selkirk, E.||Wise, L.|
|Sempill, Ly.||Wolverton, L.|
|Northchurch, Bs.||Sinclair of Cleeve, L.||Yarborough, E.|
On Question, Amendment agreed to.
§ 4.54 p.m.
LORD DELACOURT-SMITH moved Amendment No. 23:
Page 3, line 33, leave out ("as between himself and his employer")
§ The noble Lord said: The construction of this clause rests upon the belief that one can make a complete distinction between the trade unionist or the would-be trade unionist in his relationship with his employer and in his relationship with the union. I want briefly to ask the Government to address themselves to this problem, and I think I can best do so by putting a situation which arises under the clause. I should be glad if the noble Earl who is to reply could explain what the position will be in the case of a firm, an employer, who has trade union recognition for one particular category of workers assigned to one union, if some of his workers covered by that union decide in fact for one reason or another to join another union and to seek, through that: union, to have a grievance remedied or representations made to the employer. In the event of the employer saying, "I already recognise Union A; you have chosen to join Union B, and I am therefore not prepared to consider representations from you", would he in fact be guilty of an unfair industrial practice under subsection (2), particularly paragraph (b), or would he be protected by subsection (5)? I think that this situation indicates the difficulty of drawing the sharp distinction 190 upon which the drafting of this clause so largely rests, and I should be grateful if the noble Earl who is to reply would indicate what is the course that an employer is expected to take in the kind of situation which I have described. I beg to move.
This particular Amendment would in fact alter the course and the content of the Bill quite considerably. The whole of Clause 5(1) refers to what rights the worker may have in relation to his employment. He may be a member of a trade union; he may elect to be a member of no trade union. If he is a member of a trade union, he may have the right to take part in the activities of the trade union; he may have the right to seek and accept appointment in the trade union; he may have the right to become an official of the trade union—and in all these matters the employer cannot interfere. The whole purpose of Clause 5 is to draw the relationship between the worker and his employer. The worker may have these rights—rights which are clearly spelled out and rights over which the employer cannot have any say. These are rights which are as between the employer and the worker, and that is the reason why it is important for them to be included.
The noble Lord, Lord Delacourt-Smith, asked what would happen if some members of a shop or a place of employment were to decide to belong to another union. The employer can choose what unions he elects to bargain with; but 191 the particular matter which the noble Lord has mentioned does not come within the purview of this particular clause, because the employees of a place of work can join any trade union that they wish to join. Therefore, it is perfectly possible for the employees at a place of work to belong to three, four or five different trade unions; the only point being that, whatever trade unions they do belong to, they will have rights under this clause, and they are rights with which the employer cannot interfere.
Of course, if one removes these words this gives the worker the right to belong to any trade union to which he cares to belong, and it also puts an obligation on a union to which he applies for membership to accept him irrespective of whether his application or his qualifications are reasonable. If one could draw a parallel, there would be nothing to stop a mine-worker from becoming a member of Equity or an actor from becoming a member of the Mineworkers' Union. That would be the effect of removing these words, which I suggest are important to this clause. I do not think that this is the effect that the noble Lord would wish it to have. The rights of a worker in respect of trade union membership as between himself and his employer are, as the noble Lord knows, spelt out later in the Bill under Clause 63. Clause 5 refers solely to the rights of a worker in respect of his employment, rights which his employer cannot interfere with. That is why I suggest that these words are important to the Bill.
§ LORD DELACOURT-SMITH
I am grateful to the noble Earl, but, with respect, he has not dealt with the point of difficulty which I raised and which demonstrates, to my way of thinking, how abstract and remote from the realities of industrial relations is so much of the drafting of this Bill. May I state the problem again? We have the situation of an employer who, having a particular category of workers, recognises, and possibly for many years has recognised, union "A." There has been no difficulty, no problem. This Bill comes into effect, and the day after, some of his employees who have been in union "A", or perhaps have not been in any union at all, decide to join union "B". They are 192 a small minority of the category of workers concerned. An official of union "B" goes along to the employer and says, "I am making representations on behalf of workers in your employ who have joined union 'B'. I want their grievances remedied", or, "I want to negotiate for them."
Under the Bill, what is the employer permitted to do? Is he to say, "I will listen to your representations; I will deal with you in exactly the same way as I have hitherto dealt with union 'A' which has the confidence of the great majority of my workers in this category."? Is he to say that, or is he to say, as an employer would normally say in these circumstances, "I recognise union 'A' for this category of workers; I do not recognise union 'B'"? In the event of his giving that answer, are the workers who have chosen to join union "B"—and this is a point of great practical importance—entitled to claim that under subsection (2), and particularly under subsection (2)(b), they are being discriminated against because they have exercised the rights to be members of the trade union which they have chosen?
That is the problem which I am putting to the noble Earl and to representatives of the Government. It is a very important practical problem because the trade union movement, and the employers, have devoted a great deal of time to trying to get some degree of order into workshop relationships, and it depends on the recognition of unions by employers. It is therefore of great importance to know what would happen in a case of the type I have described: because as I read the Bill, the employer is under an obligation to treat with union "B" on the same footing as union "A", and then we are straight away leading to a proliferation of unions, to the encouragement of breakaway unions and to an undermining of the efforts that the trade union movement collectively has made to try to keep reasonable order and to prevent people from shifting from one union to another in times of temporary grievance. I must press the noble Earl to answer my problem. If he can tell me that in the circumstances I have described the employer would not be under this obligation I shall be greatly relieved. But I cannot see how that can be squared with what is in the Bill.
§ THE LORD CHANCELLOR
My noble friend has answered the noble Lord once and I shall now try to answer him clearly for a second time. The whole problem would have been averted if the noble Lord had taken two simple precautions: first, to read the clause—which he clearly cannot have done with any degree of understanding—and, second, if he has a question to ask which bears no relation whatever to the Amendment which is proposed, to give us notice in accordance with the immemorial traditions of this House so that we should try to answer it. If the noble Lord had studied the clause under which the Amendment arises, he would have seen that it has to do with membership and not with recognition or collective bargaining. It follows, therefore, that the problem does not arise and cannot arise in the form in which he stated it. The clause deals with membership and not with recognition. The employer under this clause cannot complain of his employee joining a union, but he has no obligation, if he recognises one union for bargaining purposes, to take any notice of another union. He simply has to leave alone the member who joins it.
The effect of this Amendment, if it is passed, is threefold. In the first place, as my noble friend has clearly pointed out, it would prevent unions from excluding an applicant from membership, whether or not it desired to receive him or whether or not he is qualified to join it. In other words, it would deprive the unions of any right to receive or to refuse to receive members. It would prevent a union from imposing any qualifications on membership at all. It would abrogate the Bridlington rules, it would encourage poaching and it would encourage "scab" unions. The point that the noble Lord raised has no relation to the Amendment. If the noble Lord chooses to divide on this Amendment let me tell him that he is voting against the Bridlington rules; he is voting in favour of "scab" unions, in favour of poaching and in favour of depriving unions of any rights to impose a qualification on membership.
I have this to say to the noble Lord. We had a definite pledge from the noble Lord the Leader of the Opposition that there was going to be no filibustering at this stage of the Bill. In at least one 194 daily newspaper, a very shrewd and experienced political commentator this morning says that he was left in no doubt that the proceedings yesterday were a Lordly filibuster. I am bound to say that the noble Lord's pressure on my noble friend, who answered him fully, clearly, categorically and courteously, rather induces me to believe that that diagnosis is correct. I hope that the noble Lord, if he has problems to raise which have no relationship to the Amendment he proposed, will give us notice of them. We shall then try to answer them even better than we have done twice already.
§ LORD DELACOURT-SMITH
The noble and learned Lord seems, if I may respectfully say so, rather more angry than courteous. If he had done me the kindness of listening to the remarks which I made, no doubt inadequately, in moving this Amendment, he would have heard me say that this clause appeared to be based on the belief that one could consider quite in the abstract the relationship and the attitude of the employer to the individual who wished to join a trade union. I readily concede that the noble and learned Lord's experience of the law is far greater than mine, but I venture to suggest that experience of the problems of trade unions is perhaps greater in my case than in that of the noble Lord.
I sought, very inadequately, to suggest that there was a quite false conception underlying this clause and its approach, and that in fact the clause embodied and exemplified the abstract approach to industrial relations which runs through this Bill and which will do them very great harm. It seemed to me, wrongly perhaps—and wrongly, it appears, in the view of the noble and learned Lord—that the best way of drawing attention to this was to move to delete the words "as between himself and his employer", which are in one sense, I think the noble Lord will agree, the key to this part, at any rate, of the clause. I put what I think was a very reasonable problem, which arises exactly from the concept underlying this part of the clause: that you can treat the relationship between a worker and his employer in relation to trade union membership quite in the abstract, quite apart 195 from all the rights other people are exercising and quite apart from the rights of recognition and bargaining procedures. I put a specific problem, and I am glad to have received an answer to it. I confess that I did not understand it from the noble Lord who spoke first, but I did understand it from the noble and learned Lord just now.
§ THE LORD CHANCELLOR
I apologise if I in any way offended the noble Lord, but I thought that my noble friend's explanation was clear. I am glad the noble Lord has now accepted the explanation from me. I certainly do not wish to offend the noble Lord, but in fact I really thought that my noble friend had put it very plainly.
§ LORD DELACOURT-SMITH
My Lords, we have a long, long journey to go together on this Bill, and I feel that we should at any rate listen to each other's arguments at this stage of the proceedings. I assure the noble and learned Lord that I regard this as a very deep and serious defect of this Bill, which I sought to illustrate simply. As I understand it, he has told us that in the situation I have described, where there is a perfectly clear and satisfactory recognition arrangement and some members of a union which has been recognised choose to join another union, the employer will be perfectly entitled to, if the Bill is passed in its present form, to say to union B, "I am not prepared to accept representations from you", and that will not be discrimination under the Bill.
§ THE LORD CHANCELLOR
That is perfectly right. He is bound to say "I concede your membership, but I am not going to bargain with this particular body." This clause deals with membership and not with recognition. If the employer recognises one union, he is not bound to recognise another. He is, how-over, bound to recognise the right of members to belong to another union and not to persecute them for it.
§ LORD DELACOURT-SMITH
I am extremely grateful. This is valuable clarification, which was certainly not clear to me before. The Government are postulating a situation in which the whole of the apparatus envisaged under the Bill comes into operation. In fact, a great 196 part of industry is covered at the moment, not by closed shops or anything like closed shops but by the kind of situation I have described; and I think it is extremely reassuring to have had from the noble Lord the assurance that we are not likely to have this particular kind of difficulty, which I am bound to say I honestly—and I think reasonably— believed would arise.
§ THE LORD CHANCELLOR
I naturally accept everything the noble Lord has said. There has been a misunderstanding, and I hope we will remain good friends in spite of it—and I am sure we shall.
§ BARONESS GAITSKELL
May I add a comment in defence of my noble friend who has just spoken? This Amendment has clearly shown up one of the biggest difficulties in this Bill. We cannot fault my noble friend on his experience of trade union law: I challenge anybody in this House to challenge him on this. He has had probably a lifetime of experience on it. At the moment, we have not got a body of lawyers experienced in trade union law, and this Amendment has clearly shown this to be one of the greatest defects of this Bill.
§ LORD DELACOURT-SMITH
My Lords, I am grateful for the clarification given by the noble and learned Lord, and I ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 5.17 p.m.
LORD HOYmoved Amendment No. 24:
Page 3, line 35, leave out ("if he so desires").
§ The noble Lord said After that rather rumbustious little interlude, I rise to move this Amendment, which is a very simple one. I hope that I shall not be tempted to move from the Amendment to any other clause. I propose to concentrate on the Amendment which is now before your Lordships' House. I move this Amendment for many reasons. First, if those words are left in they leave this particular section of the clause very loosely worded indeed—and that is putting it very politely compared to what was said in another place when this Amendment was being discussed. But certainly I do not think anyone would challenge that it leaves the clause loosely worded.197
§ The whole of this clause, whatever else might be said about the rights of trade unions (and the noble Earl, Lord Ferrers, mentioned this), and whatever else it does, imposes on trade unions limitations and qualifications which they find repugnant. They say—and I agree with them—that the clause (and the Bill, for that matter) strikes a blow at the principle of the closed shop. Indeed it really attacks what we believe to be trade union interests, and if my assertion is correct then the Amendment I am moving today has a simple purpose, which is to remove these limitations and qualifications from the trade unions of this country.
§ It is not only the trade unions who want these words struck out of the Bill: there are many employers in many parts of the country who would like these words removed, because they realise that, despite all the criticisms that are made, there are great advantages in the closed shop negotiations as between the employer and his employees. The employers, as well as the trade unions, will argue that the closed shop is good both for negotiations and for industrial relations, and I want your Lordships to pause and consider just for a moment what would happen if the principle of the closed shop were to be destroyed. It would make it perfectly possible for other organisations to spring up inside these workshops and cause endless trouble, not only for the trade union but also for the employer. So, because I think the Amendment speaks clearly for itself, and I know that I shall not be accused by anyone of being too short—and certainly I hope not of being too long—I beg to move the Amendment.
§ 5.20 p.m.
§ LORD COOPER OF STOCKTON HEATH
I support the Amendment. This is a crucial point in the Bill; it sets out the rights of workers with regard to trade union membership. I wish, first, to draw attention to paragraph (a) which sets out the right of the worker "if he so desires" to be a member, and the next paragraph in which there is the right not to be a member, subject to subsections (3) and (4). The words we suggest should be deleted set out the permissiveness which is part and parcel of the philosophy of the Bill, to be or not to be a member of a trade union, which I think could cause a great deal 198 of difficulty and certainly will not contribute to good industrial relations. It clashes with the closed shop, and has to be set out in this way to indicate that a worker has the choice of being a member, or not being a member, of a trade union.
This is not an equal equation. Being a member, usually, is part and parcel of a collective effort. Not being a member is an individualistic approach to a situation, which does not help good labour relations. The amazing thing is that the alternative the Government put up to the closed shop is in practice fantastic—that of the agency shop. I think it relevant to dwell on this when talking about whether a person should be able to satisfy his personal desire regarding trade union membership. Under the agency shop a person may be allowed to start work, and within a short period he must be faced with the question, what is he to do about trade union membership. If he is not prepared to join a trade union where an agency shop has been conceded, he will be obliged to pay an appropriate contribution to the union, the appropriateness being in relation to the service it is assessed that he will receive from the union. If he has a conscience about the situation, the worker may pay to a charity. If he refuses to pay to a union or to a charity after, say, three weeks employment, he can be sacked. So this marvellous conception of an approach to individual freedom met by the agency shop means that a man is faced with certain choices, and if he docs not agree to them he can be given the sack. I say that that is a fantastic situation.
You cannot get a closed shop until you build up a high degree of trade union membership. I do not think that any trade union official has ever initiated a closed shop. By voluntary means membership of a union in an establishment is built up to about 80 or 90 per cent, and the odd few employees start sneering at the organised men, saying, "I get all you get and I don't pay for it." So the trades union members start pressing for the trade union to do something officially about a closed shop and eventually a closed shop is negotiated. Then comes the question of new employees. When we negotiate a closed shop, if there is a worker who has ' been employed by the firm for twenty or 199 thirty years and has not been in a union, very often we make an agreement that we will not interfere with him. In respect of a new employee, it is not unreasonable, where a closed shop is established, for the employer to have the right to say, "You can come into this workplace and work only if you join the trade union, because all the people in this establishment are already in the union." To try to move from that is discriminatory against trade unions and I will tell the Committee why. I had the privilege of putting this to the Minister when I led a T.U.C. delegation.
Under the common law up to now employers have had a right to lay down almost what conditions they liked under which people should work for them. Employers say to new employees, "You must join the superannuation fund,"or" You must join the sick fund, because it is a condition of employment." This is done already, and will not be interfered with. Why, therefore, do away with the right of an employer to say, "You must join a trade union with whom we have good mutual arrangements and with whom we have been working for years."? I support this Amendment, because it is part and parcel of other Amendments designed to try to get us back to something like recognition of the closed shop. I think that the Government are on a bad wicket over this. I think that to try to meet the point about individual freedom by destroying the closed shop and replacing it with an agency shop, where a man may be started and later sacked if he does not do what he is told, creates a very difficult situation.
§ 5.28 p.m.
§ LORD WINDLESHAM
It sounds quite reasonable to say no more than that every worker should have the right to belong to a trade union or an independent organisation of workers, and that that would be the effect of these three Amendments Nos. 24, 25 and 26. But, as was said by the noble Lord, Lord Hoy, in his admirably brief opening, behind these rather innocent words lies the whole concept of the closed shop. So therefore we need to look with some care at the significance of removing these words. I do not think, with respect, that this is the moment to have a general 200 debate on the closed shop, on which there are strong feelings and on which there is a great deal to be said from both sides of the Committee. Perhaps when we come to Amendment No. 27, dealing with the right to belong to a union, it would be the appropriate time to have a I wider debate.
In this clause we are touching for the first time on one of the foundation stones of the Bill, the right of an individual to join a union, or not to do so. The corollary of this right is that if he decides to become a member of a trade union, as we hope that he will, it must be for the worker to decide which union he will join. The noble Lord, Lord Cooper of Stockton Heath, correctly pointed out that the words we are discussing, the right "if he so desires", occur in Clause 5(l)(a) and (b), which deal with the right to belong or not to belong.
There has been a great deal of debate about this clause in another place. The Government were pressed to say whether or not they saw these as equal rights, as rights of equal weight; and of course it is very difficult to reply in these terms. Rights are not things that can be weighed out like sacks of potatoes. But what the Secretary of State has said is that the Government recognise that the right to join and the right not to join, although both are essential to the principles contained in the Bill, are not to be seen simply as equal and opposite rights. As he has made clear on several occasions in another place, we want to encourage the development of stable and strong collective bargaining machinery, and this will naturally depend on extensive and on loyal union membership.
The Government have made it quite clear that everything possible should be done to encourage workers to join the unions of their choice; indeed, subsection (5) of Clause 5 was added on Report stage in the House of Commons as a declaration of intent. The subsection enables an employer to give positive encouragement to a worker to join a union. Noble Lords will notice that no such provision applies to any employer who might feel encouraged to persuade his employees not to join a trade union; indeed, it would be an unfair industrial practice if he sought to do so. What we must at all costs avoid—as in fact the Bill does—is to 201 force a man against his will to join a union. There will always be some cases where, for some reason, an individual does not want to join a union. As I say, we shall be debating this particular point very thoroughly on later Amendments, but at this stage I should say clearly and unequivocally that we do not think it right that a man's livelihood should be at the discretion of a union. Noble Lords who saw the I.T.V. programme on the Industrial Relations Bill which was presided over by the noble and learned Lord, Lord Devlin, will remember the weight he gave to this particular question: is it right that a man's continued livelihood should be at the discretion of a union?
The detailed effect of making this Amendment would be that an employer might be able to maintain that he was acting in accordance with the statutory provisions if he required his workers to belong to a particular union, even though that union was patently inappropriate and was not recognised for bargaining purposes, and even though the employer had no agency shop agreement with that union. The whole point about the phrasing of Clause 5(1)(a) is that it provides a statutory right for the worker, as between himself and his employer, to choose, first, whether he wants to be a member of a union, and secondly, if so, which union. The removal of the qualifying phrase, "if he so desires", would relate to that first question as to whether he wants to be a member of a union, while the phrase "as he may choose" relates to the second question, which union, which we shall be debating on the next Amendment.
The noble Lord, Lord Delacourt-Smith, was very accommodating on the last Amendment we debated, and I hope that I can be equally accommodating on this one. But to do so I shall have to put a question to noble Lords on the other side of the Committee. Is this Amendment part of a series? Is it paving the way for further changes of substance in Amendments Nos. 25 and 27? If noble Lords will look at the Order Paper, they will see that Amendment No. 25 would enable employers to determine which union a worker joined, and Amendment No. 27 would delete altogether the right not to belong to a union. 202 If this Amendment is linked to that series, noble Lords will not expect me from this side of the Committee to say that the Government feel able, on matters of substance so important as this, to accept that particular line of argument. I hope, therefore, that the Opposition will be frank about this and will tell us really what is in their minds. Are they genuinely trying to improve the Bill by the deletion of these words? Is it their intention to improve the Bill, to clarify it by removing words, the removal of which they think would strengthen the Bill (Dr. Jekyll) or are they using this Amendment as a vehicle for outright opposition to the Bill (Mr. Hyde)? We should like to hear from them before giving a final reply.
§ LORD HOY
I am grateful to the noble Lord for the offer he has made, though I think he might have made it in a better fashion. To lean across and say, "I want to make an offer to you, but first of all are you Dr. Jekyll or Mr. Hyde?" is not a very polite way of doing it, and I rather resent his doing it in that way. I am sure he could not have thought that when we put down this Amendment we were not sincere. Of course we are sincere; and may I tell the noble Lord that I am so sincere that I do not intend to move Amendment No. 25? That, surely, is a fair test of sincerity. I will accept his offer, but there are one or two other things that I have to say to him.
There is one thing we have to make quite clear, as was made clear by my noble friend Lord Cooper of Stockton Heath earlier. It is said that if people join a trade union they ought not to be at risk because of the action of a trade union. Let this House remember that had it not been for the actions of trade unions throughout the years, workers would not have been in such a fine standing of life as they are to-day. Indeed, those few people who resent membership of trade unions do not resent the benefits which trade unions have brought to them, so they also have a responsibility. The noble Lord drives the point a little too far when he uses that argument, because he himself will admit that a person who does not join a trade union, or who joins an agency shop and then declines to con-I tribute either to the trade union or to 203 a charity, and gets the sack after three weeks or so is removed just the same. So the noble Lord should not accuse trade unions of doing this.
When the noble Lord said that my innocent words as I moved the Amendment were the equivalent of a closed shop, he was absolutely right. I thought I had gone out of my way to say this was exactly what I meant, and what my noble friend meant. This was not quite what we were arguing for, not simply to have it in this respect, but because we believed this was one of the ways in which we could in fact maintain good industrial relations. But if we were going to negotiate and make it easier for industry, it was much better that the employer should be dealing with one union and one set of workers, rather than have within his workshop half a dozen contending forces.
I do not want to be taken on to the next debate which I shall have the privilege of initiating. I want to confine my argument to each Amendment without taking in any extraneous matter, and that is why I moved this Amendment, pretty shortly and succinctly. So we are grateful to the noble Lord for accepting this Amendment, and to show our gratitude I have told him that, with his approval to Amendment No. 24, we will not move No. 25 and. with great advantage to your Lordships' House, will proceed to Amendment No. 26.
§ LORD WINDLESHAM
I appreciate what the noble Lord has said and it is not necessary for me to add more than a very brief footnote. I was not of course in any way questioning his sincerity. What I was doing was to place on record that if we are accepting this Amendment we are not doing so as any acceptance that there should be a limitation or infringement of the right either to belong to a trade union or not. But this is a concession the Government feel might well be made in the interests of commonsense. Do we really need these words in the clause? They are in paragraphs (a) and (b) but, as I have explained, the Secretary of State in another place has made clear that in his view they are not equal and opposing rights. They are very important rights. By adding the new subsection (5), he has put a statement of 204 intent on the Statute Book, to encourage workers to join a trade union. That being so, we feel that we can accept the Amendment, and accordingly I have pleasure in advising the Committee to accept it.
§ 5.41 p.m.
LORD HOYmoved Amendment No. 26:
Page 3, line 35. leave out ("such trade union as he may choose") and insert ("a trade union or independent organisation of workers")
§ The noble Lord said: May I express my thanks to the noble Lord for accepting the first Amendment to be accepted to this Bill. Your Lordships have been present on a historic occasion and I am grateful that I should have played a part in it, albeit not an important one. We are getting along so nicely that I should like to fill the first three places. Obviously I cannot do so, because another of my noble friends will be moving the next Amendment but perhaps I could fill the first two places and in that hope I now move this Amendment for your Lordships' consideration.
§ It is difficult to understand the Government's reasoning in this subsection. To say that a man may join any trade union he may choose seems to me to be a piece of nonsense (if I may phrase it plainly but not provocatively) and I should like to know what the Government mean by these words. May I give a simple example? As an apprentice, I had to serve six years and at the end of that time had to join the trade union that catered for my trade. I never thought that I had the right to join some other union. This is a little difficult to understand. I want to try to avoid quarrelling with the noble and learned Lord the Lord Chancellor, I but last night he said that there was no I closed shop in the legal profession. But I would never be admitted to the legal profession though trained in another profession. The members of the legal profession would say to me, "By what right I do you come into our profession? You I are not trained as a lawyer and you are not entitled to practise." I should be very foolish to try to do so; and if I did, I do not think I would get many clients. But what I am saying is that in the legal profession they have a closed shop just as we have one for each particular trade.205
§ THE LORD CHANCELLOR
The noble Lord is not quite right. In order to become a barrister, one has to pass the qualifying examination which is set by the Council of Legal Education and this involves membership of an Inn of Court. If one wants to become an M.A. at Oxford University, one must join one of the Oxford colleges. But they are not shops or unions; they remain Oxford colleges, and the qualifying examination is not a union membership. The professional association of the Bar is the Bar Council, which has about an 80 per cent, membership. We think, rightly or wrongly, that we are stronger by having only volunteers and not by introducing pressed men.
§ LORD HOY
The noble and learned Lord was claiming earlier this afternoon that he ought not to be asked to repeat statements he has already made and which he thought we had understood when he first made them. He made this statement on the last occasion; and he was so correct this afternoon that he has repeated exactly the same figures, so I cannot doubt the sincerity of his statement. All I am saying is that just as one has to have some qualification to get into the law, a man has to have some qualification to get into a trade union. A man cannot be trained in one trade and join some completely different union. Examples have been given in another place and here this afternoon. One can think of two trades where, if this were allowed, great danger can ensue to human life—I refer to the coal mines and the docks. What right have people without qualifications to go into these unions? We find this exceedingly difficult to understand.
If we allow this, it may even go further and arouse a temptation which I think is facing industry as well as the trade unions. May it not be, if the choice is to be as wide open as it is in the Bill as at present drafted, that some people may decide to have a breakaway organisation from the union concerned? In our lifetime we have seen some bitter internecine warfare taking place in this country between breakaway unions and the established unions concerned. If this choice is to be available, it will be open to any group of people to form a union in opposition to the recognised union. Frankly, I cannot think of a better recipe for internecine 206 warfare and industrial unrest. If that is ever attempted, the recognised unions would not be worth their salt if they did not take steps to fight that opposition to the bitter end. That is the position with which we may be confronted.
May I remind noble Lords opposite of the argument frequently used by them, that one of the great troubles of this country is that we have already too many unions. I do not think that any noble Lord will deny the use of that argument. Every time we discuss what is happening in the shipyards, for example, it is argued that there are far too many unions inside the yards. We have to reduce their numbers so that we get continuity of labour and fewer contending forces inside the shipyard and, as a consequence of that, the yard will have a better economic record and output. But let us be perfectly frank. If we accept the Bill in its present form, without the Amendment I am now moving, we shall produce the opposite result. So I would beg of the Government to look at this Amendment and meet the modest request that it represents. On behalf of my noble friends and myself, I have much pleasure in moving the Amendment.
§ LORD WILLIAMSON
I would call your Lordships' attention to the fact that this particular subsection, now amended, stands by itself. It is not qualified at all, and now reads:(a) the right to be a member of such trade union as he may choose.I think this subsection is one of the most important in the Bill. My noble friend Lord Hoy has made the point about too many unions—a point I made in my speech on the Second Reading—and I cannot understand those who argue for fewer unions such as there are in Germany where there are 16 unions, or one for each industry, and at the same time argue against compulsory membership. One of the most important factors connected with this clause is that there exist today in British industry hundreds, and possibly thousands, of industrial agreements where one trade union has agreed with the employer that all workers shall belong to this particular union and therefore the employer can negotiate with one union instead of four or five. It eliminates internicine warfare and also eliminates certain dissident people inside a 207 factory saying, "The union is no good; they settled for £2 a week and you chaps should have had £10".
This clause gives every worker the right to leave the union, to say to the men in the canteen, "The union which negotiated for you is no good, it is not militant enough, therefore you should join another union which you have a right to do under this Bill". This will ruin every decent working agreement in the country and every experienced trade union officer knows perfectly well that he would have to spend a great deal of his working time in stopping the dissidents and those who would break away and those who, sometimes for political reasons, would undermine a decent trade union. Therefore, I sincerely trust that this clause will be looked at again. I say to noble Lords opposite that if this goes through, within 12 months there will be such a hullabaloo in industry that you will have not only the Trades Union Congress on your heels, but also the Confederation of British Industry and every decent employer. Whoever thought of this either had no experience of these industrial matters or, if I may use a phrase coined by the noble and learned Lord on the Woolsack, "They were stark raving bonkers".
THE EARL OF BALFOUR
May I ask noble Lords to consider this Amendment. It says, "a trade union or independent organisation of workers". I am very scared of the word "independent". Is that independent of all other unions, independent of an agency shop agreement; independent of a closed shop agreement? If those words had been "other organisations of workers", I should not have been so worried, but I intensely dislike this word "independent". I feel that it could lead to all sorts of pseudo unions, it would be to the detriment of the genuine unions and would encourage workers to break away. "Independent" means completely free from everybody else. I am very unhappy about the word and I ask your Lordships or the noble Lords who moved the Amendment, to consider it again.
§ LORD SLATER
I rise to give support to my noble friend who moved this Amendment. I am delighted to see the 208 ex-General Secretary of the General and Municipal Workers in attendance as a Member of this House, Lord Cooper of Stockton Heath, because I may be referring to that union in the course of the remarks I make in regard to this Amendment.
As already indicated, noble Lords will have accepted, irrespective of what the Government spokesman has asked, that this clause sets out the rights of workers in respect of trade union membership and activity, but the whole emphasis is centred on what has become commonly known as the closed shop. It is obvious that the purpose and intention of the Government is to impress upon the general public of this country that what has happened over the years is that unions responsible for looking after the interests of their membership have had too much liberty, and have exercised it in such a way that individuals who did not believe in such a set-up have been literally forced to seek membership. On the other hand, those who do not accept in any circumstances such principles as operated by the unions have had to suffer indignity arising from the closed shop mentality.
The basic principle of trade unions in this country has been and still is to achieve 100 per cent, membership. As has already been mentioned by the three speakers from these Benches, there are far too many unions in this country. But one thing that they have overlooked is the fact that trade unions have been amalgamating over the last few years and the numbers have been much depleted. Secondly, just as many other issues have been overcome by amalgamations inside industry, principally based on certain types of industries, now, as I see it, the Government have slipped up in the wording of this particular clause, especially when they seek to have inserted in the Bill the words, "such trade union as he may choose". I want the noble Lord and particularly the noble and learned Lord the Lord Chancellor, to take particular notice of what I am now saying. Suppose, for example, an individual was working for a local authority as a roadsweeper; that the union recognised by that local authority for trade union negotiations was the General and Municipal Workers which, by the closed shop introduced by the 209 town county authority, was the negotiating body which the local authority used to negotiate on behalf of their workpeople. Then let us suppose that this employee, the new roadsweeper, is approached by the local branch secretary and is asked if it is his intention to join the union. By the provisions of this Bill he may choose the union that he desires. This is bound to complicate matters for the individual whom the Government are seeking to protect. When approached to join the General and Municipal Workers Union, which caters for his type of employment, he declines and says: "I am going to join the National Union of Mineworkers." On his approach to the branch secretary of that union he is informed that the National Union of Mineworkers provides membership only for those working in or about the mines. That is the constitutional working of the National Union of Mineworkers.
I should at this stage like to tell noble Lords how that system works. When I was a branch official, if a member who was a financial member wanted to change his occupation, he was given what we termed a clearance card, with the result that in entering on his new occupation he would in all probability be accepted without having to pay an entrance fee. We operated this system without any difficulty. If a member changed from being a face worker and became an under-official (what we class in Durham County as a deputy in charge of a particular district), he would be given his clearance card and told that he could no longer be a member of the face workers' trade union but would have to join the deputies' union operating at that colliery. That system still operates, and it has worked well.
To come back to the roadsweeper, surely it is not the intention of the Government to force the National Union of Mineworkers to accept such an individual into membership. That would be outside their code of practice of which we have heard so much in previous debates on the Bill. Here you have a situation where both sides have nothing in common. I would remind your Lordships that the closed shop can operate, and has operated, in local government. If this Bill were to go through with these words left in, it would be bound to create dissention among the membership 210 of the two main unions, apart from the educational union, N.A.L.G.O. and the General and Municipal Workers' Union. I do not think the Government want this to happen.
When I first looked at the Bill I reflected on the five years that I spent as Assistant Postmaster General in the previous Government. I well remember making a speech in the other place and informing Members that there were no less than 420,000 people in that Department, and that there were also over 20 unions. That took Members by surprise; they had never realised it. Some of these unions have a small membership, others a high membership. Before we left office, we put through a Bill and set up what is now known as the Post Office Board. Negotiations are taking place in regard to these 20 unions, with the result, I think I am right in saying, that the number will be fewer than when we were in office. Therefore, when the Minister responsible for this Bill talks about choosing, I would say to him: do not expect the National Union of Mineworkers to accept a roadsweeper into their union, because he is a non-miner and not associated with the industry; there is no accommodation for him and they would not be able to negotiate on his behalf.
§ LORD POPPLEWELL
In opposing this Amendment, I should have thought that the Government would have taken notice of history. To leave in the words "such trade union as he may choose" opens up a very wide prospect indeed. At the turn of the century, according to Donovan, there were some 1,323 trade unions, with a membership of just over 2 million. At the end of 1966, there were 574 trade unions, with a membership of over 10 million. Unions vary in size, from the 24 members of the Jewish Bakers' Society to the very big Transport and General Workers' and the Municipal and General. Some of these unions are so small and individualistic in their approach that they remain outside affiliation to the Trades Union Congress; and in con sequence, according to the latest figures I that I have there are now just over 130 unions affiliated to the Trades Union Congress. Leaving these words in the Bill would encourage an individual to join a union of his choice irrespective of the 211 merits or demerits of that union and of whether or not that union can negotiate for him. My noble friend Lord Williamson dealt with this, saying, in effect, that when a number of unions are engaged in a particular industry the negotiations are considerably bedevilled, and it is to the advantage of management to have a minimum number of unions. This clause would encourage growth in the number of unions.
We were challenged by the noble and learned Lord the Lord Chancellor on an earlier Amendment when he suggested that some of the points we were putting forward hit against what are called the Bridlington proposals. The basic idea in the Bridlington proposals was to prevent growth of trade unions; to seek the amalgamation of trade unions; to help towards eliminating lines of demarcation disputes, and a wide variety of other things. From the introduction of those Bridlington proposals remarkable steps forward took place. The suggestion we make in this Amendment is in accord with the Bridlington proposals. Objection has been raised to the use of the words, "independent organisation of workers", but there is a history behind this. So much is the trade union movement against the Bill and the ineptitude of the Government that many unions have said that they will not register. By virtue of not registering they may become independent workers' organisations. This is a sad story, but let us face it. The Government have tried to say that if those organisations do not register voluntarily they will automatically be accepted as registered although they say they will not register. I believe it is to cover this point that those words have been embraced in this clause. This is resented very much.
There is a strong feeling among trade unions that it is much better for there to be a limited number of unions in any given industry. I can speak only as an individual; I cannot speak for my trade union friends, but I believe in the development of the industrial trade union as a whole. I think the craft organisation which we have seen develop has served its purpose well, and in the light of present developments the need is for a minimum number of unions engaged in any bargaining in any particular industry. From that aspect I think the Amendment 212 is right, and I hope—perhaps the hope will not be realised—that the Government will see our point of view on this matter.
Another important matter which is concerned is the question of the agency shop. That is imported from America and, to say the least, we are very suspicious of it. One can only refer to past experience. One remembers the Foremen and Staff Mutual Benefit Society which is mentioned in the Donovan Report. I believe Rule No. 7 of that Society's rules said that if he were to maintain his position as a foreman a man must not belong to any trade union. In the development of the agency shop at a later stage such an organisation might very well qualify for recognition under an agency shop agreement.
§ 6.17 p.m.
§ LORD TAYLOR OF MANSFIELD
My immediate reaction on reading this Bill was that there was no reason for me to change my opinion that Clause 5 is perhaps one of the most important in it. It raises so many issues, disturbs so many emotions, strikes at tradition. Although the debate has been going on for only about three hours, I think it would be generally agreed that the clause is very important indeed. On this Amendment I have no desire to say anything about one of the fundamental issues raised by the clause, the closed shop. I listened to what the noble Lord, Lord Windlesham, said on that. Perhaps at a later stage we can discuss that fundamental principle. I read the debate on Clause 5 in another place. One of those who took part in the debate, a member of the legal profession, said that Clause 5 was the silliest clause in a silly Bill. I support this Amendment because I think the clause is full of danger.
I wish to re-echo some of the sentiments expressed by Lord Williamson. I believe that Clause 5 is charged with explosive material. If and when it is implemented it can bring about chaos and I disruption in industry. Why do I say that? When one makes any statement it is natural that those who are listening should expect a reason to be given for it. I say that the clause is full of danger and contains explosive material because it will destroy the good work done over many years by unions and employers in organising workers into trade unions on 213 the basis of industry. I draw the attention of your Lordships to the wording of the clause. It says:Every worker shall … have … the right, if he so desires, to be a member of such trade union as he may choose.If that comes about in some industries it will put the clock back. It takes us back to the days of fragmentation.
I shall give a classic example of what I mean by that term. The tragedy of inter-union and demarcation disputes is known to all of us. Without going into the details of what has happened in particular industries regarding these two forms of dispute, I would put forward the opinion that this clause is a licence to intensify the difficulties which arise as a result of inter-union rivalries and demarcation disagreements. With Clause 5, the Government Front Bench are making a rod, if not for their own back, certainly for industry in this country. The words in Clause 5, particularly in the subsection which I have read out, are a prescription for chaos and anarchy in industry, and many employers know it. Many employers have expressed those sentiments, even if not in those words. That is certainly the view of the trade union movement. The patient work over many years put in by unions and employers to get organisation on an industry basis, expediting negotiations, improving the atmosphere in industrial relations, could be destroyed by this clause. It provides a legal opportunity for chaos and anarchy in industry. That is not my idea of freedom.
Some 25 years ago the mining industry was, so far as the employers and trade unions were concerned, in a fragmented condition. There were some employers in one county and other employers in another county; there was the equivalent of organisation in one county but not in another county. It was a hotch-potch—a mess, I should like to give as an example what has been done by the mining industry, and I do not think that anybody will deny that the work has given good results. In 1944 the Miners' Federation of Great Britain came to an end; so did the county and district unions. They were organised in one union on an industry basis. When the coal industry came into public ownership the same applied. The National Coal Board and the National Union of Mineworkers agreed that they should 214 negotiate together and speak with one voice so far as the whole of the employees in the industry up to managerial level were concerned. Since that took place there has been less dispute, more harmony, a more peaceful atmosphere and a better understanding so far as industrial relations are concerned than the mining industry has ever known. I plead with the Government to think again. I suspect that the people who were responsible for this clause had little, if any, trade union experience in the field of industrial relations. The Government should think again before they destroy some of the collective organisation which has come into being over the past few years and before they do anything to cause fragmentation, which will poison industrial relations. I urge upon the Government to think again of all that is involved by putting Clause 5 in this Bill.
§ 6.26 p.m.
§ VISCOUNT MASSEREENE AND FERRARD
Before the noble Lord sits down, may I put this point. He says that if you do not have compulsion in unions you are going to have complete anarchy. But surety that falls essentially on the responsibility of the British working man. Surely it is far preferable if unions can attract people to join them through their sense of fair play, efficiency and responsibility. Any organisation is far stronger if you do not use compulsion to join it.
§ LORD SAINSBURY
I will take only a minute of the Committee's time. Looking at this matter from an employer's point of view I agree with every word that my noble friend Lord Williamson said. If you consulted the majority of industrial managers to-day they would agree with my noble friend Lord Williamson because they know that it always leads to disharmony when you get two unions covering the same workers, doing the same job in the same industrial shop.
§ LORD DOUGLASS OF CLEVELAND
I have tried—God knows I have tried! —to intervene, but now I find it is difficult to say something which is not repetitive. I have watched the behaviour of: the Committee in discussing an Industrial Relations Bill which is intended to bring discipline within industry. I agree that there should be discipline within industry: discipline imposed by the 215 people elected by the workers in the industry. It is true that we have slipped away from that somewhat. Mrs. Barbara Castle discovered that the Emperor had no clothes, and said so when she remarked that the power is now in the hands of the shop stewards. That has been self-evident to many of us in the trade union movement over many years. It is a natural growth. They are near the scene where disputes arise; they have responsibility for settling disputes. What is more natural than that they should take the power which comes into their hands by the evolution of industry?
What has not been seen in the industrial world is that the elected representatives not only include the shop stewards; they include the executive councils and the regional committees. The executive councils in many cases have been rather lax about imposing discipline upon their members. They say, "We are not called upon to police our shop stewards." It depends on the language you like to use. I think they have a responsiblity to the industry in which those shop stewards are operating and a responsibility to tell the shop stewards if they, the executive council, feel they are doing their job wrongly. So there is a gap in the control, or there has been a gap in the control. We are trying to fill that gap at the present time. But if you read your current newspapers you will see that shop stewards in some industries are objecting to the imposition of discipline by their general secretaries in making agreements over the heads of the shop stewards.
Why is this happening? If you trace the history of trade union negotiations at the present time you will see that we are moving towards a gaol that this Bill is going to drive us from unless we are very careful. When you have a strike of any considerable dimensions—and we are growing to that now—the union has to spend a very great deal of money. Has it never occurred to noble Lords opposite that the union cannot allow a lot of money to be spent without knowing that it is being properly spent, fairly spent, and not spent in such a way that it will leave the union defenceless if it has to call a justifiable strike at some future date. The responsibility is on the executive council to control what is happening 216 in the union; and the natural movement is towards that situation at the present time.
THE EARL OF DUDLEY
May I ask the noble Lord a question, with all due deference to his experience—very much greater experience than that of many noble Lords in this House? As he addressed his words to "noble Lords opposite", noble Lords on this side of the Committee, may I ask whether he could explain what his observations, in which I am very interested, have to do with Amendment No. 26?
§ LORD DOUGLASS OF CLEVELAND
If the noble Earl will have just a little patience—I know from experience that he is impatient—he will find out exactly what I mean. There are so many undeveloped arguments in this Committee, particularly from the opposite Benches, that sometimes I despair of noble Lords opposite listening to an argument which leads to a conclusion.
If you are going to have this sense of responsibility inside the trade union movement, it is essential to have control. All of us who have experience in the trade union movement have been told at some time or other, "Your members are breaking agreements; they are breaking rules. It is up to you to put them right." And we have done it. Some employers would develop that to the point where they regard us as the people who should impose discipline on all occasions, in spite of all the wrong things that they as employers do which destroy industrial relations—and I have seen plenty of them in my time. The union cannot carry its discipline that far. There must be some reciprocation; there must be a community of effort between the employers and the trade unions.
If you start at the branch level and you are organising men, it is at this level that the local official is going to be told that his local people are breaking rules. This is where you start. Will some noble Lords opposite who have been singularly silent in this debate, although they have previously expressed agreement with the point of view we have expressed, tell us how we impose discipline on a man who is not a member? How do you do that?; We have hauled members before the branch committee to tell them that they must obey the rules and regulations and 217 honour agreements. If there were something in this Bill about sanctity of agreements, I think it would meet with approval by a lot of people in this country on both sides of the fence—I do not say "employers and workers"; I say "managers and workers" because there are not many employers left; we are all employed by somebody these days; we are managers and workers. If we had some co-operation from the employers at this crucial moment in our industrial history, when discipline by general secretaries is being objected to by shop stewards, that movement for sanctity of agreement, could grow. But unless we have control over the membership, it will not grow.
But, of course, this clause makes matters worse. It not only refuses us control over all members; it says to the members, "You may join another union where you will be controlled by somebody outside the industry". I can imagine a man saying, "I want to join the Textile Workers' Union", when he belongs to the steel industry. And if he was wickedly disposed he would want to do it for a particular purpose. I am not speaking against textile unions; I am mentioning them because Lewis Wright is a friend of mine and he will not misunderstand me; some other people might misunderstand me if I were not careful. Would you have Left-Wing organisations in this country whose intention is to disrupt industry? It will need only one man in 500 to cause that disruption. Can you imagine reporting back to branches? I ask you to imagine it, because you cannot have had any experience when you put a Bill like this forward. Can you imagine reporting back to a branch, "We have been offered £1"—£2, or whatever it is—"and we recommend acceptance"? This is responsible trade unionism. What so often happens now is that the malcontent says, "That's not enough. We are going to have more"—without any reason whatever, without any regard to the industry, without any regard to the union. One man can hold up a branch meeting for two hours until everybody goes out sick, sore and tired of the act. Then they get the motion over; but they do not accept the agreement recommended by the officials. This happens to-day. What is going to happen with this Bill is an intensification of that—a glorious opportunity for the Left-Wing 218 people to come in and disrupt negotiations.
The Conservative Party, which has said so often that it wants to help the trade unions, that it wants to help industry, that it wants industrial trade unionism, is going to destroy all those things which it has assured us over the years it wants; and not only over the years; in the past few days. The noble and learned Lord the Lord Chancellor himself has told us that this Bill is to help trade unions. How in God's name is this going to help the trade unions, the employers or the country? I appeal to your Lordships, in spite of the fact that you do not have the intimate knowledge that we on this side of the Committee have, to believe that we are not speaking for the trade unions alone. We are speaking for the country and we are speaking for the industry we love, the industry in which we work, in which we want discipline. For Heaven's sake! accept what we nave suggested in this particular Amendment in order that we may be able to do that little—more than a little—whicli so many trade unionists are doing in the country to-day to help put this country back on to its feet. Do not include poison in a Bill, which has some good points (and maybe I will speak on the good points as we go along, as the noble and learned Lord asked us to do), and make it a witches' brew by putting that poison in among the fairly good herbs that might be in some parts of the Bill. Please do not poison either the brew or the trade union movement.
§ 6.39 p.m.
§ LORD COLLISON
I have not intervened in any of the debates that have taken place so far; I have not thought it proper to do so. But I feel I must make a point on this Amendment 26 which has not yet been made and should be considered. What my colleagues have said about inter-union rivalry is perfectly true. It is perfectly true that members of responsible unions can be made dissatisfied and can be tempted into some other organisation which is not so responsible, and which has not the interests of the country or the workers at heart. The only way that this can be prevented is by giving the unions themselves some authority. To my knowledge the only real authority which can be imposed upon the trade unions—and that is not the 219 word, because it is not an imposition; it is an acceptance by trade unions—is through the action of the disputes committee of the T.U.C.
I intervene because I think that if Clause 5 is approved it will undermine the T.U.C. itself, and will certainly prevent the disputes committee of the T.U.C. from operating. I have been the chairman of several disputes committees of the T.U.C. in the past in which members have been approached by trade unions— wrongly, because the Bridlington Rules say that where a union is seen to have organising rights, where it is seen to have negotiating rights, it should have rights to the workpeople in that industry, and they should not be taken away or "poached" by any other union. I have sat on a disputes committee when unions have been told by the committee that they must hand back a large number of members they had taken from a responsible union in this way. It is also perfectly true—and I know I am repeating what has been said already—that there is a problem about the multiplicity of trade unions in this country.
The other problem which has been spoken about is that of a battle within the trade union movement. This is where the T.U.C. has to have some kind of power; and is it not rather remarkable that I cannot remember more than two decisions of a disputes committee being challenged by the unions concerned, even where they have been disciplined fairly severely by the General Council of the T.U.C. following the disputes committee. I believe that in the interests of the trade union movement, in the interests of industry, and in the interests of the country we should not, as a Parliament, do anything to undermine the power of the T.U.C. in this field. The simple point I am making—and if I am wrong I am sure I shall be corrected—is a point of fact. It seems to me that if Clause 5 is passed the T.U.C. itself and its disputes committee would be in contravention of the clause, and in contravention of any code that is produced. I think that would be harmful to the trade union movement, to industry and to the country. I am only speaking because I want noble Lords on both sides of the Committee to think seriously about it.
§ 6.43 p.m.
§ LORD STOW HILL
I hesitate to intervene in a debate after noble Lords with such vastly greater experience than mine have addressed the Committee. I only do so in order to make a suggestion to the Government which I hope they may feel able to accept. At the moment we have not heard the reply from the Government spokesman, and I do not know whether or not the Government are disposed to accept the Amendment which is under consideration. Supposing they are not prepared to accept it, I am asking the noble and learned Lord the Lord Chancellor—who from the activity of his pencil I assume is going to reply —
§ THE LORD CHANCELLOR
No, I think the noble Earl, Lord Ferrers, is going to reply, but experience shows that the Government speech does not always end the debate so I like to keep a note of what has gone before.
§ LORD STOW HILL
I can only express myself as deeply gratified that the noble and learned Lord should think it worth while making a note of the modest observations which I am addressing to the Committee, but modest as they be, these are they. If the Government do not feel able to accept this Amendment I wonder whether they could undertake, between now and Report stage, to see whether they can find some language which at any rate will go part of the way to allaying the very serious anxieties which have been expressed from this side of the Committee with regard to the dangers of splinterisation.
What is the position as the wording of the Bill at present stands? The choice which is given under Clause 5(1) paragraph (a) is absolutely unlimited; it is completely unfettered. If there are a number of trade unions which a particular disgruntled worker might join he can select the most disruptive, and there is nothing in the wide world which can stop him. Under the provisions of Clause 5(2)(a), if the employer seeks in any way to discourage the worker (as I read it) from joining a thoroughly disruptive and damaging small splinter union, the employer is guilty of an unfair industrial practice. I suppose the position is really this. There may be in a plant, or in a section of industry, 221 an approved closed shop entered into I after the procedure envisaged by Clause 16 has been gone through. In that case, as I understand it, (although I am not quite sure whether I am right in my reading of Clause 5) for the employer to discriminate against the worker if he re fused to join a union which was party to the approved closed shop agreement—
§ THE LORD CHANCELLOR
I hesitate to interrupt the noble Lord, but he is trying to be helpful and so am I. I think if he will look at Clause 5 again—and this is one of the difficulties I have been in as I have listened to this debate—he will see that the effect of the Amendment, and of the clause, are approximately the reverse of what he is trying to put to the Committee now. If we omit the phrase about the workers' right of choice, that is to say he has a right as between his employer and himself to choose his own union, and if we omit the words that he can join the union of his choice (as in the Amendment), that means that the employer can choose for him. Therefore, to the contrary of what the noble Lord is saying about the legal effect of the Amendment, it would have the reverse effect: it would enable the employer to do the very thing that the noble Lord is afraid of.
§ LORD STOW HILL
I quite follow that, and I am grateful to the noble and learned Lord. What I had in mind, in order to meet the point which he has just made, is some wording—and I do not seek to draft standing up—which would connote the idea of the union which is, broadly speaking, representative of the workers engaged in that particular plant or section of industry. I am sure the noble and learned Lord will give consideration to it, and if wording of that sort were to be incorporated I do not think the point he has just made would arise.
§ THE LORD CHANCELLOR
As the noble Lord is being so patient with me, may I intervene again for a moment? I think we are now discussing something real about this, and I would like him to know what is in my mind before my noble friend speaks on this Amendment. If the noble Lord will look first at Clause 63(2), about the right of a union to refuse a member of an inappropriate class to 222 its own membership, and then reflect that the Bill contains nothing which is adverse or hostile to the Bridlington Rules (to which reference has already been made), I think he will then reflect on this Amendment, first, that the words in this clause giving the worker the right of choice are essential to deprive the employer of the right of choosing for him. Second, if the union has the right of rejection in Clause 63(2) of an inappropriate worker and third, if the Bridlington Rules are then invoked to bring pressure on unions to exercise that right, it has exactly the effect for which he is pleading. If he thinks of a better solution, we will, of course, consider it, but I think he will see that much of what has been said in the debate so far is based upon the failure to relate the words giving the worker the choice to the words giving the union the right of rejection to the fact of the Bridlington Rules.
§ LORD STOW HILL
I am again very grateful for that intervention, and I am sure my noble friends on this side of the House will wish to study very carefully what the noble and learned Lord has just said. But, such as my thinking had been up to that point, it seemed to me, subject to what the noble and learned Lord has just said, that (a) you might have an approved closed shop in existence under Clause 16 and in that sort of situation perhaps different results arise; or (b) you might have an agency shop agreement. Under the terms of an agency shop agreement, of course, the worker is perfectly entitled to refuse to belong to (shall I say?) the representative union and, instead, to pay either an appropriate contribution to that union, without being a member of it, or alternatively a charitable contribution. Or there might be a case where there was certainly a representative union, well disciplined, well recognised, carrying great authority, and a number of the sort of people my noble friend Lord Douglass was describing, bent on nothing except disruption, who formed themselves into little dissident groups, bringing themselves into the definition, not of a trade union if they are not registered, but at any rate an organisation of workers, who sought to tempt the disgruntled to give his allegiance to them and not to the recognised disciplined union. When one comes back to Clause 5, and bears in mind what my noble 223 friend Lord Taylor of Mansfield was saying at the outset of the debate, if the choice is as wide as at present, the right to belong to such trade union as a man may choose, and if that right is supported by the sanction contained in subsection (2)(a), which expressly preserves that right under subsection (1), is not one really rather unnecessarily moving towards the danger of the wholly undesirable "splinter" unions?
If I may complete the argument that I should like to address particularly to the Government Benches, would it not be possible—again I am leaving out of account the case where there is an approved closed shop, and dealing with cases where there is not—so to qualify the words, assuming that the Government cannot accept the Amendment proposed in paragraph (a), as to limit the option of the worker in some way to joining the recognised union, however it is described in the definition which the Government would be able to devise, or not joining it? If that were the option made sacrosanct by the sanction contained in the next subsection of the clause, one would surely to a very large extent obviate the danger about which my noble friends are anxious. There would be a strong motive to join the recognised union, but at the same time, in so far as the Government are anxious that it should be a matter of free choice for the individual worker to join or not to join, he would not be compelled by that language to join the authorised union, but he would have no encouragement whatever, if he did not join the recognised union, to join some purely "splinter" union the whole purpose of which was to undermine the authority of what I call the recognised union. I hope that the noble and learned Lord, or whoever replies, will be kind enough to say to this side of the House that they will think very earnestly between now and the Report stage whether it is possible to devise some form of wording that will to some extent limit the conception of choice conferred on the worker by paragraph (a). I hope the noble and learned Lord will feel that that is a reasonable request, and will say that he will at least think about it.
§ LORD BEAUMONT OF WHITLEY
May I come in very briefly on this particular point? It seems to me that we are 224 now discussing the crux of the whole Amendment and the clause. I was most interested in what the noble Lord, Lord Stow Hill, had to say and in the reply by the noble and learned Lord. I suggest to the Government that there is just one weakness in the noble and learned Lord's argument which can be called upon in support of Lord Stow Hill's plea that a little more thought should be given to this matter. The noble and learned Lord said, and I think absolutely correctly, that if you have the present clause as it stands, if you also have the right of the trade unions to refuse the inapposite worker, and you have the Bridlington Rules, you will avoid the kind of splintering about which noble Lords on this side have been talking for quite a time and which we all want to see avoided. But is not the weakness of this argument that the Bridlington Rules are not in the Bill; and that they are not statutory but purely voluntary? That surely is a weakness in this Bill, if it depends for its proper and best working on the continuation of a totally voluntary agreement which for one reason or another may disappear in whole or in part at any time.
§ 6.55 p.m.
It is a little time since the noble Lord, Lord Hoy, moved this Amendment, and when he did so I thought it was rather nice to see a hopeful I smile on his face because in the last Amendment he moved he had been successful, and it had been accepted by the Government. I hope that his smile will not be entirely removed by what I have to say on this Amendment. We have had a very interesting debate, and it has been notable for the fact that taking part in it we have had what I can describe only as a phalanx of trade union leaders, indeed of experience. If any noble Lord has experienced the thought of standing up before a firing squad the members of which have come in, one by one, each armed in his own right with a very fair weapon, he will have a fair idea what it feels like to have to reply to speeches made with a very great degree of knowledge and an unqualified degree of experience.
May I say at the outset that I feel that what has been said, extremely important as it is, results from a possibly incomplete understanding of the effect 225 that accepting this particular Amendment would have on the Bill. The noble Lord, Lord Hoy, and indeed others, begged the Government to have a look at this again; and of course we will always look again at any point on which we feel there is any likelihood of being able to help, or any likelihood that we have misconstrued the object of the Amendment. The noble Lord, Lord Williamson, said, in support of the Amendment, that if there was a union which was no good the members of the union would disagree with what the union was doing, and the Bill would encourage splinters and encourage those members to go and start up another union.
§ LORD WILLIAMSON
I did not say if the union was no good; I said the opposite. I said that where it was a good union dissidents and disrupters would undermine it by saying that it had settled for something less than it ought to.
I accept the noble Lord's point, but what I was suggesting was that it might be the members of the unions who, being dissidents, said that the union was no good. Of course, if union members wish to go and join other unions that may be so, but that is not the effect that this Amendment has. Indeed, a number of noble Lords referred to this clause and said that it would be encouraging the proliferation of unions. The noble Lord, Lord Douglass of Cleveland, said that, and said he was very much against it. Indeed, so are we very much against the proliferation of unions. But this particular Amendment to this clause refers to the rights of the workers as between themselves and their employers. In this respect, the clause merely gives to the worker certain rights, not with regard to his union membership but with regard to himself and his employer. The effect of this is to allow members of trade unions to belong to whatever trade union they choose and, having so chosen, their employer cannot interfere with them.
Clause 5 relates to rights between the worker and his employer. Clause 63 refers to rights between a worker and his union. That 226 being so, it is up to the union to decide whether or not the worker in question should become a member of the union. Having become a member of the union, this clause merely states that the employer shall respect that member's right of membership and shall not interfere with him.
§ LORD DOUGLASS OF CLEVELAND
May I intervene again? Quite frankly this legal tangle is getting much too erudite for me to understand. If so, I do not think trade union men will understand it. If they do not understand it, then it can be destructive rather than constructive. If the trade union says that it will not work with a certain man (and it will say so), and it says that to the employer, is it the employer or the trade union which is telling the man that he has to join the union?
I take the noble Lord's point, but what union the employer chooses to recognise as a bargaining agent, or as the union with which he wishes to do business, is something totally different from what is dealt with here and it comes later in the Bill. One imagines that in 98 per cent, of cases employers will decide which unions they will bargain with. There are provisions in Clause 43 dealing with cases where there is not agreement over this, and there are arrangements whereby it can be decided what unions the employers should bargain with. That is something totally different from what this Amendment says and what this clause deals with. This clause deals entirely with the rights of the worker as regards membership of a trade union, and as between himself and his employer, and the fact that, if he is a member of a trade union, he should be allowed to take part in trade union activities, and so forth, without any fear of interference from his employer.
The noble Lord, Lord Slater, referred to what would happen to a road sweeper who wished to join another union. That came up under Amendment No. 23, and really does not apply here. In this particular clause we are not concerned with the rights of workers to join unions; we are restricted solely, if I might repeat it again, to the person who has joined a union; that his membership of that union shall be respected by the employer. If we were to accept this Amendment, it would in fact have a fundamental influence on the Bill, and on workers and 227 employers. My noble friend Lord Balfour said at the very beginning that he was a little worried about what the word "independent" meant.
§ LORD BROWN
If I may interrupt, it may be helpful. "As between himself and his employer" is a piece of appalling drafting. It can have only one meaning. A right is something a person can exercise, or some entitlement, but if you add "as between himself and his employer" it can only have the meaning that he has the right to prevent his employer from doing something. If this clause started with the fact that he has the right to prevent his employer from doing something, then I believe we should begin to understand it. But it is such bad drafting, and this continued reiteration of the noble Earl—I can understand why he does it—of "as between himself and his employer", and the meaningless-ness of that term, is leaving us all in a sort of mystification.
I shall try to explain it to the noble Lord and clarify the mystification which he is in. If it is any consolation to him, I was equally mystified for some time as I tried to understand it, but eventually I did understand it. I put my mystification down to my own rather limited powers of comprehension, and I am glad that at least they are shared by the noble Lord, Lord Brown. If you leave out these words it says that every worker shall have the following right; that is, to be a member of a trade union. The noble Lord, Lord Slater, asked how is one going to stop a road sweeper from becoming a member of another union. That would be precisely the effect if those words were left out. It is because these words "as between himself and his employer" are in, that a road sweeper has not the right to join, say, a mineworking union.
§ LORD BROWN
The noble Earl is not explaining the real meaning of the term "rights as between himself and his employer". If I said "rights as between me and you" I should imagine I would be murdering the English language, because it would be leaving it uncertain as to what is meant.
I do not know whether we can really pursue this point 228 very far, because it was pursued in an earlier Amendment. Will the noble Lord bear with me a little, and realise that in fact this particular clause—if he will forgive my referring to it again—does refer to the person's right, with regard to his employer, to be a member of any such union as he may choose. If we accept this Amendment it would make a pretty substantial difference to the Bill, because it would allow rights under this clause which, at the moment, are restricted to members of registered trade unions, to apply also to the independent organisation of workers. Indeed, I think it was the noble Lord, Lord Popplewell, who said that that was really the object of the exercise in putting down the Amendment. As noble Lords know, under the Bill trade unions are invited to become registered. I am aware that there are many noble Lords and many trade unionists who have come out against registration, who dislike it and who feel that it is curtailing the powers, the influence and the effectiveness—indeed, many people would say the very independence —of trade unions. One can understand people who have spent a lifetime working in trade unions having that feeling and bridling at the thought of having to have their unions registered. I should be the first to accept that this is a fairly sensitive area of union feeling, and one in which fundamental loyalties and basic conceptions of trade unionism come to the fore. But I think that those fears—understandable and very real as they are; and I do not deny that they are both—will be shown to be not so troublesome as some people feel.
I do not want to get involved in a detailed discussion of the merits and methods of registration, because they come later in the Bill. But one must make it perfectly clear that, at the centre of the Government's industrial relations policy, is the belief that unions should be registered and that, in return for the relatively modest disciplines of registration, the unions, their officials and their members should be able under the Bill to enjoy legal rights and privileges and protections which will not be enjoyed by unions which are not registered. Put in another way, if organisations are to enjoy the very considerable benefits of registration they have a duty to their members, and to the community as a whole, to accept the responsibility of securing for their 229 members the protection which registration gives both to the individual and to the organisation. The requirements of registration are not onerous, but they will ensure that a union's rules conform to reasonable standards; and it is difficult to justify a statutory right to belong to an organisation which is not prepared to observe those standards.
One comes here to the real difference of opinion, because noble Lords opposite feel that this provision is curbing the powers of trade unions, whereas we on this side take the view that, far from weakening the trade unions, it will be a very real means of strengthening them. The idea of registration is not peculiar to this Bill nor is it peculiar to the Government, because it was proposed in In Place of Strife and by Donovan. So that the very centre-piece of the Bill, around which all of its provisions are constructed, is the registration of the unions. It is to the registered trade unions to which the privileges are given, and it is to the registered trade unions and their members that protection against dismissal, penalisation and discrimination are given. Yet the real effect of this Amendment which the noble Lord, Lord Hoy, has moved is to give a legal right for workers to join an unregistered trade union.
Here I should like to make a distinction. Of course a worker has a civil right to apply for membership of any union, whether it is registered or unregistered, in the same way that he has a civil right to join a cricket club or a golf club. But the legal rights which he will get by law, and which are conferred on him under the Bill, will accrue to him only if he is a member of a registered trade union. The drafting of Clause 5 does not leave the member of an unregistered organisation without any statutory rights or protections at all, because under Clause 22(4)(a) it will be unfair of an employer to dismiss a worker unless good reason for such dismissal is shown; and it is hardly likely that dismissal solely for belonging to an unregistered organisation would be construed as a good reason. In practice, therefore, those who elect to belong to an unregistered organisation will enjoy a measure of protection under the Bill. But it will not be so great as that for those who choose to belong to a 230 registered organisation; and I believe, in the interests of the workers and of the community as a whole, that neither should it be.
But, of course, the Amendment goes further than that. It takes away from a worker the right to belong to such trade union as he may choose. The noble Lord, Lord Hoy, asked: "What does 'of his choice' mean?" It means exactly what it says: that he has the right between himself and his employer to join such trade union as he may choose. It does not give him an unqualified right to demand membership of a union; and if a worker chose to join some other union instead of, or in addition to, the union which was recognised by his employer then he would be able to do so. One of the effects of accepting this Amendment would be to take away a worker's legal right of choice to join a union, and it would replace it with a legal right to be a member of a union, which might be a union of his employer's choice. The Amendment would give the worker only the right to be a member of a union, which could be one selected by his employer; and if he chose to join another union he could be penalised, or dismissed, or discriminated against, and he would have no redress against such action. The Government do not believe that a worker should have to accept the union of his employer's choice. Needless to say, the employer, subject to agreement with the unions concerned and subject to the "recognition" provisions of the Bill, will be able to decide with which union he will bargain.
One comes back to the point at which we started. It will be up to the employer to decide with which union he bargains and that is something totally different—
§ LORD BROWN
Is the noble Earl really suggesting that employers commonly decide: "We will negotiate with that union, and will exclude all the others"? It is not so. Employers negotiate with the unions which have the most strength and the biggest claim to be the bargaining union for those employed. The employer does not choose which union he will negotiate with.
This matter really belongs to a later part of the Bill. I 231 introduced it at this juncture merely to explain to the noble Lord—and evidently I have so far been unable to explain to him—that Clause 5 and the Amendment refer solely to the right of the employee to be a member of a union.
§ LORD BROWN
The noble Earl cannot brush away a statement which I believe to be fact simply by saying that it belongs to another part of the Bill. There is nobody in this Committee with any industrial experience who would accept the noble Earl's contention that an employer chooses with which union he will negotiate. The unions are powerful, and it is they who decide, not the employer. It is a mis-statement of fact to go on repeating that employers choose; they do not.
The noble Lord. Lord Brown, can hold his view. All I say is that one of the effects of making this Amendment would be to curtail the right of the worker to choose which union he will join, because he may be in the position of joining a union which the employer chooses. It is our belief that the employee should have the right to choose which union he wishes to join, and that having done so he should have the rights and protections and privileges which this Bill gives. I believe that this is right. But the noble Lord's Amendment would have a very different effect from that which he thought it would have.
§ LORD DOUGLASS OF CLEVELAND
May I ask the noble Earl whether he will answer some of the arguments that we have put forward, instead of answering those which we have not put forward?
This is the trouble, because the arguments which have been put forward have been to the effect that this provision is encouraging "splinter" unions, greater unions and the proliferation of unions. What I tried to point out was that the particular Amendment which the noble Lord, Lord Hoy, put down would have a different result, and does not incorporate the very pertinent arguments which were put forward. I have tried to show the effect that the noble Lord's Amendment would have, and what I have said is, I agree, different from the remarks which other noble Lords have made because this particular Amendment 232 does not allow the proliferation of unions which the noble Lord fears.
§ LORD COLLISON
I apologise, but I feel that we have not had a satisfactory answer to the rather direct question which I asked. I was speaking to this Amendment, not necessarily arguing for it, but arguing that the clause itself, Clause 5, should be looked at. I am not at all happy, because I believe that if, for instance, the disputes committee of the T.U.C. instructs a union to hand back members it has "poached" from another union, it will be argued in aid that Clause 5 says that which union a man shall belong to is a matter to be decided between the man and his employer.
I am sure it is understood that we trade union people are not arguing this in order to be difficult or contentious; it is because we have the experience, and we really are worried. I am really worried because I believe, again from experience, that in this particular field, and sticking to this point, the T.U.C. is about the only body (I was on the Donovan Commission and I do not like legislation in any way) who can keep the ring in matters of this kind, and whose authority is accepted by trade unions. If this provision undermines that, then what I am asking is that the Government should look very carefully at the implications of Clause 5. I do not think we have yet had a satisfactory answer on that aspect.
§ 7.22 p.m.
§ LORD HOY
May I express my thanks to the noble Earl for the trouble he has taken to reply? I am afraid he did not satisfy anyone on this side of the Committee, but we are grateful for the patient way in which he made his case. When I opened this debate I used the words, "I cannot think of a better recipe for internecine warfare and industrial unrest". Those were the words I used in connection with what I interpreted to be the proposal in this particular subsection. If anyone had had any doubt about these remarks, they had only to listen to the powerful speeches of my noble friends Lord Williamson and Lord Popplewell, and, indeed, that most powerful speech from my noble friend Lord Douglass. One could not listen to his speech without being moved by it. And if one feels that I have named only trade union leaders, let me also remind your Lordships that my noble friend Lord Sainsbury 233 put the point of view of the employer in this respect and said how essential it was not to have this Government proposal.
May I come first of all to the first challenge I got—and rightly so. I ought to have explained that part of the Amendment which says, "independent organisation of workers". The noble Earl, Lord Balfour, said that perhaps I might be able to explain what I meant. That is perfectly true, and the noble Earl had a right to ask me. Perhaps I may say straight away that the explanation was made by my noble friend Lord Popplewell. This is in fact to protect the trade unions which are not regarded as registered trade unions. Indeed, it does not matter which page of this particular Bill you turn to, you will always find an argument in support of the case you are at that moment making. No matter how varied the case is, any page of the Bill will give you a little support. So I do not claim any credit for turning to page 50, where at line 27 it says:(3) In this Act 'trade union' means an organisation of workers which is for the time being registered as a trade union under this Act".So it is that section which we have covered, and the other sections which in fact might not be registered. It may be that the noble Earl does not like the words suggested in the Amendment. I want to say to him that, unlike the Minister, I am not tied to the words on the Marshalled List. If, without raising any difficulties, he can find words which do exactly what we should like to do, then I, and I am certain my noble friends, would be absolutely delighted to fall in with any suggestion. I hope that satisfies the noble Earl.
Some difficulties are going to arise unless the Government do something about this particular proposal. My noble friend Lord Slater spoke to this (and no one has a better right to explain what happens in the coalfields of this country) together with my noble friend Lord Taylor of Mansfield. They were able to prove that, even inside the mining industry, as miners move from one job to another, then, although this may not happen very often it results in a change even of union membership, if they are going to be properly represented. This has all to be done within one union: and I was interested when the noble Earl replied. He made no reply at all 234 to the argument about splinter unions. He said it could not happen. With all due respect to the noble Earl, he is begging the fact that, if unions can be split, there are certain workers inside industry (I do not want to specify them in case one is then accused of encouraging people to do something; but it must be known to noble Lords in every part of the Committee that there are such sections in certain very large works in this country) who could take advantage of this situation to establish another union inside the workshop.
May I interrupt the noble Lord merely for clarification? He said that I remarked that splinter unions could not occur. I did not say that. What I said was that this clause, which the noble Lord and his friends say could encourage splinter unions, in fact would not encourage them.
§ LORD HOY
What the Amendment hopes to do is to put a stop to it happening. That is the sole purpose of moving the Amendment. What we are saying is that the Government proposal would do so. The noble Earl can shake his head as he likes, but I can tell him with all sincerity that in that situation you could have in very important workshops in this country a splinter union that could set up against the official union. It has been known to happen.
This is perfectly true, but this particular clause does not in fact cover that problem.
§ LORD HOY
All I am saying to the noble Earl is that in my view it makes it possible. I hope we shall get credit for the fact that we are not accusing the Government of introducing legislation which says, "As from the 21st day of October, splinter unions will now be formed". We are not saying that at all. What we are saying is that in our view, as a consequence of the proposal in this clause, that in fact can happen. The noble Earl cannot say it could not, because it could. What my noble friends were saying to-night was that this was so important a matter that they were making an appeal to your Lordships, not only on behalf of the trade union movement but of the employers in this country. They do not want to be faced with contending forces, perhaps three or four 235 sections, inside either a workshop or a yard. That they want to prevent at all costs. Indeed, if we are to have the development of that sort of thing, then the outlook for the British economy will be exceedingly bad.
Because of that factor my noble friends and myself were begging the Government at least to say, "Well, there may be something in your argument". It is not asking too much of them to say, "You have these fears, and you have expressed them with all sincerity; and we have had the views of trade unionists"—the greatest trade unionists in the world, if I may say so. Our trade unions are second to none. We have had the views of leading business people who feel exactly the same way. Surely, as a result of all this, it is not asking too much of the Government to say, "If you really feel that way then we will look at this between now and the Report stage. If we come to the conclusion that your argument is correct we can deal with it then, or at least you can retain the right to put it forward again on Report." For the Government simply to reject this out of hand places a tremendous onus of responsibility, not on my noble friends on this side of the Committee but on any noble Lord who goes into the Lobby to-night against this Amendment. I beg the noble Lord to think of this before he goes out of his way to reject this Amendment.
§ 7.31 p.m.
§ THE LORD CHANCELLOR
I hope noble Lords will forgive me if I intervene at this late stage in the debate, as my noble friend has put so well the Government case; but I think we must recognise that there is a degree of misunderstanding between the two sides of the Committee. It is in the desire to clarify the position as far as I am capable of doing so that I intervene. There are really two or three quite separate issues to be discussed. One of them is the Amendment and what will be its effect. My noble friend was quite right in saying that the Amendment, if passed, would have two effects: first, as I pointed out to the noble Lord, Lord Stow Hill—and I think that he was inclined at any rate at that moment to accept what I said—if you simply took out the words which are proposed to be left out, "as he may choose", it would give the employer the right to dictate what union the worker 236 was to join; because the clause reads— and I paraphrase—as between the employer and his worker, the worker has a right to join such union as he may choose. If you leave out that right of choice in the worker, and leave the rest in—and that is what at this stage the Amendment would do—it would leave the worker with only the right to join a union and leave it to his employer to say which.
The noble Lord, Lord Brown, says that that does not happen. In that he is at variance with the noble Lord, Lord Stow Hill, because that was the point of what the noble Lord, Lord Stow Hill, was appealing to me to prevent. It is not for me to say. The point is that one must make up one's mind on the effect of the Amendment as drafted, and there can be no doubt that its effect would be to enable an employer to dictate which union a worker was to join. Clearly, that cannot be the intention of the Opposition, and I am bound to say that they have not argued for that position.
The second effect of the Amendment, if passed, would be to allow the worker to join a union or an independent but unregistered organisation but without allowing him to choose which. That again cannot be right. Noble Lords opposite have not argued for that position. I realise the motives lying behind the insertion of that. The noble Lord, Lord Hoy, has just explained them, and the noble Lord, Lord Popplewell, explained them also. But, first of all, to deny the right of the worker to choose which organisation he is going to belong to, and then to insert the proposition that he can join an unregistered organisation, means he can be compelled to join a specific unregistered organisation. That is something which nobody in the Committee would desire.
The second thing I want to say about the Amendment is that it would have this peculiar effect. Much of the anxiety underlined by the series of speeches by noble Lords opposite has revolved round the proposition that we do not want splinter unions—and I will come back to that in a moment. The effect of passing the Amendment as proposed would be that splinter unions, as my noble friend was trying to explain, must actually be encouraged—and for this very good reason. We know there has been a lot 237 of talk in the responsible trade union movement of not registering. I hope that when we come to that part of the Bill we shall be able to put an end to that, because I hope that all responsible trade unions will register. But a newly-formed splinter union, of which noble Lords have expressed an apprehension, will, at any rate in many cases, not be a registered union because it will not, and cannot, conform with the requirements of Clause 63.
If that is so, inserting "independent unregistered organisation" and taking away the right of the employee as between his employer and himself to choose between responsible organisations will inevitably mean that there will be splinter unions. They will be unregistered, will not conform to Clause 63, and will be given an escape clause through the amended clause that the noble Lords propose. The last thing of which I am accusing noble Lords opposite is that they are trying to achieve that result. But very much earlier this afternoon the noble Lord, Lord Delacourt-Smith, said that I possibly knew a little more law than he did but that he had a great deal more trade union experience than I have had. I never try to "come it across" people by talking about law. I regard law as organised commonsense, and I try to explain it in those terms. What I am trying to say to the Committee is that, although they may not have intended it, this is the result which I think the Amendment will have. I want to say one more thing—but I think that this is the "commercial break" at which I ought to redeem my promise to the noble Lord, Lord Diamond, to give way. I will do so now, and ask his forgiveness for having kept him waiting.
§ LORD DIAMOND
The noble and learned Lord is most courteous, and I am grateful to him. I do not wish to add one word to the argument, because I do not think the argument could have been put better than it was put by my noble friend Lord Hoy and my noble friends behind me. But I want to seek the reasoning behind the statement of the effect of our Amendment which the noble and learned Lord has given. To simplify it, I want to assume that there were no such words as "independent organisation of workers" because that is a second 238 thought. I want to ask the noble and learned Lord about the simple statement that remains after you leave out these words: "the right to be a member of a trade union". Why does a simple statement like that mean "the right to be a member of such trade union only as the employer may choose"? I know that the noble and learned Lord made that point, that it is a fundamentally important one, and I understood it completely.
What I want is a little clarification. I can go with the noble and learned Lord if he says that if you merely say "a union" you do not say which party— because there are two parties to this right—has the right to nominate the union. You may say there is a difference of opinion: the employee may want to join union "A" and the employer may want him to join union "B". But what I cannot for the life of me understand is why the noble and learned Lord said that such words would mean that the choice is that of the employer.
§ LORD STOW HILL
Before the noble and learned Lord replies, may I intervene? I simply want to put the record right. If I may say so with respect, I entirely agree with the view implied by my noble friend Lord Diamond, as to what he thought the effect of the Amendment would be, and I do not accept that the view I formed of the effect is that which the noble and learned Lord thought I had formed. I had in fact formed the contrary view.
§ THE LORD CHANCELLOR
I accept the correction by the noble and learned Lord, Lord Stow Hill. I am sorry I misunderstood him. It was perhaps the genial and friendly nodding of his head which misled me. Of course I accept that he took the position that he did. The answer to the noble Lord. Lord Diamond, is that he has not read the words in the context in which they would appear if the Amendment were carried, because the words would then mean not what he read out but would read as follows:Every worker shall, as between himself and his employer, have the following rights, that is to say,—(a) the right to be a member of a trade union.239 Now the effect of that must be that the employer is discharging the obligation he will have under Section 5(2) if he recognises the right of a worker to join any trade union. If the worker is not allowed to select the trade union for himself, which is what the noble Lords' Amendment seeks to achieve, it follows that the employer will be discharging his obligation if in fact he respects the right only in respect of some union not of the worker's choice—because that is the inevitable result of the words which the noble Lord proposed. I am not accusing noble Lords of wanting to achieve that effect. I have tried to answer the noble Lord's question, and whether or not he agrees with my answer, and whether or not the noble and learned Lord, Lord Stow Hill, agrees with it, that is why I say it; and the argument can be either accepted or rejected.
§ LORD BROWN
If I may intervene briefly, I believe there is really the basis of agreement on this matter between the two sides of the Committee. If paragraph (a) of Clause 5(1) in the first place had read as follows:The employer may not dictate to the worker to which union he shall belong",I believe that gives the Government everything they want, and I have the feeling that it might be acceptable to my noble friends on the Front Bench here. It deals strictly with the intention of the clause instead of going into other issues which are dragged into the discussion on the clause. I beg the Government to consider this short version of the real meaning of that clause and to say that they will consider it. Then, I think we may prevail upon our noble friends on the Front Bench here to withdraw the Amendment.
§ THE LORD CHANCELLOR
Obviously I take careful note of what the noble Lord, Lord Brown, has said: it would be discourteous of me not to do so. May I issue this warning: The noble and learned Lord, Lord Stow Hill, who has very great experience of Parliament, said he would not draft on his feet; but that is what the noble Lord, Lord Brown, is asking me to do. That I am not going to do. All I am saying is that obviously I shall take careful note of what he said, but I do not wish to 240 offer any hope that Parliamentary draftsmanship is not more difficult than I believe at the moment he supposes it to be. But I myself am not without hope —that is why I trouble the Committee at this late stage—that on this particular Amendment noble Lords may not seek to go to a Division because, just as I have been trying to show my reasons for saying the Amendment would, in effect achieve a purpose which is totally different from that desired by noble Lords opposite, so I hope they will give me credit for saying that if the result of the clause as drafted would be what they wish, I should be the last person to support it. I should like noble Lords to clearly understand that whatever we want to do here, we do not wish to encourage splinter unions. They are not good things. We want responsible unions, exactly what the noble Lord, Lord Douglass of Cleveland, said he wanted. We want to support their authority and to see them impose their own discipline.
In a brief reply to the noble Lord, Lord Beaumont of Whitley, we do not think that the Bridlington rules, knowing their origin and date and having read them, could possibly be embodied in the Statute; but we do not want to see them abrogated in the smallest degree. On the contrary, we shall applaud and encourage their use.
§ LORD DOUGLASS OF CLEVELAND
If the noble and learned Lord acknowledges Lord Collison's point on the Bridlington agreement, it will help us to understand what the Government have in mind. Where there is a dispute as to which union a man should belong to, this would be settled by the disputes committee under the Bridlington agreement. It will have no power if the man has three choices of union. Please do not refer me to another clause, because we are discussing this one.
§ THE LORD CHANCELLOR
That is so, but I think it is fair to refer the noble Lord to the context in which this clause appears. We do not see that the fact of a man having a right as between himself and the employer can affect the efficacy of the Bridlington rules, because the effect of the Bridlington rules, whether or not they are applied in their full severity, is as follows. I do not want to take the rather far-fetched example, if 241 I may say so, given by the noble Lord, Lord Slater, of a road sweeper trying to join the National Union of Mineworkers, because that is not a likely concatenation of events. Take the case of a man who, because he is disgruntled, applies to join a union which the employer does not recognise for membership. If the Bridlington rules are efficacious—and I speak for myself and also, I think, for the Government when I say that we want them to be—the ruling of the T.U.C. is that the union shall not accept membership because it is not the appropriate union.
If that is so, Clause 63 (I disobey the noble Lord with trembling, but I think I am entitled to do so) says that the union, if it is really inappropriate, should have the power to reject. So the position is that the man has not an unrestricted choice to join any union of his selection, which is really the basis of the noble Lord's fears. What he has the right to do is to say to his employer, "Look, it is no business of yours if I belong to a union that you do not like, because the Act says I can choose my union." If, in fact, the full Act is looked at in the context of trade unionism, as the noble Lord recognises, and wants it to be— and I agree with him—the answer is that the man has not an unrestricted choice because he cannot do it. There may be cases when he has a valid choice. There are many cases where two unions do co-exist in one shop; and although I would agree with the noble Lord, Lord Sainsbury, that this is not an attractive proposition, it sometimes happens. In such cases there is, so far as I know, no legal means, consistent with human liberty, of refusing the individual worker the right to select between them, although it may be a highly undesirable thing which the union movement as a whole would wish to bring to an end.
The real truth about this—and this is the point at which I hope we can come to a friendly agreement about this Amendment—is that you cannot conveniently discuss in the context of this Amendment, for the reasons which my noble friend and I have been trying to give, what are really the main issues hi this dispute. I suggest that we could get on to them rather quickly, because the closed shop is an issue between us. It is, in my opinion, the first great issue of principle to be 242 decided in this Bill. A great deal of what we have been discussing in the last week has been "shadow boxing", but the closed shop is an issue. I hope that it will lead to a great debate. The agency shop, which has not been fully understood, demands a great debate, in order that one may explain what exactly is implied; and why we say that the charge that this Bill will encourage "splinter" unions disappears if you recognise the full implications of the agency shop. Registration is a subject for a great debate. These are great debates ahead of us. But I honestly think that if we play a game of cross-purposes about an Amendment which, with great respect, is badly drafted and contains two extremely bad stable companions—the unregistered organisation and the taking away of the right of choice—and then try to attribute to one another false motives, we shall not get much further. It is not because I wish to challenge noble Lords, or because I will not look, among other things, at what the noble Lord, Lord Brown, has said; or because I will not consider the arguments of substance and policy put by noble Lords opposite, that I think we might now be able to move on from this Amendment.
§ LORD HOY
May I say to the noble and learned Lord that we are grateful for what he has said? Sometimes he says things in such an irrational way as to provoke a response from this side of the Committee. When the noble and learned Lord says that he has now talked sufficiently to "get it into our heads", we do not look on it too kindly, and in selecting his words on another occasion he might well select better ones.
§ THE LORD CHANCELLOR
I have tried very hard indeed to do so but I thought that the head was the place where I was trying to get it.
§ LORD HOY
The noble and learned Lord does not have to tell me that he finds it difficult to select the appropriate words. I have known him for a number of years, and that is one of the things for which he has been famous; so he is living up to his reputation. I am sorry that the noble and learned Lord should have taken the view he has done of our Amendment. I am grateful to him because he accepts that we have moved it with the best intention. I repeat what 243 I said before. The noble and learned Lord has said he will look at the arguments we have produced, and at the case we have sought to make, just as we shall look at his case. In these circumstances, I would advise my noble friends that we might retain our right, as the Government have retained their right, and not divide to-night, but on the understanding that we retain our right to introduce an Amendment, if we feel it necessary, at the Report stage. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 7.55 p.m.
LORD DELACOURT-SMITHmoved Amendment No. 27:
Page 3, line 37, leave out paragraph (b).
§ The noble Lord said: I beg to move the Amendment standing in my name and that of my noble friends. A moment or two ago the noble and learned Lord the Lord Chancellor referred to one or two great debates which he expected would arise in the course of the proceedings on this Bill. I think that, in a sense, this Amendment may lead to one of those great debates, because it raises an issue which tends to provoke strong feelings in the parties who take part in controversy upon it. It is clear that many of the complexities, undesirable features and unnecessary complications about this Bill have their origin in the fact that the Government have chosen to state, at this early stage in the progress of the Bill, as one of the fundamental propositions, that the right not to be a trade unionist should have equal standing with the right to be a trade unionist. The fact that they have sought in this way to import into the Bill the principle of the statutory right not to be a trade unionist has led them into the very novel and—as I think we shall be able to show later in the proceedings—the undesirable device of an agency shop. And, of course, it has greatly complicated their handling of the closed shop issue. They have found it necessary, to a greater and greater extent as this Bill has proceeded through the Parliamentary process, to qualify the principle which they were originally enunciating in the subsection which I am moving to delete.
§ The assertion of a statutory right not to be a trade unionist is put forward on a 244 broader basis even than the right to be a trade unionist, because the statutory right which the Government have embodied is one not to belong to a trade union or an organisation of workers; save, of course, in so far as this right is qualified in later clauses in the Bill. In a sense, and in principle, they have sought to put the right not to be a trade unionist on a broader basis than the right to be a trade unionist. I urge the Government very seriously to consider the acceptance of this Amendment. The argument which they have put forward is the argument of the civil right that no individual should find himself under pressure to become a member of a trade union or an organisation of workers. I wish, first, to face fairly and squarely whether this attitude of the Government is justified on the broad grounds of civil liberty.
§ Trade unions cater for a section of the population which suffers from an inequality of bargaining power if it does not unite in a trade union. That is true historically and as a matter of observation. Before trade unions came into existence there is no doubt that the individual worker was at the mercy of his employer, for his need of a job was inevitably so much greater than the need of the employer for that particular worker. Experience has shown that if indeed the rights of the individual worker were to become any kind of a reality, they could be made so only by the workers banding themselves together in trade unions, to establish by their collective action the individual rights of each. This is the fundamental principle upon which the trade union movement has grown up, and it is an inescapable principle. Therefore trade unionists have always looked, I think rightly, with some scepticism at the best, and in some circumstances with hostility, at the individual who chose to assert that he would not be a trade unionist, although he never had any hesitation in accepting the benefits which the collective efforts of his fellows secured.
I think the Government really must tell us, in the debate on this Amendment, whether or not they want to promote collective bargaining. Do they regard collective bargaining as the best available course for handling industrial relations problems?—because if they do they must recognise that collective bargaining is quite inseparable from the existence of
strong trade unions. The Donovan Commission made this point on more than one occasion in their Report. Indeed, there is one paragraph in the Report, paragraph 599, in which they examined, not precisely in the terms which appear in the Government Bill but in very similar terms, the issue of whether the entitlement not to be a trade unionist was on a par with the entitlement to be a trade unionist. In paragraph 599 they said:
The two are not truly comparable. The former condition "—
that is, the right not to be a trade unionist—
is designed to frustrate the development of collective bargaining, which it is public policy to promote, whereas no such objection applies to the latter".
The Government are, at best, putting these two rights on an equal footing and indeed, as I have suggested earlier, giving rather more emphasis to the right not to be a trade unionist.
§ The second major point which must be made is that if we leave aside for the moment—and we shall have ample opportunity to discuss this later—what I will call the genuine conscientious objector, a man who on religious grounds declines or objects to joining a secular association, whatever it may be, and includes a trade union in that description, if we leave aside that very small group, I think noble Lords opposite ought to recognise that the non-unionist is not in any way a hero. A non-unionist is not a man who is willing courageously to stand on his own feet; he is not a man who stands up for some abstract principle of civil freedom. Let us make no bones about it, my Lords, the non-unionist— and as I say I am excluding the very tiny group of genuine conscientious objectors—is the man who wants the benefit of collective action without making his contribution to it.
§ I know it will be said from the Government side that by this ingenious idea of the agency shop they are proposing to take the financial advantage out of non-unionism. There are still, I think, grave difficulties and objections to the agency shop, to which I will come later on in our proceedings. But that really is not the whole of the story. It is not only the money of the non-unionist that the trade union movement needs. I say, quite genuinely, that the trade union movement 246 wants the participation of the non-unionist too. There are many examples which can be quoted of men who perhaps came into industry with prejudices, with misunderstandings about the trade union movement, who have entered a trade union with some degree of pressure, because it was the thing to do, because they were unpopular if they did not, possibly because it was a condition of employment, and who, having participated in the trade union movement, became enthusiasts. Example after example could be quoted of that.
§ Surely it is public policy not only that we should promote collective bargaining but that we should promote the greatest degree of participation by the workers in industry, in the regulation of the industry in which they work. That, so far as an ordinary worker is concerned, can be done in one way and in one way only, and that is by becoming a member of his trade union. I do not know a single trade union official or a single trade union representative who does not devote at any rate a part of his time to trying to stimulate more interest by his members in the way the trade union is run and in the work which he is doing. Trade unions do not want just the contributions, they do not want just the finance; they want the participation of the trade unionist, both from a practical point of view and from the point of view of principle.
§ But this argument is taking me too far; it is taking me further than is proper at this stage into the consideration of the agency shop. I want to conclude by saying that there is no valid ground, on civil liberty arguments, for the course which the Government are taking. They are quite inevitably by this course tending to weaken the trade union movement, because they are suggesting to the potential trade unionist that there is something quite as good, something quite as public-spirited, something quite as desirable in being a non-unionist as in being a member of a trade union. If that is indeed their case, then they cannot possibly hold that view and at the same time claim in this Bill to be either strengthening the trade unions or promoting as a matter of public policy the spread of collective bargaining. I beg to move.
§ VISCOUNT HANWORTH
My Lords, I do not suppose anything I can say 247 will affect those who support this Amendment, but I should like to nail my flag on this issue very firmly to the mast. I think this Amendment is utterly wrong when one considers the provisions of the Bill, which mean that nobody can escape without at least making a payment. Maybe in the past, when the unions were fighting for recognition, the closed shop practice of forcing all workers to join was justified; but to-day I am afraid that it represents a hang-over from a bygone age. In my view, it is important to-day —and I am going to put this quite frankly —that unions should be careful with the immense power which they have gained and the power which their shop floor members have. If we look at the recent disputes—and I hope that all your Lordships will have read about the latest results of the Ford dispute—we must realise that this is a real danger to-day. I would once more say—and I have already said it three times on this Bill— that I hope noble Lords will try to see these problems in to-day's context, and not once again in the context of the battles they fought 30 years ago.
§ 8.10 p.m.
§ LORD CONESFORD
The noble Lord, Lord Delacourt-Smith, always speaks with so much knowledge, persuasiveness and experience as a trade union leader as to command the ready attention of all those who study the subject, and I feel the greatest respect for the views he puts forward. In fact, some of the grounds he mentioned for joining a trade union are grounds that I ventured to put forward myself years ago when, from time to time, I used to be consulted in my constituency by men who faced some of these problems. If I differ from him, it is not from any lack of respect for anything he said or from any lack of recognition of the difficulty of this problem. It is because I think he overlooks the fact that vital questions of human liberty are fundamentally affected. This is shown not merely by the discussions that we have from time to time in Parliament, in the Press and in the country, but by the provisions in international documents. I am always astonished in this connection that there is scarcely ever any mention made of the Universal Declaration of Human Rights, which was approved by the General Assembly of the United 248 Nations on December 10, 1948, quite a long time ago.
The noble Lord complained about these two rights, to join and not to join a body, being mentioned as though they were of equal importance, in a single clause of this Bill. But that is precisely what is done in the Universal Declaration of Human Rights. May I remind the Committee of two provisions in the Universal Declaration? Let me give, first of all, the recognition of the right to be a trade unionist. That is to be found in Article 23, paragraph 4, in these words:Everyone has the right to form and to join trade unions for the protection of his interests.Incidentally, the Article is not brilliantly drafted: "everyone" is singular and "trade unions" is a plural, and this implies that everyone has the right to join two trade unions, and I rather doubt whether that was intended. But the Article clearly recognises the right of trade unionism. In an earlier Article, Article 20, 2, the Declaration says:No one may be compelled to belong to an association.Of course it may be said that nobody is compelled to enter industry, but I do not think that that is really an escape. There is a complete recognition in the Universal Declaration of the right not to belong to an association.
§ BARONESS GAITSKELL
Will the noble Lord go back to another Article (I forget which one), which says that a man has the right to withdraw his labour? Is not this what we are talking about?
§ LORD CONESFORD
No, I do not think it is. What we are talking about is a provision in this Bill which recognises the right not to belong to an association. What is stated in Article 20 of the Universal Declaration is that no one can be compelled to belong to an association. I am not denying for one moment any points of difficulty that this creates. Of course there are great problems; but they are not solved by ignoring a great human right recognised in the Universal Declaration of Human Rights by the United Nations.
I have never pretended—members of the Committee on all sides will bear me out—to have as much admiration for universal declarations of human rights as I have, in the tradition of English lawyers, 249 for the provision of remedies for the breach of human rights. I think that this country owes a great deal more to the existence of the Writ of Habeas Corpus and the Statutes of Habeas Corpus than it does to all the universal declaration of human rights. Nevertheless, when this country enters into a Universal Declaration and constantly expresses its respect for it, we simply cannot ignore the existence of this provision as though it were not there. Therefore I say that Her Majesty's Government, whatever may be the difficulties that are caused thereby, are quite right in recognising in this Bill that there is a right not to belong to a trade union, just as there is a right to belong to a trade union.
The consequent difficulties, of course, have to be worked out, and I am not denying this. But I beg trade union leaders of the type of the noble Lord who has moved this Amendment to realise that this is not put in wantonly by the Government because they do not care about any of the considerations to which the noble Lord has drawn attention, but because really great questions of human rights are involved. The noble Lord says that the trade unions will be very much weakened if this appears in the Statute. I honestly believe that he is wrong. I believe that the bulk of men will join trade unions and that, if they do, the strength of the unions will not be weakened by the fact that joining is not compulsory on everyone. I am trying not to deal in advance with clauses to which we have not come, but, since this is the first mention in the Bill that raises in my opinion one of the great principles, I would ask the noble Lord, Lord Delacourt-Smith, to believe that some of us, who are not at all anti-pathetic to trade unionism, yet think the Government right in recognising in their Bill what is already recognised in the Universal Declaration of Human Rights.
§ LORD DELACOURT-SMITH
Before the noble Lord sits down, I must ask him: does he see some of the provisions which the Government are putting forward covering the closed shop as consistent with the Declaration to which he is referring?
§ LORD BLYTON
One noble Lord said to-night that we are utterly wrong in putting down this Amendment; but in my opinion we are absolutely right. The main theme of the noble Viscount who spoke about our being utterly wrong was that he wants to reduce the power of the trade unions. Most certainly that is the reason for this subsection (1)(b)—
§ VISCOUNT HANWORTH
I must interrupt the noble Lord. I did not say that. I said they had increased power and they ought to consider the importance of using it wisely. I did not for one moment suggest that that power should be reduced. Furthermore, my own view is that it should be increased, because I think that this is the only way in which the members on the shop floor, which is the site of some of the trouble, can be brought into comprehensive industrial peace. So let that be quite clear.
§ LORD BLYTON
I apologise to the noble Viscount if I have taken it up incorrectly and I am glad to hear him say that he hopes to see trade union power increased. I hope to see him with us in the Lobby to-night, voting for this Amendment.
This particular clause is intended to reduce the power of the trade union movement. I listened to the noble Lord, Lord Conesford, talking about human liberty in the context of subsection (1)(b). If a man is not to join a union, why do you not say that he should not pay to the sick fund in the place in which he is in employment or that he may withdraw from the superannuation fund? The only body you are picking out in any industry is the trade union and not any other thing to which he may have objection. This is one of the major issues in this clause and one of the most controversial features in it. This clause is to outlaw the closed shop, either pre-entry or post-entry. It strikes a crippling blow at trade union membership and recruitment and wherever trade unions operate, and is in conflict with the Government's claim that the Bill strengthens the unions. It is certainly not in harmony with the Donovan Report and makes a mockery of the declared aim of strengthening the hands of the trade union official. Donovan records in his Report:No reasoned case has been put to us in evidence for prohibiting the closed shop, even by those who strongly object to it".251 The clause goes far beyond the closed shop. It gives to the non-unionist a legalistic virtue, and it does not give any right to a trade union workman as to whom he should associate with. This right of the trade unionist to choose whom he works with is of special significance in hazardous industries like mining and seafaring. What may the effect of this provision be? It will diminish deliberately the pressures on non-unionists and have the effect of destroying some unions like the Seamen's Union, Equity, the Musicians' Union, the Constructional Engineering Union and many others. The Government's case is that this Bill will reduce unofficial strikes by concentrating greater authority at the centre and within the official structure of the industry. The Bill certainly imposes on trade unions and officials the job of being industrial policemen, yet the Government, by this subsection (1) (b) are diminishing the only effective sanction they have of disciplining their members by expulsion from the union. By removing the force of this sanction, the Government are weakening those whom they claim to be strengthening.
The Bill as a whole places obligations on the trade unions and trade unionists, and we are entitled to know whether the non-unionist is to be exempt from them. Is the person who evades his responsibilities to his workmates by being a non-unionist to be given a reward by being free from the punitive provisions of this Bill? If that is so, as it appears to me, it will be a great incentive for him to respond to the provisions of Clause 5(1)(b). Those of us who have had long experience with non-unionists know that they conduct campaigns to prevent others joining; yet there is no sanction on them in conducting an unfair industrial practice. This subsection (1)(b) strikes at the pre-entry closed shop and most certainly creates huge problems for employers and trade unions.
I will take the shipping industry as an example. Agency shops under Clause 6 are no substitute for the closed shop, because the agency shop is subject to qualifications. The prohibition of the pre-entry closed shop is a most important matter to both sides of the shipping industry, and it is important to note that 252 their pre-entry closed shop was freely negotiated rather than negotiated by what the Conservatives might call "coercive trade union activity". Its introduction was preceded by several years of inter-union rivalry coupled with much industrial unrest. For fifty years in the shipping industry agreement has largely been abided by with the result that seamen's conditions have progressly improved and the number of days lost through official or unofficial strikes is very low indeed. Here, in this instance, without the intervention of the law, one of the Bill's main stated objectives—that is, the encouragement and development of free and responsible collective bargaining—has long been achieved within the shipping industry. Yet all this is now put in jeopardy by this particular clause which states that a worker may, by law, be a member of no trade union. The essential truth about this issue, especially in the shipping industry, is that the pre-entry closed shop is the most efficient method of providing stable employment and responsible conduct of industrial relations in a markedly casual industry.
It is therefore in the interests of both sides of this industry to maintain its present balance. This proposed legislation will have the effect of undermining the organisation capacity of the Seamen's Union, and the industry in the future will be all the poorer for it. Without the closed shop it will be difficult to recruit and maintain in membership a highly mobile work force. This industry attracts a temporary labour force which owes no particular loyalties to employers or union and no general loyalty to this industry, and any attempt to undermine this particular union's capacities in maintaining such a labour force as a coherent whole will undermine the whole industry's system of labour relations. This clause contains the proposal of outlawing the pre-entry closed shop and this will have the effect that I have stated. The proper conduct of industrial relations in shipping, as in the other industries, rests primarily on organisation. The effect of Clause 5(1)(b) will be to do away with the closed shop; it will destroy this essential element, and pave the way for the supremacy of employers' power in the determination of conditions and pay of the members of those unions affected.
253 In seafaring, stable industrial relations depend largely on the closed shop agreement. It not only aids the engagement of an efficient labour force, but contributes to the maintenance of national security, as well as to the prosperity of our national income. Any erosion of this union's authority could lead to a tremendous increase in unconstitutional workplace action by the men, with all the consequences for the nation at large that such activities would entail. There is no doubt that in other unions, and especially in the Seamen's Union, pre-entry closed shop agreements in shipping have been a major break-through in preventing industrial anarchy at sea.
The Government say that there must be freedom for the individual to join or not to join a trade union. This argument has gone on for many years. Yet I do not know of any employer who would dispute the fact that without the co-operation of the trade union movement he could not run his business efficiently. Trade unionism is now accepted as being part of industry, and it is essential for increased efficiency throughout the whole of industry. If this be the case, to try to eliminate the power of the trade unions must result in industrial chaos. It is rather fantastic that in a Bill which we are told is necessary to deal with unofficial strikes we should, for the first time, be asked to enshrine in the law the giving of equivalent status to the non-unionist and the trade unionist. To try and hold the scales of justice between these two is really an Alice in Wonderland attitude to take. It just cannot be done. You can never alter the attitude of a trade unionist to a non-unionist by law: there is no equation as between the two.
It is a fact of life that trade unions are established, and the authority of a trade union leader when he negotiates resides in the fact that he speaks for a number of people at a pit or factory, or at national level for his members. Yet here is a Bill which not only threatens all sorts of sanctions on people who break contracts, but makes it almost obligatory for a trade union official to get full agreement with all for whom he negotiates. Yet it makes it illegal for his trade union to try to get non-trade unionists into his union. I repeat that industry in Britain cannot function with 254 out responsible trade unionism. How can you negotiate agreements knowing that you cannot get them honoured, if people are to be encouraged not to join a trade union, and are to be completely outside the control of those who make the agreements? To give to non-unionists a status equivalent to that of trade unionists, without whom industry could not function, is to stand freedom on its head.
The serious thing about Clause 5(1)(b) is that it is elevating the whole basis of non-unionism at a time when trade unionism is accepted in nearly every industry. Industry depends on the cooperation that it can get from trade unions. Yet this clause will denude the representatives of trade unions of their personnel in industry by an Act of Parliament. I have said before what I think of non-unionists, who will take the rewards of collective bargaining—and I have never seen one who refused—but pay nothing towards the cost. In strong trade union areas they are regarded as people outside the pale. However, it is wrong under this Bill to coerce them to join a union, but if workmen refuse to work with them they can finish up in the Industrial Court.
This is the Government's conception, and no one should be surprised if industrial relations get into an awful mess in the future. If subsection (1)(b) is left in the Bill it means the end of pre-entry and post-entry closed shops, and the 100 per cent, trade union shop will be weakened. It puts the non-unionist in a privileged position that trade unionists do not have. It will inflict great strain among trade unionists in their everyday work. It is a clause intended to weaken the unions against the employers. For all these reasons, I support the deletion from this clause moved by my noble friends.
§ LORD BROWN
I rise to support the Amendment moved by my noble friend. I will not take long. I recognise the arguments used by the Government in support of the Bill in its present form. I am extremely anxious about the liberty of the individual. At an earlier stage, on another Amendment, one of my noble friends sought to use as an argument the fact that barristers were a closed shop, and the noble and learned Lord the Lord Chancellor—and we must 255 accept what he says—discarded that example. He gave grounds for doing so, and I accepted his reasoning. But that is not the only example which can be quoted. I should like to quote from section 161 of the Companies Act 1948. The rubric at the side says:Disqualifications for appointment as auditors.Then it says:A person shall not be disqualified for appointment as auditor of a company unless either—and then paragraph (b) provides an escape hatch, by which the Board of Trade may agree to the appointment without the person being a member of such a body under certain stated conditions. So that he either has to be a member of a specified body, or he has to be approved by the Board of Trade, if he is to be appointed an auditor to a public company. There may be other examples.
- (a) he is a member of a body of accountants established in the United Kingdom and for the time being recognised for the purposes of this provision by the Board of Trade; or "—
I quote this for this reason. In the event, people will not be forced to join a trade union if the Amendment is passed, because they can refrain from seeking that type of occupation. In contradistinction, one has to face the fact that there have been times when the Legislature has had to ask that absolute freedom of the individual should be given up in the interests of society. I think this Amendment seeks to curtail the freedom of the individual largely in order to create a situation in society where we might avoid a great deal of trouble. It is for these reasons, in spite of the fact that I recognise that this is a marginal curtailment of the freedom of the individual—it is not an absolute curtailment, because he need not take up that form of employment—that I would support the Amendment; and I would support my case by pointing to the fact that this House has in days gone by passed legislation which has exercised on the individual an analogous degree of limitation of freedom.
§ THE LORD CHANCELLOR
The noble Lord really must accept that whether he is dealing with barristers, or 256 graduates, or accountants, or doctors there is all the distinction in the world between belonging to your professional association, which up to a point is analogous to a trade union, and receiving the qualification for which you have to pass an examination. It is of course perfectly true that again and again Parliament has legislated, and I hope it will continue to legislate, to insist on professional qualifications before you can enter one of the established professions, but that does not mean that you have to join the union which is appropriate. That is a totally different type of association, and very often is exercised by a different body. Therefore there is no analogy at all.
§ LORD BROWN
I think I have the right of the matter here. I was a Minister at the Board of Trade for a period of five years, and it is a fact that at least two groups of people who were qualified in certain ways were excluded from the right to audit the accounts of a public company because they belonged to one association rather than to another. It is not merely a matter of the qualification; it is a question of being a member of, for example, the Institute of Chartered Accountants which qualifies one to serve as auditor of a public company. I am familiar with the administration of the law in this respect.
§ THE LORD CHANCELLOR
The noble Lord may be familiar with the administration of the law, but he overlooks the fact that the basis of it is that the qualifications of certain types of accountancy organisation are not accepted as adequate. The Board of Trade may be wrong for all I know in not accepting them, but the basis of a qualification remains totally different in type from membership of a trade union and, however long the noble Lord was at the Board of Trade, there is a distinction.
§ LORD BROWN
There is no distinction between saying to someone who is not a member of a particular trade union, "You may not work here", and saying to somebody who is not a member of a particular association of chartered accountants, "You may not do this job for this company". I am afraid the noble and learned Lord's comments on this matter are very unconvincing.
§ LORD BYERS
With great respect to the noble Lord, Lord Brown, for whom I have the greatest possible respect, this matter was dealt with in another place by my honourable friend, Mr. Emlyn Hooson, who made absolutely clear that there is a difference between a professional qualification and membership of an association. This has to be made absolutely clear; otherwise we confuse the whole of the argument. I ask the noble Lord to get this straight because it is a very important and fundamental point.
§ 8.44 p.m.
§ LORD BERNSTEIN
One sees how we are again getting into the legal question of the legal framework of this Bill.
§ LORD BERNSTEIN
Yes, I notice the comments by noble Lords opposite, and I apologise to noble Lords on the other side of the Committee. I do not think noble Lords on this side realise how dedicated the noble Lords on the other side are to the working people of this country and the 10 million people who are members of the trade unions.
American and German experience appears to show that a legal bar on the closed shop has very little effect on the factual position so far as it concerns trade unions. Of course the closed shop has produced problems for management here. I have suffered from them. But the benefits for negotiating with a 100 per cent, union shop are not to be overlooked. You cannot exorcise a right enjoyed by millions of people by Bell, Book and this Bill.
We are dealing with the provisions of Clause 5(1)(b) and I want to support the Amendment. I do not think this is compatible with the principles of the Bill which are liable to disrupt good industrial relations. I want to put a case, which is not invented, either to the noble and learned Lord the Lord Chancellor or to the noble Lord, Lord Windlesham, and ask what action under the Bill he considers could have been taken and against whom action could have been taken. This is a complicated question, and I ask the noble and learned Lord the Lord Chancellor or the noble Lord, Lord Windlesham, to bear with me because in my opinion it is a question of fundamental importance.
258 The case I refer to is about the lock-men in the Port of London. Six hundred and fifty men had it in their power to close the locks in the Port of London. For many years all labour had been organised by the Transport and General Workers' Union, and the Transport and General Workers' Union had, in cooperation with the employer, the Port of London Authority, managed to keep the peace and ensure the uninterrupted operation of the locks. In 1962 a disaffected minority, who considered that the Transport and General Workers' Union were not sufficiently aggressive, broke away and formed a breakaway union, the Union of Port Workers. There were about 30 members of that group, enough however to frustrate the Transport and General Workers' Union policy.
To cut a long story short—whether we should have a long story at this time of night or not I am not sure; it might be a good idea—both the Transport and General Workers' Union and the Port of London Authority made all sorts of attempts to get those 30 men back into the Transport and General Workers' Union. This was to no effect, and finally the representatives of the Transport and General Workers' Union, acting for their members, declared that if after a given date those 30 did not rejoin the Transport and General Workers' Union the Transport and General Workers' Union men would refuse to work alongside them.
Now note this. This meant that the Port of London Authority had no option but to dismiss the breakaway union. I should report that legal action against the Transport and General Workers' Union followed, but the legal aspects do not matter here. What matters is the situation in which the Transport and General Workers' Union would have found itself had the Bill we are discussing then been in force. It would seem that under this Bill the action by the Transport and General Workers' Union would have been an "unfair industrial practice", and this of course irrespective of Whether the Transport and General Workers' Union had registered as a trade union.
Am I right in saying that under this Bill the Industrial Court would have directed the Transport and General Workers' Union to refrain from further attempts to re-establish the closed shop, and could have assessed compensation against them in favour of the militant 259 minority? If, of course, the Transport and General Workers' Union were a registered union the compensation would be limited. In the second place, the Port of London Authority could also have committed an unfair industrial practice, and compensation could have been assessed against them in favour of the breakaway union.
Thirdly, the Transport and General Workers' Union, but not the employer, would have been exposed to the penalties for contempt of court in the event of disobeying the order of the court. This is because the union, but not the employer, can in this situation be subjected to an "order to refrain" which is a euphemism for an injunction. Fourthly, to avoid all this, the union would have had to induce the employer to enter into an agency shop agreement which, however, could have been upset at any time if any one of the militant minority had got the concurrence of one-fifth of the workers to initiate a ballot, and if as a result of the ballot the Transport and General Workers' Union had not succeeded in getting the majority of all—I repeat "all" —the workers involved to vote for the continuance of the agency shop. Alternatively, the union could, in co-operation with the Port of London Authority have tried to obtain an "approved closed shop agreement." Would the Minister care to answer my questions?
§ 8.49 p.m.
§ LORD WINDLESHAM
Yes, Members of the Committee will be glad to know that I come equipped, fortunately, to answer the general question which the noble Lord, Lord Bernstein, has placed before us: what happens if trade union members refuse to work with a non-unionist? That is a question which can be put and it is a question which can be answered. I will answer it in the technical terms in which the noble Lord has put it. Members of the Committee might like to look at it in Hansard to-morrow. Under Clause 31(3) it is an unfair industrial practice for any person, including a trade union or other organisation of workers or any official of such an organisation, to call, organise, procure or finance a strike, or any "irregular industrial action short of a strike", the definition of which is in Clause 31(4), or to threaten such action, if the action is intended to 260 induce an employer to infringe the rights conferred on the worker by Clause 5(1) (see Clause 31(3)(a)). An employer who is induced to dismiss the worker or otherwise penalise him for exercising his rights under Clause 5(1) would be liable under Clause 5(2). The employer who withstood the pressure to dismiss the worker could seek a restraining order or an award of compensation, or both, against the inducer under Clause 37.
§ LORD DONALDSON OF KINGS-BRIDGE
I have not intervened before in this Committee because I have not been altogether in line with some of my colleagues over some of the Amendments that I have been asked to support. However, I am wholeheartedly behind them with this Amendment. It is a particularly difficult Amendment; it is the essential one of Clause 5. If you say a man has the right to join a union, which we all agree upon, is it not restrictive not to say that he has the right not to join a union? From the ordinary liberal point of view the answer is clearly that he should have this negative right. The background of my thinking is that one believes in the rights of individuals and does not want to see people oppressing others.
It seems to me perfectly clear that the trade union movement was begun in a period when there were more men than jobs, and without the exercise of the closed shop they would never have had the strength to deal with this situation in an efficient way and make reasonable conditions for their men against their employers. It is also perfectly clear that when there are more jobs than men this situation is liable to go into reverse and may not work nearly so well. The position at the moment, as the result of either careful manipulation or perhaps historical carelessness on the part of the Tory Party, is that there are rapidly becoming more men than jobs, and this is the wrong moment to start threatening the very basis on which the trade union movement built itself up.
I feel one is liable to look at this subject look much from the point of view of the craft unions, which have become strong, and not look at it enough from the aspect about which I know, which is Equity and the Musicians' Union, and people like that. Equity is terribly worried about the situation of a travelling 261 impresario who engages a few employees to act some simple musical and then cannot pay them. Equity at the moment is able to prevent its members from taking a job with this man until he has paid the people to whom he owes money. Generally speaking, the Musicians' Union, though in a rather stronger position, are a similar case. I am the director of two London opera houses, and in both the Musicians' Union and Equity operate a closed shop entirely to our satisfaction. Donovan has made it perfectly clear that he thinks it would be wrong to interfere with this right. He thinks that the proper way to deal with it is to provide protection to those people who may suffer under it. That is the line we should take. People keep on saying that you must have some sensitivity to the background of the people on this side of the House—not mine, alas!; I cannot claim anything except a silver spoon. But the entire working class movement is very sensitive to this particular point. This Bill can work perfectly well without it.
What you are trying to do is put a background of law to enforce the sanctity of contract, with which all the trade unionists agree although they do not always agree with the enforcement of it, and the closed shop is not an integral part of this question. It is very foolish, when you consider that once this Bill is over and things have settled down somebody has to produce an act of statesmanship to get the people with whom we are working to work with us. Is it going to be easier or more difficult if you strike at what they regard as their very roots? I am in favour of the freedom of the individual, and I do not suppose the noble and learned Lord, who does not agree with my morals on other occasions, will agree with them here. But this is a moral judgment, and I believe right is on the side of the people who have had to use this method to get power. In so far as they use it too much, I think you could have my support and I think the support of my Party in curbing local injustice to individuals. To enforce the abolition of this existing situation, which is anomalous but means so much to these people, is really asking for trouble. I hope that noble Lords on the other side will think again.
I should like to draw the noble Lord's attention to an Amendment in the name of my noble friends and 262 myself dealing with Equity. It will be able to deal with the Seamen's Union as well, where there is clearly a case for a closed shop. I hope we shall pay particular attention to that Amendment, No. 54.
§ LORD DONALDSON OF KINGSBRIDGE
I always pay particular attention to any Amendment from the noble Lord.
§ BARONESS GAITSKELL
I shall be brief in supporting my noble friend because I do not wish to repeat all the arguments that have already been made. The freedom to join or not to join a union is not the same, and I believe that the Government has just a glimmering of the fact that it is not the same. I believe they are beginning to understand it. A man has the right to unemployment, but one would not like to promote that kind of right. The Americans, from whom we have taken so much of this legislation, understand that the right to join is not the same as the right not to join a union. They know that for a man to contribute to a charity in lieu of his trade union dues is just complete nonsense. It is the trade union which is doing the service, not the charity, so the fact that they have to say that a man will have to contribute to a charity makes nonsense of the whole matter.
Who are the employers going to negotiate with? I should like to know what numbers the Government have in mind when they say that a man has a right not to join a trade union. Is it one in ten? One in a hundred? One in ten thousand? It is the numbers that are going to make a difference to the whole business of this Bill. The Government keep on protesting that they want to strengthen the trade unions. But supposing a large number of people opt not to join a trade union: is that going to strengthen trade unions? Is that going to make for more industrial peace? Surely it is going to make for greater industrial unrest. It is going to increase tension, and the whole matter seems absolutely absurd. There is this sloppy use of the word "freedom". We are all in favour of freedom—there is nobody in this House who is not in favour of freedom. It is a question of how we organise our work, our industry, our lives generally; and this over-simplification—this woolly concept—is something 263 which really makes a political and legal hotch-potch of this Bill.
It is all right for election meetings and in an election manifesto to talk of freedom in this broad sense, but it is absolutely no good when we come to discuss this Bill really seriously, and come to discuss industrial relations seriously, to come forward with this vague idea that a man has a freedom not to join a union. I am not saying there are no abuses in trade union practice; or that we have no problem of anarchy among some of our workers. But are there no abuses among management, no abuses among employers, when we speak about these things? At all events, this freedom not to join a trade union will only make things worse and will not make things better in industrial relations. I support the Amendment.
§ LORD PLATT
It seems to me, as one who is not expert on these subjects, that the stronger argument at the present moment is on the side of the Opposition. I did not rise to say that, because I can register my thoughts on that if the Committee divides. But I should like a little clarification. First of all, what would be the effect of leaving out this paragraph? The fact that the worker has a right to be a member of a trade union surely does not mean that he has not the right to be not a member of a trade union, does it? Would the omission of this paragraph really achieve what the Opposition want? This is one point, which I suppose is a legal point, on which perhaps I am particularly dense, but it is one on which I should like a little clarification.
The other matter is that I should like to support the noble and learned Lord, the Lord Chancellor, when he says that because a man requires certain laid-down qualifications, and so on, he may have to be a member of a profession, and that in order to take certain jobs he may have to acquire higher qualifications or be a member of some body which demands that he has reached a higher status in the particular profession, this has nothing whatever to do with the closed-shop argument. I agree with the noble and learned Lord there; but I am not going to miss the opportunity of asking him whether this is not another argument for leaving the professions out of the trade union argument.
§ LORD STONHAM
May I also ask the noble Lord, Lord Windlesham, for clarification? He answered my noble friend Lord Bernstein on the spot, which was a most refreshing experience—to get an answer so quickly; or indeed at all. My preoccupation in considering the deletion of paragraph (b) of Clause 5(1) is the fact that it is in any case subject to Clause 16. In Clause 16(2) we read:Where an approved closed shop agreement is for the time being in force, the following provisions of this section shall have effect notwithstanding anything in section 5(1)(b) of this Act.So to a large extent the paragraph already has its effects weakened if it does not disappear. Then again, in the near future the noble Lord, Lord Drumalbyn, will be moving an Amendment to delete subsections (3) and (4) of this clause. So we shall not have this limiting factor on I subsection (1)(b). I am trying to understand this point, but I should be very grateful if the noble Lord, Lord Windlesham, when he eventually comes to reply, would kindly sort this out so that I might at last understand this rather tricky point.
§ 9.5 p.m.
§ LORD WINDLESHAM
Perhaps I might deal with that specific question, as it may be worrying other members of the Committee, before I reply generally, because I should like to reply in terms of general principle, as I think that that is what the debate is about. Clause 16 allows certain approved "closed shop" agreements, but these are subject to Schedule 1, in which five criteria are set out. So Clause 16 has to be read together with criteria in Schedule 1. Although it is true to say that my noble friend Lord Drumalbyn will be moving the deletion of subsections (3) and (4) of Clause 5, he is also moving Amendment, No. 53, for the reinsertion of a new clause after Clause 5, which contains subsections (3) and (4) within it plus additional material. He will be discussing that when we get there.
§ LORD TEVIOT
I apologise to the noble Lord who moved this Amendment because I did not listen to his speech. I was waiting to speak on the Motion, Whether the clause shall stand part?, but as this is the very crux of the matter—whether to belong or not to belong—I should like to throw a little different light on the matter, unless some 265 other noble Lord has brought this up before. Of course, I think one should have the right not to belong, but surely we should find the cause which is so often expressed by trade union leaders in disputes. So many industrial disputes would not have occurred if the cause had been found beforehand. In this case, too, if we find the cause why people do not want to belong to trade unions and look at the situation on those lines, we can then go on from them.
From my short experience of having been a trade union member, I know that the fellows who did not belong were the ones who just did not want to pay. They got into arrears. Perhaps a collector was not available—and that is a point I wish to come to—or they just dodged the collector. This went on ad infinitum and then they said, "What's in it for me?". Then they did not want to belong. If they belonged to a trade union from which they obtained certain benefits, as in the case of my own trade union—if you were involved in a motoring accident, for example, the union paid your solicitor's fees—these members might have been out of compliance by six or eight weeks (they had a family to support), and therefore the union were not going to pay out more, and they used to make the most stupid fuss imaginable.
Returning to the question of finding a cause, surely one must consider the question of paying. I know that it is in some ways unpopular for employers to deduct trade union contributions from workers' wages. I can see disadvantages against that, as well as advantages for it. I think that possibly in the code of practice it is laid down that people must pay their dues. For that reason the workers will probably want to belong, because the whole subject is dealt with piecemeal. It is important that it should be in the Bill, but I do not think it should have such a high priority. I came in to the Chamber just in time to hear the noble Lord, Lord Donaldson, and the noble Baroness, Lady Gaitskell, both of whom made excellent speeches.
On the question of charities, noble Lords opposite have said that the whole idea of paying to charities is ridiculous; but we have not really come to the point when we can discuss that. I am not going to say at this stage whether it is 266 possible, although in fact I think it is possible, but we must give more thought to it. Also we have heard of unions like Equity, and the professional unions, which I agree are important and have a lot to do with the membership of your Lordships' House. But they represent a small minority of the mass of workers, and I do not think that so far in our debates their interests have been fully discussed.
§ 9.9 p.m.
§ LORD COOPER OF STOCKTON HEATH
I should like to follow the noble Lord in his analysis of why we have this problem of non-unionism. By and large, it is because if the mass of people can get away with it they will take what they can get and pay nothing for it. I have always said that there is nothing greater than the ability of the British working man to find reasons for not paying his trade union contributions, and this provision is encouraging that situation. I want to be as fair as possible, and I know it is not easy if one is involved. But I am trying all the time to see how this legislation will do what it is intended to do, which is to help the trade unions. I was not particularly encouraged when the noble Lord, Lord Windlesham, gave us, quite properly, the legal situation, that if a trade union does anything to compel, or brings pressure to bear on, a person to pay trade union contributions, it will be liable to prosecution. That will not help the trade union movement.
I suppose one could go on for ever about the subject of freedom—and I think individual freedom is very important. I have been about long enough to understand that there is no such thing as absolute freedom. All freedom has to be conditioned and the person has to behave in such a manner, even when he is free (and I think we can do with a little more of this to-day) so as not to interfere with the freedom of someone else. If you have a factory employing 500 people, 490 of whom are paying trade union contributions, the 490 may say, "We are not going to work with these ten 'odd bods' who are not paying the trade union contribution." How do you assess freedom there? Is that unreasonable? What about the freedom of the 490 to say that they are not going to work with the ten because the ten refuse to pay towards the 267 collective effort that the majority of them have made?
Then when we hear the argument from the Liberal Benches; and really it is surprising—
§ LORD COOPER OF STOCKTON HEATH
Usually the Liberals oblige by dividing evenly and leaving the whole thing in doubt, but when they say that there is a case for the Seamen's Union, Equity or the professions, or if, as some one has said, you have been born with a silver spoon in your mouth, or you have been lucky and had the right training and passed your examinations, from then on you can exploit the community. Architects can fix a price, as also can surveyors—
§ LORD COOPER OF STOCKTON HEATH
Well, I have a great respect for the law so I do not want to go into that. But I must say that when the noble and learned Lord the Lord Chancellor quite properly said that only 80 per cent, of the law was organised, my feeling was that if I were operating that I should be able to work a pretty closed shop—indeed, I am sure they do; and quite right: I am not grumbling about it. As a matter of fact I am advocating it. But when people try to draw these fine distinctions between certain sections of the community, and because working people by dint of their own endeavours have achieved what they sought to achieve—and I think this is something about which England can be proud, with all our problems—do any of them understand what it means to keep a stable force of 10 million people stabilised in trade unions?
May I turn for a moment to my own union, with 850,000 members. The annual wastage amounts to 120.000. This calls for a terrific endeavour on the part of those concerned who are constantly recruiting just to keep level the membership figures. We are sensitive about this. It is very hard to assess the precise outcome, but we have made agreements (I am sorry about the repetition) on the closed shop basis, and in fact they have worked remarkably well. I agree there have been some abuses; and I agree with another noble Lord that we ought 268 not to be looking at the method as such, but that we ought to watch individual liberty and, as the Americans say, "put the checks in". There is a case for the checks. The situation should be such that an individual can go somewhere outside if he is not properly treated. That I go along with 100 per cent. But to suggest that certain things are allowed to be done but not by the trade unions, I think is a grave mistake. For that reason I support the Amendment.
§ 9.15 p.m.
§ LORD WINDLESHAM
About half way through the debate the noble Baroness, Lady Gaitskell, said one thing that I think struck the theme for this long debate on a very important Amendment; namely, that we were all in favour of freedom, and of course we are. It is very easy to say this. But we must not fool ourselves. Individual freedom is never easily achieved; it is something that has to be fought for. It is extremely easy to be aware of the immediate reasons for not making a change in any well-established practice, but it is necessary from time to time (especially, I suggest, when Parliament is considering legislation of this significance) to go back and consider the first principles.
The noble Lord, Lord Delacourt-Smith, in moving this Amendment, said that he saw no valid argument on grounds of civil liberties in favour of this provision in the Bill, and it is that assertion that I want to question. He was followed by the noble Viscount, Lord Hanworth, and the noble Lord, Lord Conesford, speaking with considerable first-hand experience of consumer interests and of international law. The noble Lord, Lord Conesford, in fact referred to the Universal Declaration of Human Rights. The noble Lord, Lord Blyton, spent a good deal of time in his closely argued speech discussing seamen, and the noble Lord, Lord Donaldson of Kingsbridge, referred to Actors' Equity and the Musicians' Union. In Clause 16, which was added in the course of the passage of the Bill through another place, certain approved closed shop agreements are possible, if they meet the criteria which are contained in Schedule 1, and it is employment of this sort, seafaring and Equity, which may well satisfy those criteria. It is not for me to say whether they will or will not, but they will, at any rate, have a 269 good chance of doing so, because those employments have certain special characteristics: the jobs are of short duration and the attachment to a particular employer is an exception rather than the rule. The noble Lord, Lord Donaldson, also I think, showed some sympathy for the fundamental arguments that there are here. He came down against this course in the end, saying that he had thought a lot about it. His opposition was partly on the grounds, it seems, of timing—that this was not the opportune time. Those of your Lordships who are familiar with Bentham's book of political fallacies will know that high on the list is the argument that the time is not ripe.
Let me move on to the central issue to which we have to address ourselves here. That is the argument of civil liberties. Why should personal injustice, which was described by the Royal Commission under Lord Donovan's chairmanship as substantial and without effective means of redress, be tolerated as a necessary part of the union solidarity and collective strength? Why should a person lose his job, and perhaps be prevented from earning his livelihood, just because he is not willing to join a union?
I said it was easy to talk in terms of generalisation, so let us look at just one or two examples of where there have been abuses. They are examples taken from the courts, because when people have a grievance which they feel strongly, it is natural that it should be taken up through the courts. One case concerned the Musicians' Union. The noble Lord, Lord Donaldson of Kingsbridge, said mat he was well satisfied with their closed shop agreement. In 1955, Mr. Bonsor, a professional musician and a member of the Musicians' Union all his working life, was expelled from his union because he fell into arrears with his subscription. The union operated a closed shop, and Bonsor could not be engaged in his usual occupation as a musician.
There was the famous case of Rookes v. Barnard. Mr. Rookes was a draughtsman employed by B.O.A.C. in 1964, and was subject to a closed shop agreement. He was a union member, but he resigned his union membership. This caused the union to serve a notice on B.O.A.C, that unless Mr. Rookes was dismissed it would call a strike, and would not go to arbitration, even though an arbitration agreement 270 was in force. The union was thus inducing breaches of contract and, as a result of 'the trade union's pressure, B.O.A.C. terminated Mr. Rookes' contract of service.
Then in 1957—and this is the last case I shall mention, but in a little more detail because it brings these cases to light— there was the case of Huntley v. Thornton. Mr. Huntley was a fitter and turner, and a member of the Hartlepools No. 5 brancn of the Amalgamated Engineering Union, as it was then called. The union called a 24-hour strike in consequence of a refusal by the employers of a wage increase. Mr. Huntley did not obey. He later became involved in a dispute with the union, and in particular with the officials of his local branch. During the long dispute which followed, both local and district levels of the union made recommendations for the expulsion of Mr. Huntley.
It so happened that the proper procedures were not followed in certain of these meetings. The Executive Council of the union refused to expel Huntley, but the committee of his local branch continued to treat him as no longer a member of the union. Whenever he sought employment in the district, local officials of the union either prevented him from obtaining work, or hounded him out of any job he succeeded in obtaining. This resulted in an action by Huntley for conspiracy against 13 officials of the union. It was held by Mr. Justice Harman that although two of the officials had pursued throughout what they conceived to be proper union objectives, 11 others had gone beyond this, thinking only of their own dignity and pursuing a grudge. In the face of the evidence—and there is more evidence than that, but there are three cases which are on public record already—there need to be powerful justifications for the closed shop, and for compulsory membership of trade unions. It seems to me that these justifications which have been put forward in the debate fall under three heads.
§ LORD SAINSBURY
I apologise for interrupting the noble Lord, and I am not questioning the facts he is giving us. However. I could equally, after adequate preparation, give an endless list of cases of employers who since I entered the business world many years ago have dismissed people for suspected union membership. But that does not prove that 271 all employers get up to practices of which nobody in this House would approve. I believe that it is equally wrong to quote abuses, which we all admit have happened in the past, as examples of the trade union movement.
§ LORD WINDLESHAM
I am trying to make a considered speech in reply to what has been a very good debate. Of course, the Bill will prevent conduct of the type which the noble Lord, Lord Sainsbury, has mentioned. There will be safeguards for people against victimisation, both by their employer and by the union. That is the purpose of the Bill. But let me move on, because there is a real issue of principle here, and the arguments can be put into a coherent shape for the benefit of the Committee at the end of a debate of this kind.
I was saying that there need to be powerful justifications, and that they seem to me to fall under three heads. The first is the argument advanced very reasonably by the noble Lord, Lord Delacourt-Smith, at the start of the debate, supported by the noble Lord, Lord Cooper of Stockton Heath, and others, that the collective strength of workpeople is so much greater than that of individuals and that that strength is necessary if their standard of living and their security of employment are to be achieved. This is a historical and a traditional argument of very great importance indeed, and we should be wrong to under-rate it. Secondly, there is the argument that all employees, and not only those who are union members, benefit from the efforts of trade union negotiators, and that their wages and conditions of employment would otherwise be affected. Therefore, it is only right that all employees should make their contribution towards the benefits which they obtain from trade union negotiation. The third argument, on which I think the noble Lord, Lord Brown, touched—and it is often advanced—is that of industrial convenience; that some employers are in favour of closed shop agreements, because in some circumstances they lead to greater stability. Those are the three main justifications.
But against those, is it really right to compel a man to join a union, or to remain a member of the union, because 272 otherwise he could not continue to work in a certain employment? I suggest that a union with a high degree of voluntary membership—95 per cent, or more—will in any event be in a stronger position than a union with 100 per cent, membership in which the last 5 per cent, have been forced in against their will. I hope that I am not being too dogmatic here. It is easy to fall victim to our own backgrounds, our own ideals, our own values in a discussion of this sort. It is very important to try to understand that there are two contrasting sets of arguments here.
Let me emphasise one point which I do not think has been raised in the debate. The Bill does not ban the closed shop—with the exception of those special agreements which will be allowed under Clause 16—without putting something in its place. The agency shop provisions recognise the fact that effective union organisation and constructive union leadership can be assisted by arrangements under which a union has exclusive bargaining rights in respect of certain employees in an undertaking, and under which it is financially supported by all those employees, with the exception of a handful who may have conscientious objections. Having listened to these arguments with considerable interest and attention, we believe that the agency shop proposals represent a fairly and carefully balanced compromise between the right of the individual to choose not to belong to a trade union against his will; between his social responsibilities as a member of a group whose standard of living may depend on the effectiveness of union negotiations; and between the need for stable and collective bargaining machinery, for the sake of good order in industrial relations.
It is these three factors which have been taken into account in reaching the solution—for that is what it is—of the agency shop. We have avoided extreme positions; we have avoided sacrificing! individual liberties on the altar of industrial convenience. We have not accepted that nothing can be done to improve the situation. We have not accepted that, because the closed shop has gone on for so long, it must be all right to continue. This clause is crucial to the Bill, and I am confident that it will be strongly supported.
§ LORD DELACOURT-SMITH
I am a little surprised at the speech of the noble Lord, because he addressed himself in very large part to the shortcomings as he saw them of the closed shop; and, indeed, I am bound to say that noble Lords on both sides of the Committee have tended to debate this Amendment as though it was an Amendment which introduced the closed shop. Of course, let us be quite clear that the Government's proposals, as they are before us at the moment in other parts of the Bill, envisage the continuance of the closed shop. In certain circumstances it will be a condition of employment that a man should be a member of the union, and if he is not a member of the union he must go.
They envisage in other parts that we should have this quite new provision whereby, in certain circumstances, a man who does not wish to join a union should be levied for the benefit of the union. I am not surprised that the noble Lord, Lord Conesford, gave a very broad hint that he finds these provisions to which I have just referred unpalatable, because, making the approach that he did, basing himself upon the absolute right as he quoted it from the International Declaration of Human Rights, I would have been surprised if he had taken another view of the provisions which we are going to consider later in the Bill.
But those provisions—the advantages and disadvantages of the Government's conception of the closed shop; the advantages and disadvantages of the Government's idea of the agency shop—are not before us in this Amendment. They are made necessary, perhaps, by the existence in the Bill of the provision which we are seeking to remove, but the provision which we are seeking to remove is one which should be removed, quite apart from these other provisions which the Government envisage later in the Bill's proceedings. For, after all, we are here asserting a positive right. We are balancing—and, as I suggested earlier, more than balancing—the statutory right to be a trade unionist with the statutory right not to be a trade unionist.
This is not a question of the Bill saying, "Nobody shall be compelled to be a trade unionist". That: would be a very different emphasis, and I think, if I may 274 say so, rather more consistent with some of the international declarations which bear on this subject. But that would be quite different from what is here. What is here, and what is objectionable in this particular wording which we are seeking to remove, is the exaltation of the right to be a non-unionist as though there were something admirable and to be defended in it. We do not everywhere have to balance a right to do something with a right not to do it. Everybody who comes within the Representation of the People Act has a right to vote. We do not say that a citizen has a right not to vote. Everybody has a right to go to public meetings. We do not assert the even more necessary (and some of us might think desirable) right not to go to public meetings. Why, then, have we, in this particular case, to balance the right to be a trade unionist not with the right to be free of compulsion to be a unionist but with the right not to be a unionist at all?
Some noble Lords speak in this Committee as though the industrial relations of this country were dominated by closed shops. On any showing, closed shops cover a minority of trade unionists. The majority of trade unionists are organised on a basis where there is no element of compulsion, no danger of losing one's job; and that situation has to be maintained by the constant recruiting pressure of trade unions. My noble friend Lord Cooper gave us, in the graphic figures he quoted, an idea of the immense effort that is expended by a trade union (and particularly a trade union catering for the categories of workers for which my noble friend's union caters) in keeping up membership strength by the recruiting process. I am bound to tell noble Lords that there cannot be the slightest doubt that, in the context of the maintenance of voluntary trade unionism (which many people have spoken of so approvingly) this exalting of the right to be a non-unionist as though it were as meritorious as being a trade unionist will be a positive impediment. Anybody who has had to be involved in the practical job of recruiting people into trade unions will be aware that this will be a ready argument in the mouths of those people whom, as my noble friend said, one goes to recruit and who always find ingenious 275 reasons for not paying their union contributions.
The noble Lord, Lord Windlesham, covered a number of points which were raised in the debate—and, if I may say so, some which had not—but he did not cover one which I want to press him to pronounce upon. Do the Government accept that it is in the public interest positively to promote collective bargaining? If so, do they accept that there must be trade unionism and strong trade unions as an essential ingredient in that collective bargaining; and do they not recognise that by framing their proposi
§ tion in this way—not, as I have said, in terms even of there being no compulsion on individuals, but on the assertion of the right to be a non-unionist as though it were as meritorious as to be a trade unionist—they are militating against trade union organisation, certainly on a voluntary basis, and so militating against the development of collective bargaining?
§ 9.39 p.m.
§ On Question, Whether the said Amendment (No. 27) shall be agreed to?
§ Their Lordships divided: Contents, 54; Not-Contents, 128.277
|Addison, V.||Donaldson of Kingsbridge, L.||Peddie, L.|
|Archibald, L.||Evans of Hungershall, L.||Phillips, Bs.|
|Ardwick, L.||Fiske, L.||Platt, L.|
|Bacon, Bs.||Gaitskell, Bs.||Rusholme, L.|
|Bernstein, L.||Gardiner, L.||Sainsbury, L.|
|Beswick, L.||Garnsworthy, L.||St. Davids, V.|
|Blackburn, L. Bp.||Hall, V.||Segal, L.|
|Blyton, L.||Hamnett, L.||Serota, Bs.|
|Brockway, L.||Hilton of Upton, L.||Shackleton, L.|
|Brown, L.||Hoy, L.||Sherfield, L.|
|Buckinghamshire, E.||Jacques, L.||Slater, L.|
|Burntwood, L.||Janner, L.||Stonham, L.|
|Champion, L.||Kennett, L.||Stow Hill, L.|
|Collison, L.||Lindgren, L.||Strabolgi, L. [Teller.]|
|Cooper of Stockton Heath, L.||Llewelyn-Davies of Hastoe, Bs.||Taylor of Mansfield, L.|
|Davies of Leek, L.||Maelor, L.||White, Bs.|
|Delacourt-Smith, L.||Mais, L.||Wright of Ashton under Lyne, L.|
|Diamond, L.||Milner of Leeds, L. [Teller.]||Wynne-Jones, L.|
|Aberdare, L.||Craigavon, V.||Goschen, V. [Teller.]|
|Ailwyn, L.||Cranbrook, E.||Gowrie, E.|
|Allerton, L.||Crathorne, L.||Gray, L.|
|Alport, L.||Cromartie, E.||Greenway, L.|
|Balerno, L.||Cullen of Ashbourne, L.||Grenfell, L.|
|Balfour, E.||Daventry, V.||Gridley, L.|
|Balfour of Inchrye, L.||De La Warr, E.||Hailes, L.|
|Barnby, L.||Denham, L.||Hailsham of St. Marylebone, L. (L. Chancellor.)|
|Barrington, V.||Drumalbyn, L.|
|Bathurst, E.||Dulverton, L.||Hankey, L.|
|Beauchamp, E.||Dundee, E.||Harcourt, V.|
|Belhaven and Stenton, L.||Dundonald, E.||Harvey of Tasburgh, L.|
|Belstead, L.||Ebbisham, L.||Hastings, L.|
|Berkeley, Bs.||Eccles, V.||Hatherton, L.|
|Bessborough, E.||Effingham, E.||Helsby, L.|
|Brabazon of Tara, L.||Elliot of Harwood, Bs.||Henley, L.|
|Bradford, E.||Erroll of Hale, L.||Hives, L.|
|Brecon, L.||Essex, E.||Hood, V.|
|Bridgeman, V.||Exeter, M.||Ilford, L.|
|Brooke of Cumnor, L.||Falkland, V.||Jellicoe, E. (L. Privy Seal.)|
|Brooke of Ystradfellte, Bs.||Falmouth, V.||Kemsley, V.|
|Buchan, E.||Ferrers, E.||Kilmany, L.|
|Byers, L.||Ferrier, L.||Lauderdale, E.|
|Clitheroe, L.||Fisher, L.||Lucas of Chilworth, L.|
|Clwyd, L.||Fortescue, E.||McCorquodale of Newton, L.|
|Coleridge, L.||Fraser of Lonsdale, L.||Margadale, L.|
|Colyton, L.||Gage, V.||Merthyr, L.|
|Conesford, L.||Gisborough, L.||Milverton, L.|
|Cottesloe, L.||Glasgow, E.||Monk Bretton, L.|
|Cowley, E.||Glendevon, L.||Mowbray and Stourton, L.|
|Napier and Ettrick, L.||Sandford, L.||Swaythling, L.|
|Nelson of Stafford, L.||Sandys, L.||Templemore, L.|
|O'Neill of the Maine, L.||Savile, L.||Teviot, L.|
|Pender, L.||Selkirk, E.||Teynham, L.|
|Radnor, E.||Selsdon, L.||Thomas, L.|
|Rankeillour, L.||Sempill, Ly.||Thorneycroft, L.|
|Redmayne, L.||Shaftesbury, E.||Tweedsmuir, L.|
|Rochdale, V.||Somers, L.||Tweedsmuir of Belhelvie, Bs.|
|Rochester, L.||Stamp, L.||Vivian, L.|
|St. Aldwyn, E. [Teller.]||Strathcarron, L.||Ward of Witley, V.|
|St. Helens, L.||Strathclyde, L.||Windlesham, L.|
|St. Just, L.||Strathcona and Mount Royal, L.||Wolverton, L.|
|St. Oswald, L.||Stratheden and Campbell, L.||Yarborough, E.|
On Question, Amendment agreed to.
§ 9.50 p.m.
LORD DRUMALBYN moved Amendment No. 28:
Page 3, line 37, leave out from first ("to") to ("16") in line 38 and insert ("sections (Modification of rights by agency shop agreement) and")
§ The noble Lord said: I would invite your Lordships to turn aside for a moment from considering the right not to join a trade union to a particular aspect of those cases in which the Bill provides that a man's freedom of choice will be to some extent modified, in which if he chooses not to join a particular union, or one of a particular group of unions, he will have to contribute either to the funds of the union or, in the case of an objection of conscience which would preclude him even from contributing to the union, to a charity.
§ Amendment No. 28 is a paving Amendment for the new Clause standing as Clause 53 in the Marshalled List to be introduced after Clause 5. The Amendments which go with this one are Amendments Nos. 40, 43, 48, 52, 53 and 75. I do not propose to discuss the clause at this stage, but if your Lordships agree I propose to discuss these other Amendments to the extent simply of indicating how the mechanics will affect them. I think it may also be for the convenience of your Lordships if I just explain what this new clause would do, without discussing it, because otherwise I do not think noble Lords will understand at all what I am trying to do. It will first of all reproduce in what we regard as an improved form subsections (3) and (4) of the clause we are now discussing, and it does that in subsections (1), (2) and (4) of the new clause. Secondly, it will introduce a new subsection, subsection (3), which is perfectly straightforward, and 278 thirdly it will introduce another subsection, subsection (5). It will also involve a linked Amendment No. 75, in Clause 10, at page 8, line 20.
§ The main purpose of the new provisions is to meet representations which have been made to my right honourable friend the Secretary of State to extend to employers' associations the power which is given in the Bill to employers individually to negotiate agency shop agreements with trade unions. It seems sensible and reasonable that closed-shop agreements which have been negotiated and entered into by an employers' association and are in existence before the Bill becomes operative should, like closed shop agreements between one employer and one or more trade unions, be capable of being readily transformed into an agency shop agreement. I would suggest that, whether or not noble Lords agree with the principles of the agency shop—and that is a matter which we can come to discuss later—it can hardly be denied that if such agreements are to exist then employers' associations, as well as individual employers, should have the right to negotiate them. Employers' associations would do this either on behalf of all the members of an association or on behalf of one or more employers specified in the agreement. At present, in the Bill, subsections (3) and (4) restrict the right of an individual not to belong to a trade union, and the words which I am moving to leave out pave the way for that restriction. The Amendment paves the way for the new clause.
§ I am not asking your Lordships to discuss the Amendments I have mentioned with this Amendment. I am merely pointing out that this Amendment paves the way for the Amendment to Clause 53, which is designed to replace subsections (3) and (4) of this clause and also involves Amendments Nos. 40, 52, and 75. That is why I am referring to 279 them now. I suggest to your Lordships that it would obviously be undesirable, even if it were in order—and, with all respect, I do not think it would be—to debate twice over the subject matters of subsections (3) and (4) and the new clause which is designed to replace them.
§ Perhaps I might say that, as your Lordships will probably have noticed from the Marshalled List, I had added my name to the names of the noble Lord, Lord Delacourt-Smith, and his noble friends, on Amendments Nos. 43 and 48, from which in due course he removed his name, suspecting no doubt, correctly, that my reason for adding my name to his Amendments was not quite the same as his. As I say, these are matters we can discuss when we come to the new clause. I would add, for the benefit of the noble Lord, Lord Beaumont of Whitley and of the right reverend Prelate the Bishop of Barnsley—I beg his pardon: Blackburn—that I do not know whether we shall reach the new clause to-night and it would be possible for him, if he so wished, to move his Amendment to subsection (3) with different lines on the page on the basis of a manuscript Amendment. This would be perfectly in order. Otherwise, if we do not reach the clause to-night, may I suggest that he might wish to put down the Amendment again so that it will appear on the Marshalled List as an Amendment to the new clause, should your Lordships agree with the proposals I now make. I beg to move.
§ LORD DELACOURT-SMITH
As the noble Lord has explained, this is a paving Amendment. We should prefer to reserve our observations on the substance until we reach the new clause itself. The noble Lord is right in saying that what the Government have done has produced some rather bizarre results on the Marshalled List and there appears to be a great deal of levity, which I fear is likely to be short-lived. We removed our names in the interests of the expediting of business and not in any way analogous to the desire of trade unionists not to work with non-unionists.
The only other observation that I would make to the noble Lord, who has put forward this Amendment with such a full explanation, is that we welcome any desire of the Government to make modifications in this Bill, although 280 naturally we are anxious about the direction in which they are being made. I am bound to say that in our consideration of the Bill, our task, already a difficult one, has been made more difficult by excessive hurry in the early stages of drafting.There was indeed a point at which, to mark our feeling on this, my noble friends considered whether we should not divide the House on this paving Amendment; but we reflected on the situation of the noble Lord, with this albatross of a Bill round his neck, and decided that we should not divide the House but agree to the paving Amendment.
§ 10.0 p.m.
§ LORD SHACKLETON
I do not know whether the noble Lord is going to comment, but in my Parliamentary experience this is one of the most astonishing performances by any Government. It is difficult enough for the Opposition to try to understand what has been going on in the minds of the Government, but how Members of your Lordships' House can possibly hope to understand a new clause, which either ought to have come in another place or ought to have been in the Bill when it appeared if the Government were not in such a hurry, I do not know. Furthermore, it becomes very difficult for us to judge what stages we are going to get to.
The noble Earl, Lord Jellicoe, with his great experience of the London Government Bill, may say that he did as wicked things as this on the London Government Bill, but he was better prepared, which was how he got that very contentious Bill through your Lordships' House. I do not know how long we are going to take on this. My noble friends are very co-operative. We do not know whether to be pleased at the signs of some slight movement in Government attitudes or even more confused. If the Government—and far be it from me to discourage them!—are seeking to modify this unsatisfactory Bill they are going to make it very difficult for us; and as my noble friend Lord Delacourt-Smith made clear, it shows all the signs of hasty drafting and of the failure to consult. It is absurd that on this particular matter they have not taken the mind of employers' organisations. I think that, with that protest, we will let 281 it go, unless the Leader of the House has some apologia he wants to make. He may sit there feeling reasonably satisfied, but I do not know what he has to be satisfied about.
§ LORD DRUMALBYN
I thank noble Lords for agreeing to this procedure. I think the noble Lord is quite entitled to make a little play with this kind of Amendment that takes place, but, my goodness! my Lords, he and I have shared some experiences at the receiving end in the 1945–1954 Parliament. The noble Lord, Lord Delacourt-Smith, was there too, when we had the most extraordinary confusion, and this is nothing whatever to it. He may remember a 282 little Bill called the Town and Country Planning Bill. But I will say no more.
§ LORD SHACKLETON
If I may say to the noble Lord, that was done in another place. This ought to have been done before it ever got here and it inevitably prolongs our proceedings. The noble Lord is being so amiable and I hope that this perhaps is a sign that the Government are going to be a little more willing to listen to the Opposition.
§ LORD BYERS
May I ask why the two Parties should be competing with one another to see which can get the greatest confusion into our Parliamentary Legislative Assembly?
§ 10.4 p.m.
THE LORD BISHOP OF BLACKBURN moved Amendment No. 29:
Page 3, line 38, leave out ("if he so desires") and insert ("on grounds of conscience").
§ The right reverend Prelate said: I move Amendment No. 29 standing in my name and those of the noble Lords, Lord Beaumont of Whitley and the Lord Rochester, and may I introduce myself correctly as the Bishop of Blackburn, not the Bishop of Barnsley. The Amendment arises from the fear expressed to me by a number of trade union officials with whom I met in my diocese concerning the possibility of many of their members opting out of trade union membership if the law gives them the right, and rather encourages them, so to do.
§ I want to say a word about the motive of fear which bedevils many situations in industry and elsewhere. Let me digress for a moment. The racial conflicts of which we are all aware, so often arise from the root cause of fear. I believe this to be especially true in South Africa, and I believe that if fear could be eliminated there, there would be a reasonable chance of finding a solution to their problems.
§ To return to our industrial field, the Government must surely be aware of the sincere and genuine fears that exist in the minds of those who are opposing various sections of this Bill. It is not only the fears that exist in the minds of some noble Lords in this House and Members in another place, but those which exist in the minds of hundreds of thousands of trade unionists throughout the country. They are really afraid.
§ Up to the point of Amendment No. 24, I had become increasingly disturbed in my mind and, I may also say, in my conscience that there was so little evidence of the Government making any serious move to allay the fears which are in the minds of so many people. To use a censure from the Bible, I find that they are being "stiff necked": and the New English Bible translates that as "stubborn". Or there was a gentleman called Pharoah, who continually hardened his heart against the children of Israel when they sought to be delivered from bondage. If the Government refuse to listen to any 284 of the pleas that are being made to them I only hope that they will not bring down a series of plagues and pestilences upon their heads.
§ Having said that, I am also bound to say to the representatives of the trade unions, and to noble Lords who sit opposite, that I believe that many of their fears are exaggerated—I do not say all of them—and sometimes misplaced. It is evident that many noble Lords have made up their minds, despite all that has been said to the contrary, that this Bill is "union bashing". The right honourable gentleman the Secretary of State and the leaders of the Government in this House have repeatedly declared that they want to strengthen the trade unions; that they believe in collective bargaining, in which strong and representative trade unions are necessary. What they seek, as the noble Lord, Lord Diamond, said, is responsible cooperation. This is what is needed.
§ I beg your Lordships' pardon for sketching in the background for what I want to say about this Amendment in what sounds rather like a Second Reading speech. It is not unrelated to the closed shop which we are not debating, and which I do not propose to deal with on this issue. I want to confine my remarks to the words "if he so desires", which I wish to omit and for which I want to substitute the words "on grounds of conscience". I have already referred to the fears that numbers could opt out of their union membership on personal grounds of whim or fancy. There is a member who has a row with his local secretary, in language which may not be so polite as that I am going to use, and says that he is going to leave the union to which he belongs. There could be an increase in the dues—and I often say to my friends in the trade union movement that if they are going to be effective they must put up their dues, and pay their officials proper wages as well. There may be some dissatisfaction at local level with union action.
§ There are all kinds of reasons why members will feel free under the terms of this clause to withdraw from membership. This can have the overall effect—this is what I am worried about, genuinely worried, and I want the Government 285 to be genuinely worried about it, too—of weakening the unions. The Government say that they want to strengthen the unions. I believe Mr. Carr has made a claim that he will be regarded as the great recruiting sergeant for the unions. I think noble Lords opposite will hope, almost against hope, that this will prove true.
If a man can insist upon his right to belong to a union another man could also have the right
to be a member of no trade union".
Do those words make sense, that you "be a member of no union "? What sort of language is this? We know what they are supposed to mean. The United Nations Declaration on Human Rights has been called in support of this contention, but I remind your Lordships that what that Declaration says is that a man has the right
not to be compelled to join a union
which to my mind has an entirely different emphasis. That brings me to my second point: that in accordance with this statement he should be allowed to withdraw from a union or not to join a union on grounds of conscience. This is a generally accepted practice already. It is included in the provisions of the Bill in regard to the agency shop. You might well ask: me, as a Prelate, to explain why a man's conscience should preclude him from union membership. My Lords, I cannot. I am not the guardian of other people's consciences. My conscience does not preclude me at the moment from being a paid up member of the General and Municipal Workers' Union, but I think I am entitled to say this. The noble Lord, Lord Cooper of Stockton Heath, the General Secretary, is not in the House at the moment. It might be that if this union decided to adopt a policy of non-co-operation I should want to review my position as a member of the union, because I passionately believe that what we must seek, on both sides, is to co-operate.
§ I understand that there are those who belong to a sect called Jehovah's Witnesses. I do not know whether there are any among your Lordships. Perhaps they would explain why they find it necessary to abstain from trade union 286 membership—I do not know why—on conscientious grounds. There may be others. I remind your Lordships that conscience has rightly been accepted in this country as a proper reason for refusal to take the Oath in your Lordships' House, to serve in the Armed Forces, and also to be a member of a trade union. There seems to be no problem about this. It is the omission of the words "if he so desires" that we are claiming, and also prepared to fight for, because it is fairly obvious that as it stands this clause could weaken the trade unions.
§ Let the Government stand by their word. We challenge the Government about this. They want to strengthen the unions. Let the trade unions so reform themselves that men and women will flock to join their ranks. I believe the unions will best reform themselves by learning first to discipline some of their more militant members, and by giving up the policy of obstruction which has been far too much to the front in their general policies, and by dedicating themselves to be the agents of co-operation. If we expect the trade unions to do this, then we must look for co-operation from the Government as well as from management.
§ 10.15 p.m.
§ LORD ROCHESTER
I should like to support this Amendment from my experience of everyday industrial life. Unlike the right reverend Prelate, I should like to try to relate the question briefly to the issue of the closed shop. In recent years a number of companies have entered freely into post-entry closed shop agreements with the unions as a part of their productivity bargain, or in some other way. I assure your Lordships that to the best of my knowledge these arrangements are, on the whole, operating smoothly and without affront to individual employees.
On this particular point I have considerable sympathy with some of the things that were being said earlier this evening by people who, like the noble Lord, Lord Williamson, have long experience as trade union leaders. In practice, the most telling point in favour of the retention of existing post-entry closed shop agreements, under the safeguards proposed in this Amendment, is that our present troubles are made worse by the apathy of so many trade union members. 287 What is needed is not less involvement in their part in union affairs, but a great deal more. To do away with our closed shop agreement will do nothing to improve matters in this respect, but rather the reverse. On the other hand, this Amendment may help if it is accepted.
The principle of freedom is upheld in the Amendment by ensuring that a man is not compelled to join a union if conscience forbids. This is a rather important point and distinguishes this Amendment from others seeking to retain closed shops without conditions. At the same time the Amendment suggests that a man is expected to face up to his responsibility by playing an active part in the affairs of his union. By accepting this Amendment we can at least go some way towards repairing what is in my mind an unfortunate omission in the Bill as it now stands, notwithstanding what the noble Lord, Lord Windlesham, was saying on this matter earlier.
Can the noble Lord, in the course of his argument, explain how this question is going to be resolved? Who is going to decide whether the question of conscience is at issue? Is the individual going to be allowed to say that his conscience tells him that he should not act in a certain way, without any inquiry at all? That is quite different from the question of conscience in respect of service in the Army, and so on.
§ LORD ROCHESTER
I see no particular difficulty on this point. As the right reverend Prelate has already said, this is the position as it now operates in industry to-day. I think all I want to say in closing is that nowhere in the Bill, as I read it, is the Government's professed desire to strengthen responsible trade unionism demonstrated by the explicit encouragement of union membership; and it is on this practical ground that I should like to support the Amendment and ask your Lordships to vote for it.
§ 10.21 p.m.
§ BARONESS WHITE
I am sure we have all listened with the very greatest interest to the debate, and particularly to the right reverend Prelate the Bishop of Blackburn. If I may perhaps enlighten 288 him, I do so with the utmost respect. If he can recall the Second Epistle to the Corinthians, Chapter VI, verse 14, he will remember that one there finds that believers are enjoined toBe … not unequally yoked … with unbelievers".I am quoting from Donovan, not from my own personal Biblical knowledge. This is said to be the ground on which the group of persons called Jehovah's Witnesses take exception to being compelled to join a trade union.
§ BARONESS WHITE
And Plymouth Brethren also—I am obliged. There may also be some other sects or groups who base their objections on similar scriptural authority. But I am sure that we are all aware that the number who object on this ground, or on comparable ground, must be very small indeed. As the noble Lord, Lord Rochester, rightly says, there has never in practice been any great difficulty over the genuine conscientious objector. Such a person is recognised best of all by his own workmates who know him intimately as a person. If such a one has genuine conscientious objections, in the sense in which we normally use the word "conscience", then I think it has been found in practice that arrangements are made for him. There has not in fact, as the right reverend Prelate and the noble Lord, Lord Rochester, remarked, and in practice been difficulty over a person of this kind.
The person for whom difficulties may arise is not the person who has a conscientious objection, in the sense in which we are using the word now, but the person who is anti-union. That is quite another matter. That is a matter, one might possibly say, of intellectual conviction; it is not really a question of conscience. I think one can draw a distinction between the two. We in the Labour Party have often had to do so: We have a "conscience" clause. The Conservatives may not worry about their consciences. We have often had very considerable debates as to whether a matter was a question of intellectual argument, in which one took one side or 289 the other—and one might take it very forcefully—or whether it was what we would call a deeply felt conscientious conviction. Most of us can recognise the difference between the two, although it may not be easy to define. Therefore we have considerable sympathy with the thought behind the Amendment moved by the right reverend Prelate.
Our difficulty, on the other hand, is in the totality of the approach; in other words, the desire to put this provision into subsection (1)(b), which we have already fully debated. We are by no means averse to some reference in the course of the Bill to conscience, but we feel, quite frankly, that it is very unfortunate that the reference should come in this particular place. Obviously, the aim of the Government is to elevate as a respectable principle the principle of not joining a union, and it is this that we bitterly resent. This has been made very clear by my noble friend Lord Delacourt-Smith, in particular in the last Amendment.
Perhaps I may be permitted to say how deeply I sympathise with the trade union leaders on our side of the Committee who have indicated, I think with great restraint, what trade unionism really means to them. Until I came to your Lordships' House, and was therefore non-employed (although doing a double shift at the moment), I was for over 20 years a member of the Transport and General Workers Union, and for a while I was also simultaneously a member of the National Union of Journalists. One was affiliated to the Labour Party and the other was not, and therefore I was entitled to dual membership. If I may be allowed a brief digression, as a member of the N.U.J. I first entered this noble building in the corner of the Press Gallery, working for the Manchester Evening News, and I may perhaps be allowed to say that I was trying to keep The Guardian alive and I am most happy that it is to celebrate its 150th birthday to-morrow. I hope your Lordships will pardon that digression.
From my own experience, not only as a trade union member but also in my constituency work as a Member of the other House for many years, I know what trade unionism means to those who are active 290 in it; and it is not just a question of paying dues. We feel that there is a fundamental misconception in this Bill that if you just pay the equivalent sum—whether it be the union subscription or to charity—you have discharged your obligations. That is not so; it is much more than that. I know many people who have given a great part of their lives and of their whole effort in working for their trade union. I am not now speaking just of the paid officials; there are a very small number of paid officials in any union. The great bulk of the work is done by people on a completely voluntary basis, and I feel that one of our great differences with the Government is that they seem entirely to overlook this. If they really felt this in the way we do they would not elevate as a principle in this subsection the right to be a member of no trade union. The right reverend Prelate rightly asks what that means—what are you joining, the "no trade union"?
It is largely for that reason, although we appreciate the analysis of the situation given by the right reverend prelate and by the noble Lord, Lord Rochester, and feel it is so much closer to the verities than the analysis of the Government, that we feel it is unfortunate that they should have sought to do this in this particular clause. We wish they had supported us in deleting paragraph (b) altogether. I am delighted that the right reverend Prelate did—he shows a very proper appreciation of the priorities in this matter. Therefore while we sympathise with the thought behind this Amendment we do not feel in the present context of the Bill, and particularly of this clause, that it is entirely satisfactory. I am quite sure which of the Government Front Bench the right reverend Prelate was casting as Pharaoh, but perhaps it is the noble Lord, Lord Windlesham, who is the Pharaoh pro tem. If we felt that he was prepared to meet us on the main principle we should be very much happier.
§ LORD BEAUMONT OF WHITLEY
I want to make just a brief intervention in response to the noble Baroness, Lady White, because it seems to me that she has made, with the exception of four or five comments which appeared to be slightly extraneous, an extraordinarily good speech on behalf of this Amendment. I cannot imagine that what the 291 Opposition are doing, because they are not able to get everything they want, is not to support the next best thing from their point of view. From our point of view it is not the next best thing, it is the best thing; but from their point of view it is certainly the next best thing, and I think this is exactly the place where it should be put in. As the noble Baroness said, the Government have elevated the idea of not joining a union to a principle; indeed, she herself admitted that in certain circumstances it ought to be a principle; she said in matters of real conscience ways are found now and always can be found.
This is the first serious Bill on the whole law affecting trade unions and industry to be passed for a very long time, and surely if we are doing this it is right that at this moment we should safeguard the rights of people who wish not to join trade unions on grounds of conscience, however misguided a lot of us may think them to be. That is what the Government are doing. But the Government are going further. The Government actually say that under this Bill there are to be four types of employees, workers, persons, worker persons, whatever you like to call them. There are, first of all, to be those who are members of trade unions. There are, secondly, those in agency shops who are not going to be members of trade unions but are going to have to pay equivalent fees to trade unions. There are, thirdly, those in agency shops who have conscientious objections and will pay equivalent contributions to charity. And there are, fourthly, those employees in non-agency shops who will not be members of trade unions merely because they exercise their right, and will not pay any fees to anybody.
What we are seeking to do in this Amendment—and I emphasise that this is not a Liberal Party Amendment; a number of my friends agree with the noble Lord, Lord Rochester, and myself and the right reverend Prelate the Bishop of Blackburn, but this is not a Party move from the Liberal Party—is to say that the right division is between those who are members of trade unions and those who have a real conscientious reason for opting out. I do not accept the question that was put to my noble friend Lord Rochester earlier on as to 292 how one decides whether someone is a conscientious objector or not. If I may say so, this is in the Government's Bill already, and it is up to them to answer that question. I have a touching faith in the Government. I am not personally prepared to answer this question. I am sure they will answer it.
While I entirely sympathise with the point of view put forward, I asked that question because I want to know, and I think everybody would want to know, how is this going to be enforced? Is the person going to be brought before the court or some tribunal? As you have it in the Bill, eventually in the Act, it would mean that it is to be enforceable. How is it going to be enforced—by word of mouth or what?
§ LORD BEAUMONT OF WHITLEY
I entirely agree; and that, no doubt, the Government is going to tell us, either on this clause or another clause, because they have it in already. It is up to them, and I am sure they have all the answers absolutely right. I think the historic situation of the Parties has been that the Conservative Party have always stood, rightly, basically, for the right of people not to belong to a union, not to be compelled to belong to a union—for what the Declaration of Human Rights says. But they have not always in the past been as helpful to the unions, as keen on strengthening the unions, as they are at the moment. I do not doubt the sincerity of the Secretary of State and other Government spokesmen at this moment in saying that they want to strengthen the unions. It think that is true; but on other occasions the Labour Party have had every reason to doubt that this tremendous sentiment has existed.
The Labour Party, on the other hand, have always known that when you are working from a position of weakness, as organised labour has for so long, the most important thing of all is that you should have solidarity and that you should be able, working against a greater force, to rally everyone to your side. I know this is a remark which will possibly raise slight jeers, but it is nevertheless true that the Liberal Party try to take the best from both Parties. We realise, with the Labour Party, the importance of strengthening the trade unions, and, with the 293 Conservative Party, the importance of freedom of conscience.
I think that this is a very good compromise, first suggested by the right reverend Prelate the Bishop of Blackburn in a Second Reading speech. Indeed, it is analogous to the question of conscientious objection in wartime. I do not want to press this too far, but the analogy lies in this point, that you have a situation where people do not want to do something, but whatever they do they cannot help receiving the benefits of what other people are doing. The man who remains in the country cannot help but receive the benefits from the men who go and fight. The man who works in industry, however much he objects, cannot help getting the benefit of the unions. Indeed, in both cases they are both quite happy to receive those benefits, but they have conscientious objections themselves.
In wartime we do not allow people to say that they just do not want to fight. But in this country we are very tender, and rightly, to the consciences of people who genuinely have some objection to fighting. We are extremely advanced in this country on this ground; it is one of the things I am most proud of. It seems to me that there is a very real analogy in industry here. The stakes are not so big, but the situation is very much the same. I should think that the Opposition ought to support us on this point. I think that the number of noble Lords who, on Second Reading, had very considerable reservations on the question of the closed shop—and I see at least two or three of them present—ought to support us on it. We are not trying to make a Party point. If the Government help us here we shall not say that this is a great Liberal victory. It would be a great victory for the right reverend Prelate, whose Amendment we support, and I think there is every reason for so doing.
§ 10.38 p.m.
§ LORD DAVIES OF LEEK
There is a brief point which I want to make, and I think it is accurate. My conscience is awkward, and I have not the right of my conscience to form an unregistered union. I would have been allowed not to join a union, but I also want the right of my conscience to form a new union, because I do not like any that they have so far. Have I the right of conscience to form 294 an unregistered union? I have not, according to the Bill. There are limitations right through the Bill on this. I only want to draw your Lordships' attention to this point.
THE LORD BISHOP OF BLACKBURN
Perhaps I might explain a theological point, that consciences have to be instructed and informed.
§ LORD DAVIES OF LEEK
In reply to the right reverend Prelate, that is exactly what I have done; instructed your Lordships that in this Bill there are unfair practices, and no one can belong to any union. The unregistered unions have not the same right of collective bargaining as the registered. That should have been known from the debates we have had in the last three or four days.
THE EARL OF ARRAN
I speak not as a member of the Liberal Party but as an individual. I thought at first that the right reverend Prelate's point was over-stressed. I thought he was using a sledge hammer to crack a nut. But then he used the word "conscience", and when ever that word is used I get hot under the collar and uneasy. I think I myself have a conscience—
THE EARL OF ARRAN
And people respect a conscience. I know that the noble Baroness, Lady White, has said, in a Party political way, that this is only an excuse to get out, but it is not. There are people who have individual consciences, who care about these matters.
§ BARONESS WHITE
I am afraid that I did not make myself clear. I intended to say that we fully recognise that there is a very small number of individuals who, on genuine, conscientious grounds, claim that they do not wish to join a union.
THE EARL OF ARRAN
But can she tell me how many people there are? If there is only one, is that not important? I am quite frightened of abstention on the ground of conscience. I think that people respect conscience, and they will believe in conscientious objections in wartime, or at any other time. If "conscience" is going to be struck out, then 295 we have a purely Party political issue—closed shop or non-closed shop? The right reverend Prelate had a point to make here and I ask your Lordships to take it very seriously, because it concerns our own individual circumstances. I should like to support the Amendment.
§ LORD SWAYTHLING
I had not intended to speak, but we are rather losing sight of what the Amendment means. If it is not passed, anybody who has a conscience and does not wish to join a union already has a right not to join, because the words in the Bill are, "if he so desires". Why are we talking so much about conscience? I understood the right reverend Prelate to say that he wanted the Amendment passed, not so much for the conscientious objector, 'but, so that there should not be so many objecting to joining a union as there would be if the Bill were left as it now stands.
§ 10.42 p.m.
§ LORD WINDLESHAM
I listened with interest to the speeches by the noble Lords, Lord Beaumont of Whitley and Lord Rochester, from the Liberal Benches, because I wanted to know what was the policy of the Liberal Party. The noble Lord, Lord Beaumont of Whitley, rather disappointed me by saying that this is not a Liberal Amendment, but he said later that the Liberal Party is taking the best from the proposals of other Parties. But I think in another place Mr. Hooson, speaking for the Liberal Party, strongly supported the agency shop agreement. There must be no misunderstanding about the fact that this Amendment precludes the agency shop agreement. We have already discussed very fully the general principles which have led the Government to conclude that workers should not be compelled to join a trade union against their wishes, and I argued fully on Amendment No. 27 that under the agency shop provisions we can at the same time secure the freedom of association of the individual and provide a proper degree of security and of financial support for the union.
§ LORD BEAUMONT OF WHITLEY
The noble Lord made a statement which he did not support, and I should like an explanation. He said that if we passed 296 this Amendment it would do away with the agency shop agreement. It seems to me that if we pass it, it will turn every place into an agency shop. Is that not true?
§ LORD WINDLESHAM
No. Could I try to explain this? We shall become more familiar with this as a Committee as we proceed throughout the night. What is said by this, and the other Amendments of a similar type—there are several on the Order Paper from the noble Lord and his friends—is that the right not to belong to a union should be on grounds of conscience only. The individual worker will have to establish conscientious grounds. The noble Lord, Lord Janner, asked how this was done, and in passing I could refer him, perhaps, to Clause 9(2), where the procedure is set out. What we say is that this is too narrow. It is not right to say to a man, "You must show you have conscientious grounds"—these very narrow grounds indeed—"before you can exercise your statutory right not to join a trade union."
I can give some examples. Let me give the Committee one now, perhaps—rather a good one. It is sometimes said that some of these closed shop agreements are rather old, that they have been going for some time, but let me refer to a new one. British Rail signed a closed shop agreement with three railway unions which came into effect on January 1, 1970. British Rail have a total work force of 207,515 workers. This agreement has a model conscience clause, and a procedure and a tribunal to which individuals can go. And how many workers out of 207,515 have established conscientious grounds for non-membership? The figure is five. It is a very small number indeed.
§ LORD WINDLESHAM
That is the number which have been established. There have been 131 applications and 23 appeals.
§ LORD WINDLESHAM
That is the number which have been established. Consider some of the consequences of this. I do not want to go into the detail 297 of cases, but take the example of a man who says, "I just do not want to be a member". Is that a ground of conscience, or not? He may not know why. It may be that he does not particularly feel he will get on with the union organisers. For whatever reason, do we have to pin him down and say precisely how we define conscience? Consider some of the consequences of the British Rail agreement. There is the man who, having been a train driver with 44 years' service, and is aged 61, was dismissed because he refused to join the relevant union under this agreement. We think that that is much too narrow; that it should be possible, as it is under the agency shop agreement, for somebody to pay his money to the union, and for him not to be a member without having to establish these grounds of conscience. I hope that has answered the question that was put to me by the noble Lord opposite.
THE LORD BISHOP OF BLACKBURN
I am sorry to interrupt again, but perhaps I may just remind the noble Lord that when this Amendment was put down it accepted the fact that there was an agency shop, and what I have heard from the noble Lord was that, although he was not going to move that particular Amendment at that time, yet it was there all the time. I never thought about this as being opposed to an agency shop. I think agency shops are very good things indeed. It is quite wrong for the noble Lord to say that this Amendment cuts out agency shops. Of course it does not.
§ LORD WINDLESHAM
The right reverend Prelate must prove that point. He asserts that it does not, I assert that it does. Will he please establish it?
THE LORD BISHOP OF BLACKBURN
It is here in the subsection, immediately before the words deleted by the Amendment:subject to subsections (3) and (4) of this Section.This is taking it for granted that there is going to be an agency shop.
§ LORD WINDLESHAM
I really do not think that is right. Perhaps it is something we can pursue at a later date. We 298 have studied this, and the official advisers have studied it, and there is no doubt that if it is said that the right not to join a trade union can be exercised only on grounds of conscience—the noble Lord is proposing to leave out some parts of Clause 5 later—that would be the effect. May I now move on to some of the other general arguments?
§ LORD GARDINER
Would the noble Lord tell us why? I cannot follow why this is inconsistent with the agency shop.
§ LORD WINDLESHAM
May I suggest that the noble and learned Lord studies the wording of Clause 5(1). It really makes the matter quite clear.
§ BARONESS WHITE
With great respect, at this late hour the noble Lord could perhaps be clearer. I agree that the words in the Bill have been somewhat altered by the paving Amendment, but I think that all of us who have been discussing the matter have been under the same impression as the right reverend Prelate: that the Amendment which he moved is subject to the provisions for both agency shops and, in Clause 16, closed shops. Both conditions provide for consciousness objection, payment to charity and all the rest. We were not under the impression that the Amendment now being discussed would alter that situation either for agency shops or for the closed shop.
§ LORD WINDLESHAM
The agency shop proposals, which are contained in a later part of the clause, presume that somebody can opt out from joining a union other than on grounds of conscience. That is essential to the whole of point of the agency shop device.
§ LORD DAVIES OF LEEK
From reading the Bill, we were under the impression that they could opt out, and that if they had any conscientious objection they could subscribe to charity. The matter is not clear to me. I apologise for that, but I am not a lawyer.
§ LORD WINDLESHAM
If the person has conscientious grounds for not joining he makes a payment to charity; if he wishes not to join the union on grounds other than of conscience he makes a payment to the union funds. That is the position.
299 There is a good deal more to say on this. One of the key issues is how "conscience" would be interpreted. Conscience is a word that means many different things to many different people. There may be workers who believe that their union is ineffective or understaffed or ill-equipped and that, as a result, it gives no worthwhile service. There may be others who think that their union emphasises the interests of one group to the detriment of other groups of its members. Others may prefer not to join because the union has not in the past kept to agreements it entered into, or because it is far too ready to engage in strike action; while some people take the opposite view.
May I develop this point? Are these to be regarded as grounds of conscience or not? It is difficult to believe that any of them would be regarded as a ground of conscience, yet that is the sort of consideration which probably leads people into the position that they may not wish to exercise their right to join a union. The Amendment, therefore, faces us with a dilemma. I should like to say, as did the noble Baroness opposite, that the Government have listened to this Amendment from the noble Lords, Lord Rochester, Lord Beaumont of Whitley, and the right reverend Prelate with interest and with sympathy; but there are these difficulties. Either we widen the idea of conscience, so that it encompasses a range of motives which most of us would regard as other than conscience, or we maintain the present rather restrictive and precise idea of "conscientious objection", of which I gave an example in the British Rail agreement earlier, and thereby limit the freedom of association of individuals.
Perhaps I might end by reminding the right reverend Prelate and the Committee that Queen Elizabeth I was loth to "make windows into men's souls" so long as she could feel sure that her subjects conformed to a reasonable and moderate pattern of church going. We should do well to do the same. Let us not pry too much into men's motives. Let us not
§ tell them what should or should not be a proper matter for their consciences; and let us remember all the time that under the Bill, where there are agency shop proposals, no-one can benefit from union negotiations without making a financial contribution. We regard this as a reasonable and moderate pattern of industrial relations for the future.
§ LORD DAVIES OF LEEK
In view of the fact that conscience is a still, small voice, and the right reverend Prelate has moved the Amendment in such eloquent terms, could the Government not accept this on2e at this late hour?
THE LORD BISHOP OF BLACKBURN
The Government themselves have not defined what is meant by "conscientious grounds", though they mention it in connection with the agency shop—they have plenty of opportunity to do so—and I should be very glad to offer the services of my fellow Prelates on this Bench to assist them if they so desire. We seem to be making rather heavy weather of this Amendment. My noble friend has not really answered any of the questions I addressed to him as to whether, from the Government's point of view, he wishes to encourage and strengthen trade unions. This is the basic point. I am thinking not only of people who want to join trade unions but of people who are members of trade unions; and if the words "if he so desires" are included, I believe that a very large number of people will opt out of the unions, because they are almost being encouraged to do so. I do not for one moment accept the noble Lord's statements about the agency shop. I believe in the agency shop; I believe most of all in the closed shop. But I am prepared to accept the agency shop if there are sufficient safeguards. It is really nonsense to say that this Amendment rules out the agency shop—it does not—and I only hope that your Lordships will support this Amendment.
§ 10.58 p.m.
§ On Question, Whether the said Amendment (No. 29) shall be agreed to?
§ Their Lordships divided: Contents, 43; Not-Contents, 119.301
|Ardwick, L.||Bernstein, L.||Brown, L.|
|Arran, E.||Beswick, L.||Burntwood, L.|
|Barrington, V.||Blackburn, L. Bp. [Teller.]||Byers, L.|
|Beaumont of Whitley, L.||Blyton, L.||Champion, L. [Teller.]|
|Brockway, L.||Collison, L.|
|Davies of Leek, L.||Hoy, L.||Sainsbury, L.|
|Delacourt-Smith, L.||Janner, L.||St. Davids, V.|
|Diamond, L.||Kennet, L.||Serota, Bs.|
|Donaldson of Kingsbridge, L.||Llewelyn-Davies of Hastoe, Bs.||Shackleton, L.|
|Fiske, L.||Mais, L.||Shepherd, L.|
|Gardiner, L.||Milner of Leeds, L.||Strabolgi, L.|
|Garnsworthy, L.||Phillips, Bs.||Swaythling, L.|
|Hamnett, L.||Platt, L.||White, Bs.|
|Henley, L.||Raglan, L.||Wynne-Jones, L.|
|Hilton of Upton, L.||Rochester, L.|
|Aberdare, L.||Eccles, V.||Massereene and Ferrard, V.|
|Abinger, L.||Effingham, E.||Merthyr, L.|
|Ailwyn, L.||Elliot of Harwood, Bs.||Milverton, L.|
|Allerton, L.||Erroll of Hale, L.||Monk of Bretton, L.|
|Amherst of Hackney, L.||Exeter, M.||Mowbray and Stourton, L.|
|Atholl, D.||Falkland, V.||Napier and Ettrick, L.|
|Balerno, L.||Falmouth, V.||Nelson of Stafford, L.|
|Balfour, E.||Ferrers, E.||O'Neill of the Maine, L.|
|Balfour of Inchrye, L.||Ferrier, L.||Pender, L.|
|Barnby, L.||Fisher, L.||Rankeillour, L.|
|Bathurst, E.||Fortescue, E.||Redesdale, L.|
|Beauchamp, E.||Fraser of Lonsdale, L.||Redmayne, L.|
|Belhaven and Stenton, L.||Gage, V.||Rochdale, V.|
|Belstead, L.||Gisborough, L.||St. Aldwyn, E.|
|Bessborough, E.||Glasgow, E.||St. Helens, L.|
|Brabazon of Tara, L.||Glendevon, L.||St Just, L.|
|Brecon, L.||Goschen, V. [Teller.]||St. Oswald, L.|
|Bridgeman, V.||Gowrie, E.||Sandford, L.|
|Brooke of Cumnor, L.||Gray, L.||Sandys, L.|
|Brooke of Ystradfellte, Bs.||Greenway, L.||Savile, L.|
|Buchan, E.||Grenfell, L.||Selkirk, E.|
|Burgh, L.||Gridley, L.||Selsdon, L.|
|Carrington, L.||Hailes, L.||Sempill, Ly.|
|Chesham, L.||Hailsham of St. Marylebone, L. (L. Chancellor.]||Shaftesbury, E.|
|Clitheroe, L.||Somers, L.|
|Coleridge, L.||Harcourt, V.||Stamp, L.|
|Colville of Culross, V.||Harvey of Tasburgh, L.||Strathcarron, L.|
|Colyton, L.||Hastings, L.||Stratheona and Mount Royal, L.|
|Conesford, L.||Hives, L.|
|Cottesloe, L.||Hood, V.||Stratheden and Campbell, L.|
|Cowley, E.||Ilford, L.||Templemore, L.|
|Cranbrook, E.||Inglewood, L.||Teviot, L.|
|Crathorne, L.||Jellicoe, E. (L. Privy Seal.)||Thomas, L.|
|Cromartie, E.||Kemsley, V.||Thorneycroft, L.|
|Cullen of Ashbourne, L.||Kilmany, L.||Tweedsmuir, L.|
|Daventry, V.||Latymer, L.||Tweedsmuir of Belhelvie, Bs.|
|Denham, L. [Teller.]||Lauderdale, E.||Vivian, L.|
|Drumalbyn, L.||Lothian, M.||Ward of Whitley, V.|
|Dudley, E.||McCorquodale of Newton, L.||Windlesham, L.|
|Dundee, E.||Margadale, L.||Yarborough, E.|
On Question, Amendment agreed to.
§ 11.10 p.m.
LORD DELACOURT-SMITH moved Amendment No. 32:
Page 4, line 3, leave out from ("union") to end of line 7.
§ The noble Lord said: This is the first of three Amendments which we have put down to elucidate, or to amplify (as the case may be), the provisions of subsection (1)(c) of the clause. The spokesmen for the Government have emphasised again and again that in this subsection 302 we are dealing with the relationship of the individual worker with his employer in the context of trade union membership and activity. It is a little surprising to find in this context the words which this Amendment proposes to leave out. It appears to us that these references to particular types of union activity go somewhat beyond the aspects of trade union activity on the part of an individual in which we would expect his employer to be interested. These are internal activities of the trade union. They are regulated by the rules and practice of the union. This is not a field in which the employer could necessarily expect to be 303 well informed. It is not clear, for example, how an employer is able to judge that activities undertaken with a view to becoming an official of the union are legitimate or normal in the case of that union. We should therefore welcome some discussion of, and some further clarification from the Government about, precisely what they have in mind in inserting this phraseology in the subsection. I beg to move.
§ THE LORD CHANCELLOR
In the absence of my noble friend, perhaps the Committee will forgive me if I reply to the noble Lord. He has proposed in this Amendment and in the one which follows two changes in the wording of subsection (1)(c), which I suspect would have exactly the opposite effect to that which he intends. The noble Lord has asked a question rather than given a reason for an Amendment. I make no complaint, except that it is a disconcerting habit and I hoped that the noble Lord would have given me notice.
He has asked a question which bears no obvious relation to the Amendment, but the question betrayed, I think, quite clearly that he had not really grasped what paragraph (c) is about. Paragraph (c) is basically about the right to trade union activities during working hours, and only during working hours, although as I go on you will see that there are some exceptions, because the key words in paragraph (c) are "at any appropriate time". The right given by paragraph (c) is to engage in certain activities, which are defined more exactly in the rest of the paragraph, "at any appropriate time". If you want to see what "any appropriate time" is you go to subsection (6) of the clause which says—In this section "appropriate time", in relation to a worker taking part in any activities of a trade union, means time which either—Subsection (b) goes on to define working hours in relation to a worker. It is not necessary to go into that matter—the definition is there to be read if it becomes material.
- (a) is outside his working hours, or
- (b) is a time within his working hours at which, in accordance with arrangements agreed with, or consent given by or on behalf of, his employer …"
The key to paragraph (c) lies in the fact that it defines union activities which may be done in working hours or by 304 agreement with the employer. That is the restriction—and it is the only restriction. It has not anything to do with normal trade union activities or the right to engage in them outside working hours, nor does it impose limits on the number of activities which can take place with the employer's agreement.
Having given that explanation of the existing draft, I now look at the Amendments. The one now under discussion, Amendment No. 32, concerns Clause 5, page 4, line 3, to leave out from "union" to the end of line 7. At any rate, looking at the clause you see that it leaves out the words from "including" to "official" in paragraph (c). The effect of that would be to leave it in doubt whether the worker had a right to seek appointment or election or to hold office in his union during working hours, and the effect would therefore be to restrict rather than increase the scope for trade union activities but make it legitimate for a worker to take part in other activities, whatever other activities derive from union membership, during working hours. That is the other Amendment which I will speak to when it is moved.
I find it difficult to understand what this Amendment was designed to achieve, since the noble Lord did not explain what it was designed to achieve. The only effect of it is to leave it in doubt whether the worker had a right to seek appointment or election or to hold office in his union during working hours. The only answer I can give to the noble Lord's question, because his speech in moving the Amendment was confined solely to the question as to what the clause meant, is the explanation which I have given. I hope that it has given the noble Lord the information he wanted, although I am not quite sure what information he did want. All that is clear in my mind is that the Amendment as such is misconceived and would achieve the opposite result from what is intended.
§ LORD DAVIES OF LEEK
I should like to ask a question, in view of the fact that we have now included in the discussion the words that it is proposed to leave out. Would a person who was a member of a union have the right at the "appropriate time" of taking a ballot box in for balloting during working hours, for him to act as the union official? If so, can that be made clear?
§ THE LORD CHANCELLOR
Whether carrying in or out a ballot box is one of the union's activities must depend on the actual rules of the union concerned. It may be wholly outside the union's activities. Some unions object violently to ballot boxes. Without knowing the rules of the union, I could not say whether it was a union activity. But this allows union activities, as a right, including the use of ballot boxes, outside working hours or by agreement with the employer. If you look at subsection (6), it is the "outside … working hours" and the agreement with the employer which provide the general right to engage in union activities. The restriction is that you do not have the same right to engage in union activities during working hours as you do outside. But the ballot box point could not be answered unless one knew what the union rules were, and whether the act in question was part of the union's activities.
§ LORD BROWN
I would suggest to my noble friends on the Front Bench that they should withdraw this Amendment. The parts which they seek to delete do not in any way limit the activities of members of trade unions while at work. They extend them by exemplification and by specific suggestions. I have visited a lot of firms during the last five years in connection with exports, and invariably the subject of labour relations has come up. I have said to chief executives of these medium and small-sized firms: "How many of your convenors and shop stewards have an office, a telephone and a little clerical help?" This often produced a sense of outrage in some of these people. Many managers, superintendents and foremen in small and medium plants still live in the backwoods. The idea that they should help people in elections or procedures by which they might become shop stewards, or to accept appointment or election, and to help them to hold office, is still foreign to many managers in factories.
The clause, as it stands, makes it quite clear that they have the right to do so. This is most valuable. It will prevent the backwoodsmen in the managerial field in industry from exercising some of these ridiculous restraints on these people, sometimes depriving them of due promotion simply because they have been told to stand for election to help their fellows in the factory. The reason for the 306 Amendment, which cuts out this rather valuable citation of their rights, completely puzzles me. It does not limit the right of a trade union member from taking part in the activities of the union. It does not condition that right. It exemplifies it somewhat, and makes quite specific certain additional rights. Why are we proposing this Amendment? I should like to hear, with the noble and learned Lord the Lord Chancellor, what the purpose of the Amendment is, because I have read it backwards and forwards—and I am not without experience in these matters—and cannot understand it. I think the clause as it stands is helpful.
§ LORD DONALDSON OF KINGS-BRIDGE
I am as puzzled as my noble friend, Lord Brown, but for rather different reasons. It seems that the definition in subsection (6) is that men can do anything they like in their own time—we know that already—and they may do anything to which the employer agrees in his time. We know that also. What is the point of making a list of things they can do if the employer agrees? I do not understand it at all.
§ THE LORD CHANCELLOR
I shall try very hard to make the noble Lord understand. If the employer agrees, they can do it during working hours.
§ LORD DONALDSON OF KINGS-BRIDGE
They can anyway without anything in this Bill. The Lord Chancellor has added nothing to my intelligence on this matter.
§ THE LORD CHANCELLOR
I cannot add to the noble Lord's intelligence, but I do hope to add to his information. I can only do that which is within human possibility. The point ' is that the worker has an absolute right to engage in trade union activities, and if the employer tries, as some backwoodsman might (I have often heard that phrase used in a different connection but in this connection it is used of a backwoodsman who is an employer), to deter him, he incurs the penalties, if that is the right word, of subsection (2). That is why the clause is there. It gives the worker a right to enforce against his employer which he would not otherwise have. The right is extended in the way in which the noble Lord, Lord Brown, tried to I explain to his colleagues, to clarify the situation during working hours.
§ LORD BERNSTEIN
I also am confused. I have had experience of trade union officials and shop stewards, but I cannot see the purpose of this clause. There must be a reason for it. I am sure that it was not done out of the goodness of heart of noble Lords opposite to help trade unions. If trade union officials told the Government that this would not help them, would they allow this Amendment to go through?
§ THE LORD CHANCELLOR
The answer to that is distinctly "No" because, as the noble Lord, Lord Brown, said, no one has explained what the Amendment is for. As the noble Lord, Lord Bernstein, has excluded the only reason which is the true one—that it is done entirely out of the goodness of our hearts—I cannot expect to explain it to him again.
§ LORD BERNSTEIN
Are we to assume that if Lord Brown says something the Government accept it without question? If we can know that it might help us in future debates. The wordings of this Amendment seems to be innocuous. A great number of trade union officials have been given the opportunity of a wider horizon and have become members of management. They have not become gamekeepers turned poachers, they have not sold the pan, but they have extended themselves and become better people in management as well as in unions. They have been offered opportunities of membership on hospital boards and the like. What is the point of the clause if it is not to restrict them? I cannot believe that the reason for the clause is to help a shop steward against his employer. I do not know of a case in which an employer would refuse a shop steward the opportunity of development in doing his trade union work. Lord Brown says he knows of some, but I do not know any enlightened employers who would do that.
§ LORD DELACOURT-SMITH
I am sorry if I disconcert the noble and learned Lord the Lord Chancellor by doing again what he chided me for doing on an earlier subsection—inviting him, or one of his noble colleagues, to say precisely what the Bill which the Government put forward means, and what the words to which we have drawn attention 308 add to what is already in the subsection. I must confess that I do not see that the words in our Amendment add anything to the earlier part of the clause which talks about the right to take part in the activities of a trade union. It was to try to elicit what they were intended to add to the earlier part of the subsection that we put down this Amendment. I am sure that the noble and learned Lord is well acquainted with the practice of putting down Amendments for precisely this purpose; it is not really a unique course to take. I am extremely grateful to the noble and learned Lord for pointing out to me the phrase, "at any appropriate time". I had noticed that it was in the subsection, and have also noted the point which has been made by one of my noble friends: that in this Bill members of trade unions are given the right to pursue trade union activity in their own time. I suppose one must be grateful for small mercies.
In the light of what has been said, I should like to make the observation that I trust that the points which my noble friend Lord Brown made about the advisability and suitability of giving facilities for carrying on trade union work, which would have been more appropriate than the words to which our Amendment draws attention, should be incorporated in the code of practice. Having said that, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 11.32 p.m.
LORD DELACOURT-SMITH moved Amendment No. 33:
Page 4, line 3, after ("union") insert ("and any other activities which derive from trade union membership").
§ The noble Lord said: This Amendment adds something to the clause as it now stands. It will be well within the knowledge of noble Lords that there arise from normal and direct trade union activity many associated activities, carried on in a variety of associations. Trades councils are frequently invited to nominate representatives to serve on public bodies, local employment committees, youth employment committees, national insurance local advisory committees, disablement advisory committees, war pensions committees, national insurance appeals tribunals, national assistance 309 appeals tribunals, health executive councils, hospital management committees, and other committees in the hospital service. Or they are invited to nominate people to serve on a range of educational bodies: school governors, governors of technical colleges, and so forth. In addition, there are a wide range of voluntary organisations which welcome the interest of trades councils and their cooperation, often expressed in the invitation to representatives of trades councils to become members of committees of these voluntary organisations. Last, but by no means least, there are local authorities which in many towns invite the trades councils to nominate individuals to serve on local authority committees.
§ I am sure that all of us would agree that this work is extremely valuable. So is the fact that people who have mainly gained their experience of public work in the trade union movement are invited to become magistrates. There is a wide range of activity which people enter by virtue of having gained trade union experience, or enjoying the confidence of their trade union colleagues. It would be desirable, in view of the provisions already made in this subsection, to seek to give some kind of guarantee that these broader activities will also be brought within the framework proposed in this subsection, that employers will know that Parliament, through this Bill, has given a measure of support to those employees who wish to serve the community in this way. I think this is an Amendment which will commend itself to noble Lords in all parts of the Committee, and I trust that the Government will be able to accept it in wording or, if not in wording, in substance.
§ 11.35 p.m.
§ THE LORD CHANCELLOR
I hope not to seem curt, because I am afraid there is relatively little to be said about this Amendment. Indeed, I had at one time rather anticipated that it might have been taken with the last one. The last one would have left out certain legitimate trade union activities from those which are authorised by the clause. This one inserts a new but wholly undefined band of activities; and even having heard what the noble Lord, Lord Delacourt-Smith, says about them, I really do not think they are capable of definition in language 310 as vague as this. I should be the first to accept that there are a great many things which a good employer will do for responsible trade unionists who happen to hold office in a trade union and who are also in his employment. These activities may include membership of the House of Commons; they may include a great number of extra-curricula activities, which I certainly spend some of my time trying to induce employers to make time for—the one which is in my mind most is membership of the Bench.
I do not think it can go into the Bill at this stage as one of the fundamental rights of the worker to do this in the employer's time. If he does it outside working hours, he does not, for the reason which the noble Lord, Lord Donaldson of Kingsbridge, gave in the last Amendment, need the words in the clause at all. If he does it during working hours he can do it with the employer's good will, of course, but he cannot enforce it against the employer if the clause remains as drafted. I do not think I could recommend the Committee to put into an enforceable clause something so incapable of definition as the enormous range of activities which the noble Lord, Lord Delacourt-Smith, adumbrated, but of which I think he only gave examples. I think there would be no end to it.
We are, after all, trying to pass a law and, with the best will in the world—and I hope the noble Lord will accept a certain expression of good will on my part towards the spirit underlying the Amendment—I would say to him that I do not know what is in my right honourable friend's mind as put into the code of industrial practice, and I deliberately did not take a very great part in that part of the debate, until we got on to the relationship between the code of industrial practice and the courts. It may be that this type of activity could find a place in that code, or it may not. But what I feel absolutely confident of is that it does not find a place in the Bill. Although I do, as I say, accompany my refusal with an expression of good will, I do not think I can do more.
§ LORD DAVIES OF LEEK
Does this not show the difficulty in which both Houses of Parliament have now got themselves because the canvas is so broad? We interpret the rights of trade union 311 members under Clause 5; and then we go on to this provision "at any appropriate time", and only then with the consent of the employer. The fact is that it has always been more or less like this, but we are now getting so involved with verbiage that we are putting the clock back on matters which have been won by custom. There are times when custom is more powerful than the law. Local government members here who have had to get a list of rural footpaths, and things like that, may have started looking up custom, and they will have found that sometimes unwritten laws and procedures which are accepted are more powerful than phrases written with a quill pen. This is the tragedy. We seem now to be expanding everything to try to get all things dealing with trade unions into a book. The strength of the British Constitution has been that it is unwritten and depends more or less on the profound commonsense of the British people. Here we seem to be messing about, undermining the traditional building up of commonsense.
§ LORD DELACOURT-SMITH
I understand the difficulty of the noble and learned Lord the Lord Chancellor in accepting the words of this Amendment. I hope that for his part he will understand and accept my difficulty. It is twofold: first, we do not yet know whether the code of practice will refer to this point with which the noble and learned Lord has expressed goodwill. If it does not, and if this subsection remains un-amended, I believe some difficulty can arise, because I am sure the noble and learned Lord will appreciate that when an effort is made to set out matters so comprehensively in regard to trade union activities within the place of work there inevitably arises some degree of prejudice against any items which are not included. This is one of my anxieties about the Bill, that in fact where it defines rights it may encourage people who are so minded to say that they are not only obliged to give the rights, but that they are virtually precluded from going beyond the rights for trade unionists which are specified in the Bill. If the noble and learned Lord will go a little further —and I think I am only really asking him to express his goodwill in different language—and if he will say that he will 312 seek means to meet the substance of this Amendment, either in the Bill at a subsequent stage or in the code of practice, I am sure my noble friends will be well satisfied.
§ THE LORD CHANCELLOR
I do not think the noble Lord is asking me to go much beyond what I have already said, but he may be going further than I can go because I really cannot say what my right honourable friend can put in the Bill in the light of what I have put to the noble Lord. My own expertise is an expertise of law and I cannot go further. Of course I will promise the noble Lord that I will draw the attention of my right honourable friend to what the noble Lord has said, and I am sure he will go as far as he possibly can, but my expertise is exhausted. My impression is that it cannot be done, but I will certainly draw it to the attention of my right honourable friend.
§ LORD DELACOURT-SMITH
If the noble and learned Lord will add to that the expression of his own influential sympathy my colleagues and I will be quite content. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
LORD DELACOURT-SMITH moved Amendment No. 34:
Page 4, line 7, at end insert ("which is designated in and subject to the rules of the union").
The noble Lord said: These words come at the end of what will be, if they are included, a rather unmanageable sentence. The words
which is designated in and subject to the rules of the union
are intended to refer to "office" and it would appear to us to be appropriate to include them. It will be within the knowledge of noble Lords that there are rules in a number of unions which deal with the eligibility for holding office. I do not wish at this stage to enter into a discussion on the appropriateness or desirability of such rules, but will merely say that some trade unions have thought it appropriate to incorporate them, and: what, if this Bill becomes an Act in its present form, will be the fate of some of these rules I should not like to say. However, at the moment they exist and we feel it appropriate that the reference in the I subsection as it stands should be qualified
by words which emphasise the necessity for the office to which there is reference being that "which is designated in and subject to the rules of the union." I beg to move.
§ LORD WINDLESHAM
The Committee will be grateful for that explanation, because I think other noble Lords will have shared with me difficulty in understanding what this Amendment was aimed at. The noble Lord has said that there might be cases where office holders might not be eligible to hold that office. The wording of the Bill as it stands is confined to workers holding legitimate office in the union, and we have found it rather difficult to envisage a situation where a worker might hold office which was neither "designated in" nor "subject to the rules of the union." If the office was not designated in the official rules of the union, presumably it would not then be an official office, and if that was the case the protection afforded in this part of Clause 5 would not be given to the holder. So I think that the doubts the noble Lord has expressed are met by the Bill as it is drafted.
§ LORD DELACOURT-SMITH
I think we shall want to look at this point in the light of what has been said. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
THE CHAIRMAN OF COMMITTEES
In calling Amendment No. 35, may I point out to the Committee that if No. 35 is agreed to I shall not be able to call Nos. 36 to 42 inclusive.
§ 11.47 p.m.
LORD DELACOURT-SMITH moved Amendment No. 35:
Page 4, line 8, leave out from ("be") to the end of line 23 and insert ("an implied term of every contract of employment that neither the employer nor any person acting on the employer's behalf shall do anything for the purpose of—
For the purposes of this section "trade union" includes any organisation of employees whether or not it is a registered trade union within the meaning of this Act but excludes any such organisation if it is under the domination or control of any employer or group of employers or of one or more employers' associations").
§ The noble Lord said: This is a fairly lengthy Amendment, but I think it is largely self-explanatory. Indeed, I feel that very little is required from me by way of further explanation of it. It does, of course, in the final paragraph, seek to modify the definition of "trade union" which is included in another Part of the Bill. It may be that this will be one of the points to which noble Lords opposite will wish to refer, but I am at this stage prepared to leave the matter on the basis of the wording as set out on the Marshalled List. I beg to move.
This Amendment, as the noble Lord said, is a fairly substantial Amendment, and it would be wrong if we were to assume from the brevity of the noble Lord's remarks that the Amendment was of equally little consequence—because, of course, it is not. The Amendment would make it a term of the contract of employment that an employee should have the right to be a member of a union and the right to refuse to be a member of any organisation of workers which is under the control or domination of the employer; and, of course, in this it would reduce the scope of the general rights and protections which at the moment are given in Clause 5. The noble Lord will not be surprised if I tell him that the Amendment does not exactly commend itself to the Government, for a variety of reasons.
First, as I say, under this Amendment the right to belong to a union would become a term of every contract of employment, and is therefore restricted to employees only: there would be no protection for those who work under a contract for services. As it stands, Clause 5(2) protects workers against discrimination on account of their being a member of a trade union, and the right to trade union membership is protected, and any attempt by the employer to discriminate, penalise or dismiss a person would be an unfair industrial practice. But the proposed Amendment would provide this protection only where a contract of employment existed. The employer, if the 315 Amendment were accepted, would be free not to engage a worker on the grounds that he was not a union member because, at the time when he applied for the job, no contract of employment existed, and the worker would therefore be unprotected by this Amendment. It would allow the continuation of the pre-entry closed shop. While many may argue that in certain circumstances this is desirable, the Government do not believe that it is necessary or right for the employment of workers to be determined solely on the grounds of whether or not, at the time of the application for a job, the person in question was a member of a particular trade union. But of course unions are free, and indeed they will be free, to discuss with the management the level of skills which they believe should be obtained in that place of work, and to encourage the management not to engage people who do not come up to this particular level.
We do not believe that it is right or appropriate that the opportunity of employment should depend on whether the appropriate union card is held by the applicant when he applies for a job. Again, the Amendment would encourage an employer who wishes to keep union members out of his establishment to do so, because he is much more likely to wish to refuse employment on account of the fact that a person is a member rather than to penalise him should he have entered his employment. This would therefore encourage him to take care not to let union members into his employment.
The Amendment is also in conflict with the general principle of the Bill that matters relating to industrial relations should be excluded from the ordinary courts, and should be confined to the industrial tribunals and the National Industrial Relations Court. Infringement of the right to belong to a union under this Amendment would give rise to an action for breach of contract which, like other breach of contract actions, would be determined in the ordinary courts.
The last paragraph of the Amendment is intended to secure rights for those who belong to unregistered organisations of workers. It is inherent in the Bill as a whole that it is to registered trade unions that the advantages, benefits and 316 privileges given in this Bill should accrue; and not necessarily to organisations which have not gone to the state of registration. As we have seen before, the criteria for registration are not great, but it is believed that the purpose of registration is to show that unions who have been prepared to go to this extent have rules which are fair to their members, just and democratic. I think it is entirely reasonable that individual members of the community should be given some assurance as to the standards maintained by such organisations in the conduct of their affairs. For all these reasons, this Amendment is not acceptable as it stands.
§ LORD DELACOURT-SM1TH
In this Amendment we have sought to cover a number of points, and we recognised that they would not commend themselves to the Government. But in view of the way in which the Bill has developed, with the new clauses which are before us, I think it would be more appropriate for us to return at later stages of the Bill to the points which are covered in this Amendment. In those circumstances, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 11.56 p.m.
LORD DELACOURT-SMITH moved Amendment No. 39:
Page 4, line 14, after ("right") insert ("or to provide or offer any inducement to an individual worker or workers to refrain from exercising such right")
§ The noble Lord said: The wording of this Amendment is identical with the wording of Amendment No. 37, although the placing of the two Amendments differs. I know that noble Lords on the Liberal Benches wish to contribute on this subject, and I think we are substantially in agreement with them. Here again this is an Amendment which very largely speaks for itself, since it is the counterpart of those parts of Clause 5 which preclude an employer from seeking by discrimination or by penalty to prevent the exercise of the rights of the individual, in the sense that we are seeking to prevent the offer of inducements to individuals to refrain from exercising their rights. I beg to move.
§ LORD BEAUMONT OF WHITLEY
As the noble Lord has said, we should I like to associate ourselves with this 317 Amendment. We agree that the noble Lord and his friends have placed this Amendment in a better place than we put it, and I should like to thank them for agreeing that we should move the Amendment with them. If there had been time, our names would also have appeared on the Marshalled List. All must realise, as both Parties on this side have always realised, that money can be used to force someone just as much as any other form of compulsion, and employers are in a very strong position if they want to try to bribe someone in a certain situation. I am not saying that this has often happened but, together with the very right safeguards which the Government have inserted, this is one that should be in the Bill. I look forward with interest to hearing what the Government are going to say, because, on the face of it, this is an Amendment which should almost be accepted "on the nod". I hope that the Government will at any rate give it very serious consideration.
§ 12 midnight.
§ LORD WINDLESHAM
These two Amendments—the noble Lord, Lord Beaumont, has explained that, although he did not move Amendment No. 37, he refrained from doing so in order to join with the noble Lord, Lord Delacourt-Smith, on Amendment No. 39—would make it an unfair industrial practice for an employer to provide or offer any inducements to an individual worker (or workers) to refrain from exercising the right conferred by Clause 5 to join or not to join such trade union as he may choose and to take part in its activities. The Amendment would therefore apply both to the right to belong to a trade union and to the right not to belong. As regards the right not to belong, which is contained in Clause 5(1)(b), this is already covered in subsection (5) of Clause 5, which rules out any reward for compliance or penalty for non-compliance when an employer seeks to encourage a worker to join a union. I should also draw the attention of members of the Committee to the anti-discrimination provisions in Clause 5(2)(b). These would apply to both the right to belong and the right not to belong. If an employer was to offer an inducement to a worker to refrain from exercising his right to join a union, he would by that act be discriminating against the other employees 318 who were not offered a similar benefit, and they would have a right of action under this particular clause.
Moreover, in Clause 5(2)(a) it is an unfair industrial practice for an employer "to prevent or deter a worker", and I think that by many members of the Committee the offering of an inducement—perhaps a financial inducement or an inducement of some value—would be regarded as an act by the employer which would deter in the way in which the word is used there. But the main difficulty we have about this particular proposal relates really to the enforcement provisions of the Bill, which are much later on—Clause 102 and elsewhere. It is not the man who is offered an inducement who will have suffered harm, of course. It is not that particular man who suffers harm, and therefore it is unlikely that he will come forward and complain against this practice. Therefore, there are considerable difficulties as regards enforcement in relation to this particular proposal.
§ LORD BROWN
Would the noble Lord permit me to ask a question here? This Amendment seeks to make this a part of the code of industrial practice. I am a little puzzled by the noble Lord referring to enforcement, because the code of industrial practice does not constitute an offence in itself. It is something which would be brought into discussion before the courts.
§ LORD WINDLESHAM
I think the noble Lord's eyesight must be failing him at this time of the evening. This does not affect the code of industrial practice. The words are,It shall accordingly be an unfair industrial practice …This does not refer to the code. But let me move on, because I intend to be con ciliatory, and it may help our proceedings to do so. We accept the thinking behind this Amendment, that it would be undesirable if an employer was inclined to offer an inducement; and that being so, we have four courses of action open to us. We can say that the difficulties to which I have referred are such that we must ask the Committee to reject the Amendment. That would be one course of action. The second would be to accept the Amendment outright. The third would be to say that we are prepared to 319 look at it again but, because of the difficulties I have mentioned, we do not have any great hopes of being able to come up with a solution; and the fourth is to say that we are willing and ready to look at it again in conjunction with noble Lords opposite with some hope that we may be able to reach a solution.
Our intention is to follow the fourth course. We agree entirely that the offer of an inducement for such a purpose should be regarded as an unfair industrial practice, and will undertake to introduce words to make this point explicit while avoiding the consequential drafting problems which would arise from simply adopting the terms of the Amendment now before the Committee. We shall be glad to discuss with noble Lords opposite and on the Liberal Benches the best way of achieving this object. With that assurance perhaps the noble Lord might feel able to withdraw his Amendment.
§ LORD SHACKLETON
May I say to the noble Lord that if he is going to be conciliatory he does not always need to keep us on tenterhooks? It was noble of him to say that the Government intend to be helpful, but there was no need to discuss the other alternatives.
§ LORD DELACOURT-SMITH
I take it that the noble Lord will consider this matter in conjunction with noble Lords on this side with a view to putting down an Amendment at some subsequent stage. In the light of that assurance I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ LORD DRUMALBYN
I beg to move Amendment No. 40 which is linked with Amendment No. 38 which I moved earlier.
Page 4, line 15, leave out ("subsections (3) and (4) of this") and insert ("the next following")—(Lord Drumalbyn.)
LORD DELACOURT-SMITH had given notice of his intention to move Amendment No. 41:
Page 4. line 19, leave out from ("union") to end of line 23.
§ The noble Lord said: The point of this Amendment will not be unfamiliar to 320 your Lordships. We have already covered this matter to a large extent in the discussion on an earlier Amendment; although I think it is true to say that this l is the first point at which we explicitly raise the question of its not being necessarily regarded as an unfair practice for an employer to refuse to engage a worker on the grounds that at the time he applied he was not a member of a particular trade union or other organisation of workers. This is a matter to which we shall return in much more detail on subsequent clauses in the Bill. In view of the hour I do not propose to move this Amendment, although I am sure that noble Lords on the other side will not regard this as signifying any change of heart on my part or on the part of my noble friends.
§ 12.10 a.m.
§ LORD DELACOURT-SMITH moved Amendment No. 42:
Page 4. line 23, at end, insert—
("(d) in contemplation or furtherance of a trade dispute to induce or attempt to induce any member or members of an independent organisation of workers to either leave that organisation or to act other than in conformity with its rules and policy.")
§ The noble Lord said: This Amendment requires more consideration by your Lordships' House. Although again I do not think it will be necesary for me to detain your Lordships with a long speech, as with an earlier Amendment, the brevity of an Amendment is no indication of its scope and significance. This Amendment deals with a situation in which, in the course of a trade dispute, an employer induces or attempts to induce members of an independent organisation or workers—that is to say a non-registered trade union—either to leave that organisation or to act other than in conformity with its rules and policy.
§ I hope that both sides of the Committee will find it possible to accept that such a provision should be incorporated in the Bill. When a trade dispute is taking place it seeks to secure that there shall be no endeavour by an employer, by propaganda, by direct approaches to individual workers, or in any other way, to encourage members of that organisation to leave it or to disregard its rules and policy—that is to say, to disregard 1 decisions taken in accordance with its 321 rules and policy which have been properly laid down by that organisation, even though the decisions, in accordance with the rules and policy laid down, may have produced the trade dispute in question.
§ The proposed legislation already places independent organisations of workers at a disadvantage. It imposes disadvantages on those organisations of workers which have not chosen, by registration, to bring themselves within the definition of trade unions set out in the present Bill. We are seeking here to ensure acceptance that in a trade dispute there should not arise the exceedingly provocative course of the employer attempting to undermine the organisation by endeavouring to get its members to leave that organisation or to induce them to disregard decisions for industrial action which might properly have been taken in conformity with the rules of the organisation. I think the case for this Amendment can be very briefly set out, and I hope that the Amendment will commend itself to noble Lords in all parts of the Committee. I beg to move.
§ THE LORD CHANCELLOR
May I comment very shortly on this Amendment? It really depends on how we want to handle it. It raises two quite simple points, and I should like to consult the wishes of the Committee, so far as I can. Obviously, the Amendment raises the question of an unregistered trade union. Clearly, we shall have a grand debate on that question at some time, but I wonder whether this is the appropriate moment at which to have it. At some stage in our Committee proceedings there will be a battle royal about registration and its consequences. I should have thought it would be a pity to have several battles royal in which the arguments are not fully deployed on both sides. It is like the closed shop and one or two other principles: we want to deploy the argument on the great debate which can be raised on this Bill.
I rather doubt whether now is the appropriate time to fight that battle, and therefore what I want to say about this Amendment, with the consent of the Committee, is this. The noble Lord proposes to add to the end of subsection (2) 322 of Clause 5 a further unfair industrial practice:(d) in contemplation or furtherance of a trade dispute to induce, or attempt to induce any member or members of an independent organisation of workers to either leave that organisation or to act other than in conformity with its rules and policy.In so far as this Amendment would confer privileges on an unregistered trade union this raises an issue which I do not particularly want to broach now but about which we shall, as I say, have to have a battle royal at some stage. But I hope that we can leave that on one side for the moment. Obviously "an independent organisation of workers" can refer to a registered trade union, and there we take a very different view. We think that the right to belong to a registered trade union is already fully protected in the Bill as drafted, by subsection (1) and by subsection (2)(a) of Clause 5. If the noble Lord can persuade me as regards registered trade unions that we have not already given this protection, I will ask my right honourable friend to examine the force of his argument between now and Report, because I think we do intend to give the protection to a registered trade union.
This is not intended as a concession, because we think that we have done it already. But if there is a case to be made that we have not, we should like to take account of anything that is said. So far as unregistered trade unions are concerned, this is part of the general battle which I shall hope to broach later and discuss at full length when the Committee is fuller and when we are fresher to fight an important political battle.
§ LORD DELACOURT-SMITH
Would the noble and learned Lord repeat again where he considers the position of the organisation which is registered as a trade union is covered?
§ THE LORD CHANCELLOR
I think it is covered by Clause 5(1), which gives every worker the right to belong to a trade union and to take part in trade union activities. That is the clause we have been on most of the day. Subsection (2) makes it an unfair industrial practiceto prevent or deter a worker from exercising any of the rights conferred on him by subsection (1).323 Our view is that an employer could not induce a union member to leave his union without running foul of these provisions. If the noble Lord has a case that, by inadvertence, we have left out something, or that we have not covered that adequately, that is something which I should wish to consider. It would be basically a criticism of the drafting of the clause and something about which I should not wish to have a battle now because, if he is right, we should like to consider it. I do not want to offer any hope about unregistered bodies, because that is a difference between us.
THE EARL OF DUDLEY
I should like to make a very brief intervention. This point has been made before by the noble and learned Lord about the definition of an independent organisation of workers and its reference to unregistered trade unions. Surely, if an Amendment incorporating these words were brought into the Bill it would carry the definition of "independent" in Clause 158, which is totally different from registration or non-registration.
§ THE LORD CHANCELLOR
I think it would but, unless I am mistaken about the meaning of this—again I may be wrong—anything in the Bill which reflects part of the Interpretation clause, Clause 158, would include that. But I think it was intended that this phrase should cover both registered trade unions and other bodies which were not registered as such. I think I am right in saying that the net effect of that would be to raise the issue, which I do not particularly want to raise now, whether unregistered bodies should have privileges of this kind. If I am wrong about that, that part does not arise and we need not argue it for the quite different reason that it does not apply.
THE EARL OF DUDLEY
I hope the noble Lord will forgive me for having made this brief intervention. I did not want to split hairs or confuse the issue at this stage, but it did seem to me that there was a point to make.
§ LORD DELACOURT-SMITH
If I may just make reference in the first place to the position of the registered trade union, I must of course accept the guidance of the noble and learned Lord, but as a layman I do not see how "inducing 324 a member or members to leave the organisation or to act other than in conformity with its rules and policy" is completely covered by the two subsections to which the noble and learned Lord has referred. I appreciate that there is a right to take part in the union's activities; but surely the position, so far as positive action by the employer is concerned, arises when one comes to subsection (2), which addresses itself in this context surely to preventing or deterring a worker, to dismissing, penalising or discriminating against a worker, to refusing to engage a worker in certain circumstances, and so forth. If the noble and learned Lord is telling me that in fact to try "in contemplation or furtherance of a trade dispute to induce, or attempt to induce" members to leave the organisation, or to disregard its rules and policy, is brought in under those words, then naturally I must accept what he says, but I am bound to say it does not seem to me to be evident.
§ THE LORD CHANCELLOR
I think there is room for argument here, because quite obviously in the course of an industrial dispute there is a sense in which every worker is breaking his contract with his employer, and every employer is asking the worker, if he asks him to stay on at work, to disregard the instructions of his union. But I do not think either side of the Committee at this hour of the night would wish to prevent the ordinary process of industrial action in that sense. But if what is meant is that, whether in the course of an industrial dispute or not, it is wrong for an employer to try to bully his workers into leaving their union, then I am wholeheartedly with the noble Lord; with this addition—which he may have forgotten and which by inadvertence I had omitted to add—that my noble friend in answer to his previous Amendment has been dealing with the question of inducement by saying that my right honourable friend and he will consider adding the question of inducement to the clause as part of his fourth alternative, as to which he kept the noble Lord, Lord Shackleton, on tenterhooks for so long.
This I think is an additional reason for perhaps looking and seeing if there is any real difference between the sides of the Committee on this matter, or whether the drafting could be tightened 325 up or not. If the noble Lord is pressing me to say that any employer who asks his employee to stay at work during a strike is falling foul of the Bill, I would not go so far as that, because that is as inherent in the process of industrial action as is the employee's right to stay away from work when he is on strike. I do not think that is what the noble Lord is trying to get at with his Amendment, but, as I say, I am not clear. I cannot give him the absolute assurance that there is not a casus omissus here, but I should like to know what it is, and if he will reflect upon it and perhaps write to me, I will reflect upon it and see if there is something more to be done.
§ LORD DELACOURT-SMITH
In view of the response which the noble and learned Lord has made, at any rate on one part of the proposition, I think I can scarcely pursue this point further, especially at this time of night. He of course reserves his position, and of course we reserve our position on the situation of the unregistered union. But as I understand it he will be prepared to consider the registered union, and he does feel that the point of our Amendment, so far as the registered union is concerned, ought to be met; he feels it is already met, but he is prepared to examine the situation. In those circumstances, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
LORD DRUMALBYN moved Amendment No. 43:
Page 4, line 24, leave out subsection (3).
§ The noble Lord said: I have already explained the purpose of this Amendment. This subsection is to be left out in order to be reinstated later in a slightly amended form. I beg to move.
THE DEPUTY CHAIRMAN OF COMMITTEES (LORD HENLEY)
I have to inform your Lordships that if this Amendment is agreed to, I cannot call Amendments Nos. 44 to 47B.
§ LORD DELACOURT-SMITH
We accept the situation, as we have already indicated, and do not wish to pursue the matter further.
LORD DRUMALBYN moved Amendment No. 48:
Page 4, line 41, leave out subsection (4).
§ The noble Lord said: This is the second of the two subsections which are being left out merely to be reinstated in the new clause, Amendment No. 53. I beg to move.
§ 12.23 a.m.
LORD DELACOURT-SMITH moved Amendment No. 50:
Page 5, line 16, at end insert ("without loss of earnings").
§ The noble Lord said: This is an Amendment the intention of which I think is perfectly clear. We are returning here to the question of the trade unionist who at an appropriate time is carrying out the activities of his trade union. The appropriate time, apart from his own time, includes that time within his working hours to which his employer has given his consent. Here we are merely incorporating what I think would be generally recognised as an appropriate feature of arrangements of this sort.
§ When we were on this point earlier, on subsection (1)(c), my noble friend Lord Brown referred to the desirability of facilities for workshop representatives. I think that the basic, the minimum, facility which an individual is entitled to expect is that when he is carrying out his trade union activities during his working hours, with his employer's consent, he is not deprived of his earnings for the period of time in which he is engaged in these activities. It would be possible and admissible, and in some circles regarded as necessary, to dwell upon the degree to which the activities carried out by a trade unionist in his place of work in the circumstances described are beneficial, not only to the trade union membership he is representing but also to the I firm by which he is employed. I do not really think there would be dissent in your Lordships' House to that proposition; therefore I do not propose, unless it is necessary, to labour that point. I am prepared to leave it on the basis that this is a clear position which comon sense suggests should be accepted, but which it would be just as well to embody in the Bill. I beg to move.327
The noble Lord has made perfectly clear what the object of the Amendment is, which is to ensure that anyone who takes part in union activities should not suffer loss of earnings on that account. As it stands, the clause protects a worker from discrimination for taking part in union activities during any time in working hours when arrangements have been made for him to do so. I think it would be pretty obvious that the arrangements made between the union and the management would include that he did not suffer loss of earnings. But if, for some curious reason, the unions and the management agreed he should suffer loss of earnings, he would not receive any protection under the Bill if the noble Lord's Amendment were pressed. It is highly unlikely that this would happen, and the majority of arrangements as to how people should take part in union activities are made as a result of agreements between the union and management which would incorporate the very point which the noble Lord, Lord Delacourt-Smith, fears, which is that any person taking such part should not suffer any loss of earnings. I would suggest that it would probably be best for this kind of thing to be left to the union and management in question, and I would suggest that the noble Lord's fears would not in fact materialise.
§ LORD BROWN
I would like to support this amendment very strongly indeed. The situation in industry is not quite as simple as it sometimes appears. A worker may have been elected to become a shop steward or something of the sort, and it may be agreed that he is given time away from his machine—I hope full time away from it if the factory is a large one—and he is assured that he will not have anything deducted from his pay. But if he is on piece work, or if as a result of doing this he is not allowed to do the normal overtime working that would accrue to him in the shop, he does effectively suffer loss of earnings simply by taking on a job through which he seeks to help his fellow workers, and also through which he seeks to be a channel of communication with management. This securing him from loss of earnings, as the Amendment suggests, can be very important indeed. It may be that if one examines the Bill carefully through a lawyer's eyes it may be unnecessary, but 328 I would much prefer to see this protection quite clearly stated, so that the backwoodsmen of management—and there are some—may know that this is very important.
§ LORD BERNSTEIN
I would support the noble Lord, Lord Delacourt-Smith, in this. This is common practice in most enlightened companies at the present time. If you can incorporate this you will indicate that the Government are in favour of people having an opportunity of working for the trade union within the organisation of management, without loss of earnings. It can do no harm if you include it; it can do harm if you exclude it. It has to be byarrangements agreed with, or consent given by or on behalf of, his employer …".If the employer does not agree that is one thing, and there is an end of it. If he does agree there is an indication here that, according to what you said before on behalf of the Government, you would be in favour of a shop steward not losing his earnings. Is it not possible for you to agree to this? It is certainly common practice, and it would please the unions.
§ 12.35 a.m.
§ THE LORD CHANCELLOR
I must point out that we are getting into a muddle here. The drafting of this Amendment renders it hopeless to achieve the object intended, unless I have it wrong, in which case I shall be corrected. The Amendment is to Clause 5, page 5, line 16, and proposes to insert the words "without loss of earnings" at the end of the line. The line that we are discussing in the Amendment is part of subsection (6) of Clause 5. That refers solely to the definition of the words "appropriate time". "Appropriate time" only becomes material if one looks back to paragraph (c) of Clause 1(1). That gives a worker, as we discussed at an earlier stage, the right to take part in trade union activities at an appropriate time, which means either (a) outside working hours, or (b) inside working hours if the employer consents. The effect of inserting in the definition clause the words "without loss of earnings" would mean, and mean only, that the employer could discriminate against an employee in such a way as to deprive him of the right under paragraph (c) by seeing to it that he did suffer loss of earnings, and therefore could frustrate the purpose of paragraph (c). 329 That is not what we intend, and I doubt very much whether it is what noble Lords opposite intend. I think therefore there is a muddle here which I should point out.
§ LORD BERNSTEIN
I thank the noble and learned Lord. But if the Amendment is wrongly placed, can the noble and learned Lord advise the Committee what would be the right place in which to put the words?
§ THE LORD CHANCELLOR
I do not think it can be done in that way. What has to be understood about this clause is that it is a clause to give workers the right for this purpose to take part in trade union activities, that right being enforceable against the employer as an unfair industrial practice. If it is desired to insert words to say, "I want him to take part in trade union activities during working hours without loss of earnings", which I gather is what is at the back of the minds of some people, it cannot be done by inserting "without loss of earnings" in a clause which permits him to take part in industrial activities. I think the noble Lord would have to do it by a new clause. That course is open to the noble Lord, and if it is done we should look at it. I cannot see that it can be done by tinkering with this clause in this way.
§ LORD DAVIES OF LEEK
What the noble and learned Lord is really saying, then, is that, despite the statement in Clause l(1)(c) about the rights, if these words were in the employer, by giving consent, would imply that he was prepared to pay the loss of earnings. If he did not give consent there would be no loss of earnings. All I am pointing out is that something is being missed here in the struggle to put human activities into words. Anybody who has mixed with workpeople in factories where the employers have a humanitarian outlook, allow outside activities and pay the two or three shillings necessary for two or three hours away, will know that they are considered to be good employers, and they have an influential effect upon productivity.
We must not forget that there are things one cannot measure, such as the good name of an employer. All of us who have mixed with men and women who earn their living by hand or brain with the skill which is necessary in factories, know that 330 it is a good place in employment where the workers say, "They are damned good bosses there. They see that you get appropriate cover". They do not want to lake advantage. The best trade unions see to that. It would be grossly unfair—an unfair practice—for me to extend this discussion further at this late hour, but I sincerely hope that we can find some means of making this provision.
§ 12.41 a.m.
§ LORD DELACOURT-SMITH
It would be helpful if the Lord Chancellor would indicate whether the intention of this Amendment is acceptable to the Government. If he could indicate that and accept that it would be desirable to incorporate this point, I think the question of the wording could be cleared. I take the point made by the noble Earl, Lord Ferrers, that this is something normally dealt with in the agreed arrangements between employers and trade unions. In most cases—certainly in the case of the good employers to which my noble friend Lord Davies of Leek referred—no great difficulty arises. But unfortunately—and this marks the Bill on every page—we have to take account of the fact that there is a variety of employers in this country. I certainly should not think it necessary for this point to be incorporated in some authoritative way. I think my noble friends would be content to leave it on an assurance that there is sympathy for this point and willingness to incorporate it in the Bill or, if in the end it seems more appropriate, in the code of practice.
§ THE LORD CHANCELLOR
I quite see that this is reasonable, but I do not want to speak outside my particular area of knowledge. I was merely trying to keep the drafting straight, because if I serve a useful purpose at all—which some people seem to doubt—it is to make sure what the effect of the drafting will be. My noble friend Lord Drumalbyn, with whom I have had a word during the speech made by the noble Lord, Lord Delacourt-Smith, has said that he would like to look at this again. That is the best I can do at this hour.
§ LORD SHACKLETON
I hope that the noble and learned Lord, the Lord Chancellor will not lose confidence at this hour. He has been very helpful. None the less, I am bound to say that it is a 331 well-established practice in your Lordships' House that the Opposition put down Amendments as best they can. The noble and learned Lord kept us up very late in another place on the Trade Disputes Act in 1946–47 when not all the Amendments were perfect. The purpose of this Amendment seems crystal clear, although the Lord Chancellor has completely convinced us on its inappropriate nature. I only hope that the Government will discuss its merits and not merely its technical significance. I know that normally the noble and learned Lord seeks to go to the heart of the matter, but I am not quite clear on this point. All we know is that the noble Lord, Lord Drumalbyn, has been able to say that he would like to think a little about it. No doubt the Amendment was sprung on him with great surprise and he was told that it was not workable; and that was enough. But I do not think that is entirely good enough.
I do not want to press this, except perhaps to encourage the noble and learned Lord to say that serious consideration will be given to the proposal. I am sure that he sees the point of the arguments made by my noble friend Lord Brown and others. Could we perhaps have some further word as to how far the Lord Chancellor has discussed this matter with the noble Lord, Lord Drumalbyn? Perhaps in future he could even talk to him a little more fully on some of these Amendments.
§ THE LORD CHANCELLOR
I intervened in this matter only because I thought we were getting into a muddle from a drafting point of view. I know that when my noble friend says he would like to look at something again he means he will consider it seriously, and I meant it in that sense. There are some things within my own sphere that I think I understand very well about this Bill. Probably they are things which other people would need help about. This is not one of them. I was concerned that noble Lords had showed signs of pressing an Amendment which simply would not do and that there might be merits in it which we should wish to consider. I received from my noble friend Lord Drumalbyn the definite assurance that he wanted to look at the matter again. With that, I put it to the Committee.
§ LORD SHACKLETON
We are very grateful for the help that the noble and learned Lord gives. But he speaks for the Government. He has repeatedly said he speaks within a particular remit and in the extent of his knowledge, with this charming modesty of his. None the less, we want to know what the Government think about the purpose of this Amendment. What it intends is crystal clear. It may be that the noble Lord, Lord Drumalbyn, may wish to say a little more. We now know that the noble and learned Lord has discharged his duties according to his lights of helping the Committee on the meaning of this Amendment, saying that it is a nonsense. We accept this; he has convinced us. As the noble Lord, Lord Drumalbyn, is the expert on policy here, it may be interesting if he could say something to Us.
§ LORD CONESFORD
The noble Lord the Leader of the Opposition says that the purpose of this Amendment is crystal clear. I must be vary foolish because I cannot quite follow it. If the noble Lord succeeded in putting the words in where this Amendment asked for them to be put in, it seems to me that the trade unions would be worse off. I think my noble and learned friend the Lord Chancellor has convinced the Committee on that. Is the wider purpose that because it may be good practice in many cases to allow this outside working hours that, therefore, there must be a provision in the Bill that the employer must always give facilities for these things to be done outside working hours? If it means that, it opens a very difficult question. If it does not mean that, I am not clear what it means.
§ LORD BROWN
May I help the noble Lord? People in employment have to elect representatives. This is becoming an extremely important function; it is not just to protect their own interests.
§ LORD CONESFORD
It has been pointed out to me that by a slip of the tongue I said "outside" when I meant "inside", which may have made my remarks more confusing than they normally are. I apologise for that.
§ LORD BROWN
In the past these people have been regarded as a nuisance—as a manifestation of the unruly spirit 333 of man, and all die rest of it. What has to be faced today is that they ate a very important part of industry. They are doing something not only for their own fellows, but which is essential to the whole process of carrying on industry. It is not uncommon for people so elected to lose a substantial part of the earnings they would have earned had they not been elected. For an individual to take on heavy additional duties, very often to be the subject of great unpleasantness from his foreman because he is not at his machine half of the time, and equally to suffer loss of earnings, because he may lose some of his piece-work earnings and also some of the overtime which he would otherwise have been asked to work, is unfair. Good firms do not allow this to happen. But many firms do. The purpose of the Amendment is to try to ensure that these important people, who are trying to help industry, management and others, should not suffer loss through undertaking any public duties, if I may use that term. That is the purpose of the Amendment as it was put down.
§ VISCOUNT MASSEREENE AND FERRARD
Surely this Amendment will restrict union activities, because some employers may say, "We will allow members to engage in these activities in their working hours, but of course if we have to pay them then we are not so keen on allowing them to do this in working hours." I know several employers who hold that point of view. I think it will restrict anion activities.
§ LORD BROWN
If the union is properly organised employers will find it very difficult to restrict officials in doing their job in a factory. The purpose of the Amendment is simply to prevent them from losing money through doing this job.
§ LORD BROWN
There is a certain amount of "backwoodsman" creeping into this discussion. The reason why the employers should pay them is because they are an essential part of an industrial organisation.
§ LORD DRUMALBYN
Perhaps the noble Lord is asking a little too much of us here. The Amendment as put down had a meaning. It was a meaning which we did not think was very sensible and we doubted whether the Opposition really intended it. To look exactly into what the Opposition intention was is a different matter. I think we went as far as we could in discussing this; I do not think we could have gone any further. But the main thing I should like to say is that it is extremely difficult to ask us at this time to commit ourselves to a view on the basis of an Amendment which itself was not clear. If we had known exactly what the Opposition was after, then we might have been able to form a view as to whether we were in agreement with that or not. Now that we have a clearer idea of what they are after we shall discuss that; and I hope that we can leave it there.
§ LORD PLATT
Is the noble Lord saying that he does not know what "without loss of earnings" means? That is all it is.
§ LORD DAVIES OF LEEK
In view of the fact that quite a lot of information has been gathered from the United States, would the noble Lord, in an effort to understand the meaning of this Amendment—and in view of what the noble and learned Lord the Lord Chancellor said, that there is the possibility of a new clause—get in touch with the American trade union movement to find out how many hundreds of thousands of trade unionists there receive pay for doing a first-class job in their unions to increase productivity, during working hours? It 335 would give a good name to the Conser-vatice Party, and to their intentions on the Bill.
§ LORD DRUMALBYN
I am sure the Department of Employment keeps in touch with the situation in the United States of America. Indeed, in the course of my discussions I have been told from time to time in what respects we are better than the United States of America, and in what respects they are better than us.
§ LORD DELACOURT-SMITH
We have discussed this matter at some considerable length. In the light of the assurance now given to us by the noble Lord, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
Page 5, line 20, leave out ("subsections (1), (2), (5) and (6) of").—(Lord Drumalbyn.)
§ 12.55 a.m.
§ On Question, Whether Clause 5, as amended, shall stand part of the Bill?
§ LORD SHACKLETON
I hope the noble Earl the Leader of the House is satisfied at the very considerable progress we have made. We have dealt with, I think, 30 Amendments. Some of them have been assisted by the noble Lord, Lord Drumalbyn, who moved them into a later stage, and if I may say so it has been helpful to have some of the genuine Committee points dealt with as clearly as the noble and learned Lord the Lord Chancellor has done. Indeed we have made so much progress that I am tempted to suggest that the moment may have come when we should all go home to bed. We have had several remarks made about "this late hour"; I detect a certain excitability on the Back Benches of the Conservative side of the Committee at the moment, and I am wondering 336 how wise they are to continue. At any moment I should not like to foretell what might happen.
If it is not the intention of the Government to stop the business, unless the noble Earl wishes to intervene I shall assume that they are in fact intending to get to the end of Clause 5. It has been a clause of major importance and there would be a case—and I believe a genuine case—for examining what has been done to the clause, both concerning the bits that have been taken out and the promises that have been made, so that in the I traditional debate on clause stand part we can review that progress has been made.
I could have wished on this clause that it had been possible for the Government to move more in the direction, as we shall seek to press them to do on later clauses, of accepting the views of so many people in industry, some of whom I see sitting on the Conservative Benches, who understandably in their very proper loyalty to their Party do not wish to embarrass the Government and who have got themselves committed to the concept of under no circumstances having a closed shop. We shall accept this concept under very limited circumstances, and we shall pursue it further on the later clauses. Therefore I hope that when my noble friends continue to speak on the Question, Whether Clause 5 shall stand part of the Bill, we shall be able to review some of the matters which we have been discussing, and it may be that the Government will also have had a chance to review the situation. We shall be looking gloomily at the effect of Clause 5.
I would just again say that I hope that the noble Earl, who I know has problems in various directions, will be able to recognise that we have got along quite fast and quite well, and provided we get the consistent approach that the noble and learned Lord has given us to-day and do not get into discussions as to who is responsible for killing the House of Lords Reform Bill, on which for some reason he was "needled" into giving a wholly inaccurate version of events, there is no reason why we should not continue to make progress. I am only sorry that there are not more of I my noble friends present, and I strongly suspect that the noble Earl had perhaps 337 got this in mind. I do not blame him for this, but we shall do our best now to deal with the Question, Whether Clause 5 shall stand part of the Bill.
THE LORD PRIVY SEAL (EARL JELLICOE)
I must first respond to the noble Lord the Leader of the Opposition's kindly remarks. I am most grateful to him for his solicitude for me, the fact that I have some problems in some directions. I do not think I have the problem of a very excitable audience behind me; looking behind me, it seems to be remarkably calm and composed and resolute. But I would certainly assent to one proposition which the noble Lord, Lord Shackleton, advanced; and that is, that we have made reasonably good progress in the latter hours of today's discussion, and I am grateful for that. I think this is something which the House as a whole has achieved, not least because of the notably conciliatory attitude of Her Majesty's Government, and indeed of the Opposition who have shown their usual co-operation. I feel that progress made is some compensation for the remarkably stationary performance we have hitherto achieved. The noble Lord has suggested that we might adjourn now. Quite frankly. I feel that having made quite a bit of progress we should make a little extra effort, and I think it would be sensible to tuck Clause 5 under our belt this evening and to do it now while our debate on it is fresh in all our memories.
§ LORD DAVIES OF LEEK
We have got so mixed up with the meaning of words. Does that mean that we are now going to debate the Question, that Clause 5 stand part?
But it was my impression that we were almost already doing it, from the remarks of the noble Lord, Lord Shackleton.
§ LORD DELACOURT-SMITH
As the noble Earl says, my noble friend Lord Shackleton has already made some observations on the situation which confronts us at the end of our consideration of this clause. It is. as we have said a number of times during the day, an important 338 clause, and it is gratifying that the Government have taken some points of it away for further consideration. But I am bound to say that it still remains a clause, notwithstanding the points which are going to be further considered and notwithstanding the fact that the noble Lord, Lord Drumalbyn, has removed some of the vital parts and transplanted them into the new clause which we shall be considering in due course, in which there are a number of features which are extremely disturbing.
I do not think it is possible for anybody to have listened to the speeches which were made by a number of my noble friends, who spoke with great and long experience of trade union affairs, without feeling the sincere concern which is felt about the effect which a Bill in which this clause will play such a key part is likely to have on industrial relations. I should like particularly to direct attention to three points which still remain in the Bill, First of all, my noble friends have expressed concern, and little if anything at all has been said from the other side of the House which allays it, about the effect of the Bill as proposed upon the arrangements which have been built up by the trade union movement and which are particularly embodied in the Bridlington agreements. I am bound to say that, particularly in the earlier part of our proceedings on this clause, it frequently seemed that the two sides of the House were speaking in different languages, and were having a real and genuine difficulty in communicating with each other.
Many of my noble friends feel anxiety (and I confess that I strongly share it) that the whole approach which this Bill embodies, and which is set out in this clause, is one which is quite inappropriate to the industrial relations circumstances of this country. In particular, a number of the measures in the Bill are likely—without it being, I admit, the intention of the Government—to have a really disruptive effect on some of the most valuable and most forward looking features in our industrial relations arrangements. I have in mind the kind of discipline which is exerted by the General Council of the Trades Union Congress over trade unions in respect of competition for membership, spheres of I influence among membership, and in 339 respect of a whole series of arrangements which minimise the possibilities of conflict. I think this contributes far more than many people appreciate to the avoidance of disputes and dislocation in industry. We still remain extremely anxious about the effects upon those arrangements of the provisions in this clause. I am afraid that although good will was expressed towards this point by some noble Lords opposite, they did not indicate precisely how the arrangements made by the Trades Union Congress were going to be continued.
This leads me to the second point, which is closely related to the first, and about which again anxieties have been expressed: the possible proliferation and creation of splinter unions. Again, I concede readily that this is not as a deliberate act of policy, but as a subsidiary consequence of some of the provisions of the Bill. Although this is a point to which we shall have to return at a later stage. I must confess that I could not follow the argument of the noble and learned Lord that the provisions of Clause 63 of the Bill were a safeguard against any possibility of splinter organisations being established. Nor indeed, if I look at the closely related Clause 65, which also deals with the provisions for registration of organisations of workers, can I see that the danger is removed by those provisions. But this is something to which we shall have to turn our attention at a later stage.
Lastly, I must again express regret that we have retained in the clause what I think is a most unfortunate provision; that of putting the right to be a non-unionist on an identical and indeed, as I pointed out, even a superior footing to the right to be a trade unionist. I am sure that this is likely to have unfortunate consequences in a number of respects, and not least in those very substantial occupational fields where trade unionism is not a condition of employment, and where trade union membership is maintained on an entirely voluntary basis.
We shall of course inevitably be returning to some of these themes in more detail in later sections of the Bill, but I am bound to say that, despite the degree of progress which, on some points, 340 I we have been able to make, the provisions of Clause 5 are still, in the long run, likely to militate against the improvement of industrial relations rather than in the direction of improvement.
§ 1.9 a.m.
§ LORD DAVIES OF LEEK
In fairness I shall try to cut my remarks down to about three minutes, and concertina what I should normally like to have taken about eight minutes over to deal with what I consider to be a very important clause. I do not like to use the word "sinister", because I would not like to cast upon noble Lords opposite sinister and ulterior motives, but nevertheless to trade unionists this is one of the most sinister clauses in this Bill.
Paragraph (b) of Clause 5(1) gives every worker the right to be a member of no trade union. That is ridiculous. Because of that, it would be an unfair industrial practice for any employer to dismiss or refuse to employ a non-unionist, and it would be equally illegal to call or threaten to call a strike in order to induce an employer to do that. This clause can be called a charter for anti-union activity. I shall not use pejorative words, words shot through with bias. But this clause would outlaw the pre-entry closed shop, as well as the 100 per cent, trade union closed shop.
It was pointed out in another place that it would go much further, because it strikes a crippling blow at trade union membership and recruitment. This worries us. The Donovan Commission felt that the right not to join a union should be rejected, because, they said, "it was designed to frustrate the development of collective bargaining."
Because of the presumption of the male sex, this Bill has paid no attention to the position of women in the modern trade union movement. Secondly, I have had some experience in the other place of presenting Bills on industrial injuries and diseases, such as pneumoconiosis, as well as cancer of the bladder which is caused through working in rubber factories, and it is a trade union activity to discuss those matters. We have completely missed that point tonight, because we have to rush through this massive Bill. We have had no opportunity of considering the implications of this Bill in relation to new industrial diseases, which are the result of the spread of 341 information in biochemistry, in physics, and in the use of new oils and composite liquids. It is only during the last 20-odd years that some of the marvellous new products from the laboratories have become available to the industrialist.
Thirdly—and I am not going to be rushed into incoherent diction—let us remember that it is not detrimental to a manufacturer to have good trade union relations in his factory, or to find the money to pay to have good relations in the proper working hours. A factory that has good trade union relations gets good productivity and a good name, and a graph would show its strikes to be the lowest in number.
Lastly, we are going away from the strength of the British people—and being a Celt I am one of the original British people, together with the Gaels, the Picts and the Scots. I do not know why everybody is rushing into the Common Market like the Gaderene swine. I will have more to say about that when we discuss it later. But why are we trying to copy some of these practices from other parts of the world? It was this country which taught the world many of the secrets of voluntary co-operation; and I beg noble Lords opposite (there is the talent there), if you do not think we are clever enough to get the right kind of Amendments, think some good ones up for us and put them down! We are told by the noble and learned Lord Chancellor that if the phraseology had been different all would have been well. The bells would have been ringing and the Amendment would have been accepted. I can see the Lord Chancellor, with that marvellous face of his, with good humour, embracing us for a moment and then losing his temper and telling us we do not know our business. Please co-operate to make this Bill better than when it came from the other place.
I have been looking up an old historian—and I will finish with this. Humbert Wolfe was the official historian for World War I. In Labour Supply and Regulation, he said:… the excesses to which employers were driven in the early months of the war…the pressure of employers to work long hours, backed as they constantly were by the Departments of State responsible for the output of munitions … There were cases of men working 100 hours a week; and 70 to 80 hours were not uncommon. A famous case which attracted much attention was that of a Mr. Cook, a worker in a small arms factory, 342 who died suddenly. At the inquest it emerged that Mr. Cook had been working 80 hours a week since August; and the coroner spoke of him as having ' died for his country'",Let it be remembered—and I had to go to hundreds of factories during the last war—that in times of emergency much good work is done by the trade union movement voluntarily, and it is done with good will for the sake of the country. Do not let us get the wrong approach where we lose the co-operation of the trade union movement because of a reactionary attitude to this matter.
So, in speaking on the Question, Whether Clause 5 should stand part, I say that I think Clause 2 and Clause 5 are two of the most important clauses in the Bill. I am therefore grateful, in a way, that we have had the chance tonight, because it is fresh in our minds, to debate the Question. Although your Lordships may think that I dealt with some of it jocularly, that does not mean in the least that all of us on this side of the Committee, and I think many noble Lords on the other side, are not quite sincere about some of the treasures which the British trade union movement has taught this country in industrial relations.
§ 1.18 a.m.
§ THE LORD CHANCELLOR
I am glad that the noble Lord did not allow himself to be "rushed into incoherent diction". I -shall endeavour not to rush into incoherent diction myself. I think that perhaps we need to sum up today's activities. There is room for a dialogue here, but equally there is no room for disguising the fact that there is a difference of principle between the two sides of the Committee which it would be both dishonest and foolish to try to paper over. I should like to define the area of difference in a very few sentences, but also to define the area of dialogue, too.
When the noble Lord, Lord Delacourt-Smith, wants to be reassured about the Bridlington agreement, I should like to reassure him about the Bridlington rules. I think they play a useful part in our industrial scene in removing demarcation troubles between one union and another. I know he has the impression that I have never heard of them before, but I have in fact advised professionally on them so I do know 343 more or less what they say. Although they are rather less well drafted than this Bill. I am very much in favour of them, and I feel that they will be just as effective after the Bill becomes an Act as before. As we go along—and I shall try to indicate why more debate is needed to give him full assurance—I hope the noble Lord will gradually come to see that this Bill will not do any harm to them, but will help them.
On the second point there is also room for dialogue because, so far as I know, nobody who has spoken in the debate so far has wanted a proliferation of small unions. On the contrary, everyone has agreed that we want large unions which control their membership with the kind of discipline which the noble Lord, Lord Douglass, was speaking about earlier and which can "bring home the bacon" of any agreement they make with employers or employers' associations. We do not think, for reasons which I shall give, that this Bill will encourage small unions in the least. We do not want to encourage them; so there is an area for fruitful dialogue and, as I shall go on to show, as the Bill progresses we hope to establish that, so far from encouraging them, we can discourage them.
We then come to what is inescapably a point of difference which has really dominated the discussion today. It is not true that we want to elevate the non-unionist on to a pedestal of some kind. That is something that we do not want to do. I myself belonged to my professional association as long as I was a practising barrister, and I have always tried to encourage other people to do the same; and I fully understand those who take a moral stance that membership of whatever association is appropriate to you is part of your social duty to your neighbour. Activity in it is one of the many ways in which you can serve the public. Nobody could feel that more strongly than I. Equally, no one could reiterate more than I what we feel is a question of principle on this side of the House, that fundamentally a union is a free association of members. Curiously enough, that phrase has gradually emerged from the side opposite but not in connection with Clause 5. Some of us listened from the galleries to what was going on in the other place. 344 If I were a betting man I would almost sink my last dime on the proposition that when we come to the registration clauses noble Lords opposite will be talking about the unions as a free association.
How can you justify the rights of a union as a free association if it is not free? The essence of a free association is that you can belong to it or not belong to it as you choose. You may be rather less reputable or less estimable if you do not, but if you want the rights of association to be free it must be that their freedom depends on voluntary membership. That is what we think and we recognise that it is no good papering over the difference which exists between us and the opposite side of the Committee. We believe—we may be wrong, but we are willing to stand on that belief —that a free and voluntary association is more powerful in itself and stronger than a compulsory association. We believe that one volunteer is worth more than two pressed men. That would be so—although I shall in a moment have something more to say about that—even if that involves tolerating some of what I believe are called "free riders"; although it is the policy of this Bill to discourage "free riders" as we shall see in detail when we come to look at the agency shop clauses and provisions. But it is a real protection for an association that it is composed only of free members; and if in fact it has a number of pressed men in it we believe that this: both corrupts and weakens the association which has to resort to that kind of compulsion in order to make membership.
We quite recognise the argument that is presented on the other side of the fence, and we have tried to provide for it. Several trade union leaders said this afternoon that there were people—and we recognise that this may be so—who simply did not belong because they did; not pay the dues and tried to accept the benefit of union membership without paying for it. The agency shop provisions are designed to meet their case. When we discuss them we shall see how far they do meet that case. But we think that they meet the case because they apply a financial penalty, normally without corresponding advantages, against "free-riding." We think it will ensure that membership of a union will be almost 345 universal where feeling amongst the workers is in favour of union membership; but that is the only reputable situation where it should be almost universal.
It applies a penalty against the so-called "free-rider" because he has to pay the agency people, unless he is one of the very few people referred to by the right reverend Prelate, Who referred to those who for some reason quoted the Second Epistle of St. Paul to the Corinthians as a reason for not joining a union—a reason with which I have come into contact several times in my public life, but one which I have never been able wholly to understand. If a man is not disposed to pay the dues, the agency shop provides a financial penalty. He has to pay virtually the whole of the compulsory membership fee; he gets no strike pay if there is a strike and does not enjoy any of the benefits of a general kind which may be provided by the union's funds. Therefore he has to pay virtually what it costs to be a union member, and if he is one of the rather queer people who refer to St. Pauls Epistle to the Corinthians, exercising a prohibition against union membership, he has to pay money to a charity instead.
Therefore, we think that we have dealt with that criticism. On the other hand, we believe that compulsory union membership is intrinsically an injustice and runs contrary to the Universal Declaration Human of Pluman Rights. We know that there have been examples—one of which was quoted by one of my noble friends—of a man with 20, 30 or 40 years' experience of earning a living in a particular trade being dismissed by an employer because of the introduction of a closed shop, simply because the man did not want to join the union. We think that the right to earn a living—especially an established right born of a lifetime of service in a particular occupation—is at least as fundamental as the right to associate. And union authority is not diminished by a few dissentients. If there are on the periphery a few eccentrics who say to a union, "We don't like the way you run your show; we think your leadership is extreme (or not sufficiently extreme); we don't like associating with you", we do not think that weakens the union. Curiously, the right reverend Prelate said earlier in terms that if his 346 union (the Union of General and Municipal Workers) did not change its tune he would reconsider his membership. But then he went on to say, with what appeared to me to be an extraordinary lack of logic, that he would only allow other people to leave their unions on grounds of conscience. In other words, he was free to change his union on grounds of policy, but they were only to be free to change on grounds of conscience.
I find it very difficult to understand this particular form of theology. There should therefore be no difficulty in establishing the authority of the unions without attacking the principle of free association. But I know noble Lords opposite will not be convinced by that argument. I have known them long enough to know that I shall not persuade them. All I ask them to believe is that there is no chance whatever of their persuading us of what they believe about compulsory union membership. This is the point about which there can be no papering over of the difference, and on which we shall have to establish our position in Clause 5 by vote at the appropriate time.
§ LORD DAVIES OF LEEK
We speak about unions as if the only thing was membership and the giving of strike pay. If I lost my arm working in a factory, would an agency shop put a barrister at my disposal and help me in the same way as the traditional trade union movement? It is complete rubbish.
§ THE LORD CHANCELLOR
I dunk that the "rubbish" is on the noble Lord's side. If he had been following my argument—and I beg him to try to read it if it is not sufficiently plain to him now—it was precisely to deal with that point. We believe that the principle of free association is the right one. That is a point of principle, and we are not, in the last resort, prepared to compromise that principle. There may be exceptional cases, but the principle is one which we believe should stand. We have tried to deal with the point about the "free rider" by imposing a financial penalty in the agency shop provisions; and it is precisely because the effect of that penalty—some of my noble friends may think it is unduly harsh—is to impose on the non-member what is virtually the full union contribution, for which he gets no return, 347 that we think the penalty will lead all but those with real conviction to join the union, at any rate in a climate of opinion, and that is the only reputable case where membership of the appropriate union is considered desirable by the workers themselves. I am afraid that there is the point at Which we split. I think it would be a waste of time on the part of noble Lords opposite to try to persuade us or for me to try to persuade noble Lords opposite.
§ LORD SHACKLETON
The hour is becoming late and the noble and learned Lord has spent the last quarter of an hour trying to do precisely what he said there was no point in either of us trying to do; namely, persuade each other—
§ unless he was saying it to justify his case. I do not propose to debate this further. I am bound to say that I regard his speech, which was beautifully delivered, as wholly irrelevant to the realities of the industrial situation in this country. When we come to debate the new clause we shall have to return once again to this. None the less, I appreciate the noble and learned Lord's very firm effort to produce a clear case for this Bill and this clause. We do not agree with it, and we shall therefore have to vote against Clause 5.
§ 1.34 a.m.
§ On Question, Whether Clause 5, as amended, shall stand part of the Bill?
§ Their Lordships divided: Contents, 109; Not-Contents, 27.347
|Aberdare, L.||Elliot of Harwood, Bs.||Mowbray and Stourton, L.|
|Abinger, L.||Erroll of Hale, L.||Napier and Ettrick, L.|
|Amherst of Hackney, L.||Exeter, M.||Nelson of Stafford, L.|
|Atholl, D.||Falkland, V.||O'Neill of the Maine, L.|
|Balerno, L.||Falmouth, V.||Pender, L.|
|Balfour, E.||Ferrers, E.||Rankeillour, L.|
|Bathurst, E.||Ferrier, L.||Reay, L.|
|Beauchamp, E.||Fisher, L.||Redesdale, L.|
|Belhaven and Stenton, L.||Fraser of Lonsdale, L.||Redmayne, L.|
|Belstead, L.||Gisborough, L.||Rochdale, V.|
|Bessborough, E.||Glasgow, E.||St. Aldwyn, E.|
|Brabazon of Tara, L.||Glendevon, L.||St. Helens, L.|
|Bradford, E.||Goschen, V. [Teller.]||St. Just, L.|
|Brecon, L.||Gowrie, E.||St. Oswald, L.|
|Bridgeman, V.||Gray, L.||Sandford, L.|
|Brooke of Cumnor, L.||Greenway, L.||Sandys, L.|
|Brooke of Ystradfellte, Bs.||Grenfell, L.||Savile, L.|
|Brougham and Vaux, L.||Gridley, L.||Selkirk, E.|
|Buchan, E.||Hailes, L.||Selsdon, L.|
|Burgh, L.||Hailsham of Saint Marylebone, L.(L. Chancellor.)||Sempill, Ly.|
|Chelmer, L.||Somers, L.|
|Chesham, L.||Harcourt, V.||Strathcarron, L.|
|Clitheroe, L.||Harvey of Tasburgh, L.||Strathcona and Mount Royal, L.|
|Coleridge, L.||Hives, L.|
|Conesford, L.||Ilford, L.||Stratheden and Campbell, L.|
|Cottesloe, L.||Inglewood, L.||Templemore, L.|
|Cowley, E.||Jellicoe, E. (L. Privy Seal.)||Terrington, L.|
|Cranbrook, E.||Kemsley, V.||Teviot, L.|
|Cromartie, E.||Kilmany, L.||Thomas, L.|
|Cullen of Ashbourne, L.||Kinnoull, E.||Thorneycroft, L.|
|Daventry, V.||Lauderdale, E.||Townshend, M.|
|Denham, L. [Teller.]||Lothian, M.||Tweedsmuir, L.|
|Drumalbyn, L.||Lyell, L.||Tweedsmuir of Belhelvie, Bs.|
|Dudley, E.||McCorquodale of Newton, L.||Vivian, L.|
|Dundee, E.||Massereene and Ferrard, V.||Ward of Witley, V.|
|Dundonald, E.||Merthyr, L.||Windlesham, L.|
|Effingham, E.||Monk Bretton, L.||Yarborough, E.|
|Ardwick, L.||Gardiner, L.||Raglan, L.|
|Bernstein, L.||Garnsworthy, L. [Teller.]||Sainsbury, L.|
|Beswick, L.||Hamnett, L.||St. Davids, V.|
|Brockway, L.||Hoy, L.||Serota, Bs.|
|Champion, L.||Kennet, L.||Shackleton, L.|
|Collison, L.||Llewelyn-Davies of Hastoe, Bs. [Teller.]||Shepherd, L.|
|Davies of Leek, L.||Strabolgi, L.|
|Delacourt-Smith, L.||Milner of Leeds, L.||Walston, L.|
|Diamond, L.||Platt, L.||Wynne-Jones, L.|
|Donaldson of Kingsbridge, L.|
§ Resolved in the affirmative, and Clause 5, as amended, agreed to.
§ House resumed.