§ 2.57 p.m.
§ THE MINISTER WITHOUT PORTFOLIO (LORD DRUMALBYN)
My Lords, I beg to move that the House do again resolve itself into Committee on this Bill.
§ Moved, That the House do again resolve itself into Committee.—(Lord Drumalbyn.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD MERTHYR in the Chair.]
§ Clause 35 [Application to Industrial Court relating to procedural provisions]:
LORD CHAMPION moved Amendment No. 238U:
Page 27. line 19, leave out ("Industrial Court ") and insert ("Commission on Industrial Relations").
§ The noble Lord said: Here we begin to examine a number of clauses with the fundamental principle of which we are in some agreement. Not only is the Opposition in some agreement but the T.U.C. also is in some agreement with the fundamental principles embodied in these clauses. This is not to say that either the Opposition or the T.U.C. necessarily favour the way the Government are proposing to set about taking remedial action where procedure agreements are non-existent or defective—to use the words on the heading of the appropriate clause.
§ On the statement of the attitude of the T.U.C. to this Bill, the General Council of the T.U.C. said in March last that the T.U.C. has never suggested that industrial relations are entirely satisfactory or that the Government could not help to improve them. The trade union movement is in favour of industrial as well as social change, and the Trade Union Congress has persistently drawn attention to the need for improvements in the machinery and the content of collective bargaining. Anyone, from the Donovan Commission down, who has had occasion to look at the machinery of collective bargaining in industry will be only too well aware that the picture is a very patchy one indeed. In some industries employers and trade unions have nego- 218 tiated an elaborate machinery of negotiation which on paper seems to be perfection itself, and the only imperfect thing about it is the imperfection of the people who operate the machines. That cannot be a criticism of the procedural arrangements themselves.
§ In that category I would put the agreement of the British Transport Commission and the railway trade unions, an agreement covering negotiation from the station or depot level up through many stages to the topmost railway staffs national tribunal. That machinery of negotiation has been built up over a century of trial and error and gradually, as a result of experience, has been improved to its present high standard. That is not to say that there are not complaints from time to time about the slowness of its operation, but such delays as do occur are inevitable it circumstances in which appeals to higher bodies from decisions of lower bodies are possible, like the system of courts and appeal to higher courts, which are essential to justice. Delays are thereby caused, but the delays are a consequence not of failure of the system but, in so many instances, its very perfection.
§ On the other hand, there exist outmoded, outdated and inefficient procedural arrangements which are a hindrance to reasonable negotiations rather than a help. In this connection we must always have regard to the fact that perfect machinery in an industry in which the employer and the trade unions are continuously at loggerheads will never solve that industry's labour problems. Having said all that, I am bound to concede that the chances of securing good industrial relations are the better with efficient procedural machinery. That leads me and, I hope, the Committee, to examine the clauses which follow with a view to seeing whether they are the best that can be devised and, if not, what can be done to improve them.
§ The first Amendment we have put down to Clause 35 is one which seeks to leave out " Industrial Count " and replace those words by " Commission on Industrial Relations ". What is the procedure for the examination of negotiation arrangements in a given case under this clause? First, the Secretary of State, or the parties, or one of the parties, as defined in subsection (2) of the clause 219 makes an application through the Industrial Court. It seems that the Court, with the tasks imposed upon it by the terms of this Bill, will be continuously employed and under very heavy pressure. If the Secretary of State makes the application it will already have been through the mill of examination by him in consultation with the parties. If one or more of the parties make the application, the Secretary of State will have been advised of the intention and all the steps outlined in subsection (4) of the clause will have been taken.
§ All this will result in all applications, before they reach the Industrial Court having gone through a lengthy and pretty thorough examination. I should have thought that the Court would have very little option but to submit the application to the second stage; namely, that of the Commission. The Court's decision will almost invariably be automatic. If the Government accept our Amendment, one stage in the procedure to be followed will be cut out and the application will reach the Commission very much earlier than would otherwise be the case.
§ Throughout all the progress of this Bill up to this point we have stressed the fact that the weight of legal machinery which will bear so heavily on employer-employee relations is bound to be inimical to this relationship. If I were the Secretary of State I would go through this Bill with a fine tooth-comb looking for a way of reducing the legal institutions and procedures which have to be followed under the Bill with a view to their drastic reduction. We shall have bearing down on industrial relations, if the Bill goes through in its present form, the Industrial Court, the Commission, industrial tribunals, the Industrial Arbitration Board and the Chief Registrar, to say nothing of the ordinary courts of the land from which employer-employee relationships will not be wholly free.
§ In my opinion, to lessen that number of institutions would be wholly advantageous. This Amendment is not designed to cut out those institutions at this stage, but to remove one of them from one of the stages to be followed under Clause 35. Under the Amendment the application would go directly to the body best fitted by experience and 220 knowledge to decide whether the application should be entertained and the preliminary steps will already have been taken. This would result in a shortening of the proceedings leading to the formulation of proposals by the Commission. The question I wish to ask in moving this Amendment is: why not short-circuit the procedure by permitting the application to be made directly to the Commission and not having to go to the Industrial Court? This appears wholly reasonable. It would be an improvement in the Bill. I sincerely hope that we shall have a favourable reply from the noble Lord who is to reply to this proposal. I beg to move.
§ 3.6 p.m.
§ THE MINISTER OF STATE, HOME OFFICE (LORD WINDLESHAM)
It might be convenient for the Committee if I come in at this stage, but not to try to shorten the discussion. I think it might well be necessary to reply to detailed points, but Clauses 35 to 41 are not straightforward. They are designed to deal with a particular situation and, as the noble Lord, Lord Champion, has accurately described, a very carefully set out procedure is envisaged. In order to avoid the possibility of misunderstanding, it might be as well if I describe what this part of the Bill is trying to do and how it will work in practice.
The effect of this Amendment and of the whole series which are linked to it would be to remove from the Bill the special procedure which Clauses 35 to 41 provide to deal with particularly intractable problems in industrial relations. The Amendments would eliminate that procedure and revert to the present system under which a reference to the Commission on Industrial Relations can be made only when both sides agree. Both outside and inside Parliament a great deal has been made of the argument that Clause 35 could inflict damage on industrial relations in general and on the Commission in particular. I shall seek to argue that those allegations are without foundation.
The first point I make is that the provisions in Clauses 35 to 41 do not replace the present arrangements for voluntary references to the Commission. These have continued since the present Government came to office and the Secretary of 221 State has made additional references. In Clause 116 there is provision for the Secretary of State to make voluntary references to the Commission where the parties are willing. So this procedure supplements the voluntary procedure in the later clause to which I have referred. The Government have no intention of abandoning the present method.
The procedure set out in Clauses 35 to 41 is to meet a different purpose. This is designed, first, for use only sparingly to deal with the unusually intransigent situations in which the normal processes of industrial relations such as negotiation, conciliation, arbitration and so on have proved unavailing. Accordingly, the provisions of Clause 35 are very carefully drawn. The situations to which it applies are confined to those within a single firm or units of two or more closely associated employers who share the same procedural arrangements. We can discuss that further on Clause 41.
The problem must be one where the development and maintenance of orderly industrial relations is being seriously impeded or substantial amounts of working time repeatedly lost owing to the absence of agreed procedures or the existence of defective procedures in the sense of agreements the terms of which are disregarded. Situations of this kind are fortunately not common but when they do arise it is important that there should be some way of dealing with them. That is the aim, purpose and justification of this exceptional procedure to meet the exceptional case.
Let me explain how it will work. In doing so, I will, as the noble Lord, Lord Champion, did, go a little wider than Clause 35 because it will help to shorten our discussion on Clauses 36 to 41 which are consequential on it. Any trade union which is involved, or the employer or the Secretary of State, can apply. Before the employer or the trade union applies, subsection (4) of Clause 35 says that they must give the Secretary of State the chance to mediate and, where appropriate, to offer a voluntary reference to the Commission under Clause 116, but before the Secretary of State applies himself subsection (3) requires him to consult with the parties in exactly the same way. This means that, whatever the inadequacies, misunderstandings or other causes that may have provoked the problem, the 222 Industrial Court will not have any role under this clause before the parties have had a chance to come together, and if they cannot see a mutually acceptable solution to their difficulties, at least to agree on seeking expert advice from the Commission or in some other way. Only if they are too widely divided even for that will the Industrial Court become involved.
This is my first answer—I think it will continue in our debate—to.the noble Lord, Lord Champion, of bringing in the Secretary of State, of bringing it the manpower and productivity services of his Department, of bringing in his conciliators at the earlier stage to see whether they can prevent the procedure from going any further at all; and, secondly, to offer them the opportunity of a voluntary reference to the Commission on Industrial Relations, which can be done under Clause 116 without bringing in this procedure in Clause 35 at all. So at this stage the role of the Court is still very limited. It must satisfy itself that the situation is in fact one serious enough to qualify for the Clause 35 pi ocedure; and if it is, then the Court must ask the Commission to examine it and to recommend remedies.
The next phase is that the Commission should formulate any recommendations it makes—that is, having looked at the plant, having tried to find out what is going wrong—in such a way that they are capable of having effect as a legally enforceable contract. But that does not mean at this stage that they will automatically become legally enforceable. The parties will be free to negotiate about this under Clause 37, in exactly the same way as in the ordinary course of collective bargaining. The only difference will be that under Clause 37(3) the Commission will have a duty to promote and assist their discussions on its recommendations with a view to securing their acceptance voluntarily. If it succeeds, the Commission will accordingly report to the Court, and there under Clause 37(4) the matter will rest; the procedure will be extinguished and will come to an end.
But even should the Commission's expert guidance fail at this stage to get one or both of the parties to see sense, they still have one further chance. The Commission must report its findings and 223 its recommendations—what should be done to put the situation right—to the Court. Then, within six months any of the parties, but not the Secretary of State, may ask the Court for an Order imposing recommendations on both sides as a legally enforceable contract. So here again they have another six months in which to come to terms. Finally, before it makes the Order, the Court must satisfy itself that one is necessary to secure acceptance and observance of the Commission's recommendations. Then at any time after if one of the parties can satisfy the Court that the Order is no longer necessary, the Court may revoke it under Clause 40.
Let me repeat the assurance that has been given many times in the debates in both Houses by the Secretary of State and others, that the Government's aim is to strengthen the framework of collective bargaining by encouraging the proper exercise of responsibility both by managements and by unions; and, as I have shown, at every stage of the arrangements which this Part of the Bill provides there are opportunities for the voluntary adoption of procedures for settling disputes and grievances formulated under the expert guidance of the conciliation staff of the Department of Employment and of the Commission on Industrial Relations, so as to be, in the words of the Donovan Report, comprehensive, clear, effective and speedy.
Nevertheless, there are these problem areas which have to be faced up to if improvements are to be achieved. We are talking—I want to stress this again—about the particularly troublesome situations to which this Part of the Bill will apply, and these will inevitably include some where, despite the advice and expert attention and the other help I have described, irresponsible attitudes nevertheless endure. We can all agree, I think, with the Donovan Commission, and with the General Council of the T.U.C., to which the noble Lord, Lord Champion, referred, that sound procedures have a vital part to play in the reform of industrial relations; and we are confident that in most cases it will be possible to make the necessary changes by agreement. So this procedure is a last resort. It is where the parties are unwilling or unable to come together for this purpose.
§ 3.17 p.m.
§ LORD SLATER
I thought that when the noble Lord, Lord Windlesham, rose to reply to the speech of my noble friend Lord Champion he was rising to the occasion to say he was going to accept the Amendment. But what he has given is an exposition in regard to how effective the clause, as the Government see it, will be once it is brought into operation. and what the Government are attempting to do. The noble Lord made reference to the conciliation officers within the Department of the Secretary of State. When one looks at this particular clause and at the Amendment which has been submitted and is under consideration at the moment, I think the situation is this. I have always found that procedure is the root cause of the vast majority of problems inside industry to-day. I am more convinced than ever that if we had a better form of procedure many disputes would never arise. Up to now, I cannot see this Bill improving the situation. One of the difficulties, as I see it, is that the Government see procedure as being concerned simply with disputes, whereas really it is a two-way exercise.
Let me say to the noble Lord, Lord Windlesham, that if management want to introduce a new system of working or, for that matter, to have a change in the pattern of working, or a variation in the labour force, the procedure should exist to enable the workpeople affected to be fully informed. Joint consultation is one of the most important aspects of the progress in or ratification of any agreement that may be drafted and entered into as a result of talks, bargaining or negotiation. As I see it, it is to the benefit of an industry—no matter what type of industry it is—that such a principle should apply. If it does not apply the situation can lead only to suspicion and discontent. It has to cope not with just wages, but with a wide variety of problems. It is concerned with human problems. People working in industry will have at the back of their minds that any stepping out of line could lead them into court.
I submit that in dealing with these human problems the less recourse one has to the law the better. If I had to choose between being forced—and that is what this clause means—or making an application to the Industrial Court and the Commission on Industrial Relations, then 225 I would choose the latter. Provision is made, as I understand it, under Clause 3 that the Secretary of State consults first in relation to the parties who are seeking to make the application. But before such a stage is reached, I think it is only right and proper that the parties to the agreement should have consultation. How anybody can think, whatever type of conciliation machinery may exist inside industry, that by reverting to the Industrial Court before exploring all avenues good relations will come to pass, leaves me at a loss.
Whatever we do in the preparation of legislation of this nature, let us never forget that we are dealing with people. We all know that we do not think alike on many issues; nor do we act alike. Speaking personally, after much experience in negotiations, I have no room for disruptive elements. But even these can be contained when the right approach is made. One can appreciate that, if we are to have this type of legislation, some form of body must be set up and operated. But when the court is set up as it is in this Bill, then the ordinary individual becomes rather sceptical, and for different reasons. Rather than to allow such a Court to act, I should prefer the sentiments of the Amendment moved so ably by my noble friend. I could go on to develop the argument, but I will conclude by saying that, while the noble Lord made an effective reply to the speech made by my noble friend, I would still ask him, as representing the Government, to accept the Amendment.
§ 3.23 p.m.
§ LORD TAYLOR OF MANSFIELD
I think the noble Lord, Lord Windlesham, gave a reasonable explanation of what is in the mind of the Government. But did I understand him to say that the position in the event of a dispute between the parties has now been reversed? Did he say that. in the event of a dispute, any of the parties. instead of going initially to the N.I.R.C., will go to the C.I.R., who will then report to the N.I.R.C.? If that is what the noble Lord said—and I may have misunderstood him—that really is in conflict with Clause 35 of the Bill. Perhaps the noble Lord will clear that up when he comes to reply.
I support this Amendment. There is not a great deal in it, because it is only moving the onus of who shall decide on 226 the terms of the dispute, wehter it should be A or B. The reason why I support the Amendment is quite simple, and it is equivalent to the stand tint I have taken all the way through since the Second Reading of the Bill in y our Lordships' House. I think the proposition, so far as the establishment of the N.I.R.C. is concerned, is a profound mistake. No doubt the Government are doing it in all good faith and, from their point of view, for every good reason, but, as I say, I think it is a mistake. I have not believed, and I do not believe—and I do not think there is much chance of my chz.nging my opinion on this point—that the proposed N.I.R.C. is the body to improve industrial relations.
I want to make my position on this matter abundantly clear. I believe, and have done so for many years, that industrial relations are best left to those who know most about them, and in my humble view, that will not be the new N.I.R.C. The best people to deal with the intricate and delicate problems concerned with industrial relations are those who are in daily contact with them. I have said previously that in this sphere of industrial relations there is the vital element of human emotions. I do not believe that this proposed new body, the N.I.R.C., composed as it will be, will deal adequately and satisfactorily with this delicate problem of human emotions.
This clause, like so many clauses in the Bill, is putting on a pedestal the efficacy that the law will have in sweetening industrial relations. What has been revealed ever since we debated the Bill on Second Reading is that there is a difference between the two sides of the Committee. This is not to be regretted: a difference of opinion is a good thing; if the world was all sunshine it would be all desert. But it is obvious during our debates that there is this conflict of opinion between the Government and noble Lords on this side of the Committee. This is not to be regretted; it is not to be criticised. But the mere I hear of it, as I see it it is not only a. conflict, but at the moment an irreconcilable conflict.
The purpose of this Amendment, as I understand it, is simply this, that if in the opinion of the Secretary of State or any other party, as the noble Lord indicated, something has gone wrong with a 227 procedural agreement or any other kind of agreement, either party may bring the N.I.R.C. into the picture. The operative word, as I see it—and perhaps the noble Lord will give a little attention to this when he comes to reply—is "may ": the action of the Secretary of State is optional, not obligatory; he may do this, he may do that. I do not believe that this is the best way of resolving disputes of the kind that the Government have in mind in putting this clause in the Bill. I believe profoundly that the risk is, when a matter of dispute is brought before the N.I.R.C. with all its legal paraphernalia and setup, that all that they will be able to arrive at will be an imposed solution; and an imposed solution in circumstances of dispute in industry, as we all know, could well poison the atmosphere and do irreparable damage.
In the event of a dispute it would be much better to get an agreement between the parties. This is where I rather detect a shift by the Government in the light of what the noble Lord had to say, and, if I may say so, I enjoyed his observations on this particular matter. I am sure he agreed—it was implicit in what he was saying—that it is much better to get an agreement between the parties than to refer the matter to the N.I.C.I, too, agree with that.
May I, in conclusion, in supporting the Amendment of my noble friend say this about the C.I.R. I am sorry about one thing in the Bill, that the Government are seeking to alter the functions of the C.I.R. As it was laid down by the Donovan Commission, I thought it was an admirable subject, a great idea, something new in the field of industrial relations. In the short time that it has been in operation there is ample evidence of its willingness, of its capacity and of its success in improving defective industrial relations. With those few words, and thanking your Lordships for your patience, I have pleasure in supporting the Amendment.
§ 3.33 p.m.
§ LORD WINDLESHAM
I am grateful for what the two noble Lords who have spoken have said and for the concise way in which they have put their views. This bears out the comment made by the noble Lord, Lord Slater, just before the Committee resumed. This Amendment 228 and several others were tabled in the House of Commons and debated there very fully in Committee; some of the ground was covered again on Report when the new Clause 5 was debated. The noble Lord, Lord Slater. made the point that one must not become preoccupied, in considering this subject. with disputes. But this particular clause of the Bill does come into effect, of course, only where there is a dispute. It is quite clear in Clause 35 that this is a procedure which applies in a situation of dispute, and what is more, in a situation of serious and continuing dispute. In Clause 35(5) one of the criteria that have to be fulfilled is thatthe development or maintenance of orderly industrial relations in that unit has been seriously impeded, or there have been substantial and repeated losses of working time in that unit.The noble Lord, Lord Taylor of Mansfield, asked me the procedure in a dispute situation when either party made an application to the Court. He asked, could they go first to the Commission. As Clause 35(1) says, the procedure is that either party can make an application to the Court, but he must consult the Secretary of State before he does so, and at that point the Secretary of State offers his conciliation services. That is the meaning of the words at the top of page 28 in paragraph (a): and, secondly, towards the end of paragraph (a) noble Lords will notice that the Secretary of State may refer any question to the C.I.R. Therefore, at this stage he can refer to the C.I.R.. but only if the parties are willing, because the only power by which he can do it is under Clause 116.
If they are not willing, we then go further to the next stage, which is the mandatory reference, and that mandatory refernce can only be made by the Industrial Court. This touches on perhaps one of the central points here: that we do think it is desirable to distinguish between the C.I.R., which has the function of investigating and advising, and the Court, which has the judicial function. As I explained, and I do not want to go over the ground again, this is the special procedure for these exceptional cases. The criteria in Clauses 35(11 and 35(5) both have to be fulfilled. We are, therefore, thinking about a situation bad and where, after a time, one or both where industrial relations are consistently 229 of the parties will not agree to a voluntary reference. But, as I have explained, the procedure has been carefully evolved. It is somewhat complicated, but I think it is clear when it is studied. I think the best way to illustrate it is to liken it to a long straight road, well signposted, with several exits that can be taken by the parties if they wish to do so before they come to the final conclusion of a court order.
§ 3.39 p.m.
§ LORD CHAMPION
We realise that this clause is going to have a very limited application, or at least we would expect it to have a very limited application, and that it would apply only in those cases where clearly there was so much dispute and trouble between the parties that there is no other way of getting a procedure agreement. That, as I understand the noble Lord, is in fact the case. This Amendment was an extremely limited one, although it did call from the noble Lord a Second Reading speech on this part of the Bill. I am rather glad my noble friends did not make it; otherwise they might have been criticised in all parts of the Committee had they dared to do that. But I am going to say I thought it was justifiable. I hope later on that I shall be making a Second Reading speech on the next clause that I shall be dealing with, Clause 42, and I hope the noble Lord will enjoy it. I think his answer has been reasonably satisfactory and I therefore ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
LORD CHAMPION moved Amendment No. 238V:
Page 27, line 27, at end insert (" has been had by one of the parties").
§ The noble Lord said: I shall move this Amendment briefly. Its purpose is to make it a condition that, before an application can be made to the Court under subsection (1), recourse to industrial action must have been taken by one of the parties to the agreement. If paragraph (b) were left as it is, an application could be made to the Court even though the parties to an effective agreement had honoured it. I hope that this brief explanation will enable the noble Lord to reply. I think that there is some substance in this Amendment, but I hope that he will give me a reply without too much 230 of a Second Reading speech. I beg to move.
§ LORD W1NDLESHAM
I take the comments of the noble Lord in the friendly spirit in which they were intended. I think your Lordships will agree that when we start on a new Part of the Bill it is helpful to explain what it is all about and how it works. I will try to be as brief as the noble Lord in replying to his Amendment, which, alas, whether intentionally or not, is not so innocent as it looks. Of course, this procedure applies both to employers and to unions. Let us look at the wording of paragraph (b). A union can hardly impose a lock-out, while an employer cannot take strike action, so both are a comfort. But the effect of this Amendment, of inserting the words proposed by the noble Lord, would confine the operation of paragraph (b) to the parties to a procedural agreement, to the employers or the union or some other union if it became involved, but would exclude unofficial industrial action—wildcat strikes—where called without the authority of one of the parties; for example, without the authority of a union which was party to the agreement. Therefore it precludes unofficial strike situations, which many of these would be, and this would nullify the purpose of this subsection.
§ LORD CHAMPION
I am bound to accept the explanation which the noble Lord has given. This clearly has a limited application and having regard to that, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
LORD CHAMPION moved Amendment No. 238W.
Page 27. line 28, leave out from ('action ") to end of line 29.
§ The noble Lord said: This is another Amendment which I can move briefly. Its purpose is to cut down the time of an application which could he made where there lead not been strike action because of the definition of "regular action short of a strike ", which could include bans on overtime where there was a contract to work overtime. This could widen the field for the Secretary of State or the employers applying to enforce agreements. Paragraph (b) clearly ought 231 to have the limitation that I am proposing placed upon it. It would do something, to which I can imagine the noble Lord may object; it would narrow the field here. But I think that in the circumstances this would be justifiable. I beg to move.
§ LORD WINDLESHAM
I do not think that there is a great deal between us here. The words " irregular industrial action " have a specialist meaning and are defined in the Interpretation Clause, on page 116. This refers back to Clause 31(4). which sets out the types of action included within these words. We believe, on the whole, that where we are talking about the exceptional procedure under Clause 35. it is better to be specific and refer to lock-outs, strikes or irregular actions short of a strike—which term also has a specialist meaning in the Bill—rather than use the general phrase of industrial action. This is one of the gateways, together with subsection (5), which will start off this procedure and we think it better to specify these one by one.
§ LORD CHAMPION
We have got what I was seeking. an explanation of this point on the Record, and I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 3.46 p.m.
LORD CHAMPION moved Amendment No. 238X:
Page 27, line 30, leave out ("or intentions").
§ The noble Lord said: The purpose of this Amendment is to remove from paragraph (b) of subsection (1) the word " intentions ", because as the clause is now drafted, even if the industrial action had not breached an agreement, an application could still be made. On the one hand, the Government are making agreements legally binding, and for this they have exemption clauses like Clause 32; but now in this clause they are attaching importance even to the intentions that lie behind an agreement. It is always possible, I suppose. to say that certain intentions are implicit in any agreement. Perhaps I do not know as much about that as I ought to do; but I am not a lawyer. What I do know is that constantly in Parliament, in relation 232 to Acts of Parliament and to Bills, we are reminded of the fact that what matters is what is in the Bill; not what the Minister responsible for the Bill said, and not what possibly were his intentions. That seems to me to make good sense, because eventually Acts of Parliament have to be interpreted by people who cannot see into the minds of Ministers who introduced them. And in the cases that we have here under review, people cannot hope to see what were the intentions of the parties who entered into the agreements. Surely what has been found to be the case in relation to Acts of Parliament must also apply to agreements.
§ It could be argued that to work in here the suggestion that a court should have regard to the intention of those who made an agreement which is legally enforceable would serve to improve a legally enforceable agreement. because a great deal of thought would have to go into it, to try to ensure that the wording would stand up to being interpreted in a court. Perhaps the noble Lord may put a different gloss upon the words. which may help me in my consideration of whether or' not to withdraw the Amendment. But certainly I do not like the paragraph in its present form, which imports into a Bill that is to become an Act of Parliament that somebody's intentions must be taken into consideration. I beg to move.
§ LORD SHINWELL
Would the noble Lord in replying explain the distinction between " terms " and " intentions "? In my interpretation, subject to any correction by the noble Lord, " terms " is a term which is more precise: it relates to facts. But " intentions " would seem to indicate something rather different. There may be something in the minds of the Government about this, and I think we ought to know what is behind it.
§ BARONESS GAITSKELL
When the noble Lord replies from the opposite Benches, would he use his best endeavours —another favourite phrase of the Government in this Bill?
§ LORD LEATHERLAND
This is an old hobbyhorse of mine. I recollect addressing your Lordships about a year ago during the course of one of the Matrimonial Bills before your Lordships' 233 House, on which occasion it was proposed that the learned judges, in interpreting Acts of Parliament, should have the assistance of the relevant paragraphs in the report of the Law Commission; and I remember arguing at that time that in my view it was wrong. I was overruled, of course—I go through life being overruled—but I recalled that on many occasions in my younger days, when reporting cases in the courts, I had heard learned judges say, " We are not concerned with what the Minister had in his mind when he introduced this Bill; we are not concerned with what he said on the public hustings; we are not concerned with what he said in the House of Commons. We are concerned with the words that are in the Act of Parliament." The learned judges then proceed to try to the best of their ability to interpret the actual words that are in the Act of Parliament. Sometimes one judge can take one view, and on another occasion another judge can take another view; sometimes the Appeal Court overrules them. But if we are to depart from the actual wording of a statute we shall have absolute chaos when it comes to the interpretation of that statute.
§ LORD BURNTWOOD
Last night when we were dealing with Clause 32 I tried, unsuccessfully, to move an Amendment which would allow for the words " or construe " to be embodied in that clause, so that the court might exercise their right to place their own construction on the circumstances surrounding the signing of the agreement. Now it is proposed by the Government to allow the intentions to be taken into account, which I suggest is just as hazy a definition as was argued against last night. Where is the consistency in this?
§ LORD WINDLESHAM
In the cases we are discussing either there is no procedure agreement in existence, or there is a procedure agreement in existence which is defective and which is not working satisfactorily. Where this is the case I think noble Lords opposite with experience in the trade union movement would agree that it is often because the agreement itself is sketchy and inadequate. It may be the result of long custom and practice. Even in some quite large undertakings employing substantial numbers of workers some procedure agree- 234 ments are little more than a few notes scribbled on the back of an envelope; and in another place the Secretary of State pointed out that many procedure agreemeats in British industry are wrongly phrased and consequently are inadequate in practice.
One of the recommendations of the Donovan Commission was that procedure agreements should be notified to the Department of Employment and Productivity, and since the implementation of this recommendation some 277 companies have been invited to notify their procedure agreements. These have been receiving careful study. I have inspected a cross-section and they vary from extremely full and clearly woreded documents in booklet form which are handed to each employee, to three sentences on a half-sheet of paper merely confirming what has been agreed over a period of years by custom and practice. Therefore, where there is a particularly inadequate procedure agreement—and this is the sort of situation which has been envisaged in this part of the Bill—it may be necessary to look to the intentiors of the parties to establish some crucial matters, such as what groups of employees it was intended that the agreement: should cover, and employees working in which parts were regarded as being covered or not being covered.
The noble Lord, Lord Shinwell, asked me about the meaning of the word " terms ". When the Bill refers to the terms of an agreement it refers to the contents of the agreement. When it refers to the intentions, the reference i; to what the parties intended at the time. The noble Lord, Lord Leatherland, spoke of the courts, but of course where the courts have something that it is difficult to construe in terms of wording, they do have to look at the intentions. The parallel I would offer to the Committee is the example of wills, where a testator produces a very badly drawn up will which is difficult to interpret and the court have to try.to look at the intentions behind it.
§ LORD LEATHERLAND
May I interrupt the noble Lord on that point? I am sorry to be so discourteous, but wills are not really a relevant comparison. The man who made the will is dead, and you cannot get at him to ask him. 235 " What were your intentions? Was the phraseology defective or not? " In this case the men are all alive and still working in their factory, so I hardly think that to compare this with the interpretation of wills is justifiable.
§ LORD WINDLESHAM
I accept that, of course. There are differences in any analogy that is offered, but I hope noble Lords will try to follow the argument here because I think it is a point of substance and importance. The parallel is valid to this extent, that where there is a document which is in such general terms, which is so unspecific that it is really not possible from the wording to say what it means, one may have to look at the intentions. This brings me to the point raised by the noble Lord, Lord Champion, who spoke of interpreting Acts of Parliament. We know how much trouble is taken with the drafting of Acts of Parliament. The whole art of draftsmanship is to be precise, to remove any possibility of doubt; but in many procedure agreements, and particularly those which are giving rise to the situation which we are envisaging in this clause, there are literally three sentences.
Therefore I think it is wise to leave in the fact that the court can look to the intentions as well as the content of an agreement. But we must bear in mind that some of these procedure agreements can be oral. This was discussed at considerable length last night. Collective agreements may be oral, they may be arrangements of custom and practice, and here again it would be wise to inquire into the intentions of the parties if the words they have used—perhaps many years ago—to express themselves were not clear.
§ LORD SHINWELL
I am anxious to be convinced, because I do not think we ought to make heavy weather of some of these amendments, but I am bound to say that the reply given by the noble Lord is not convincing. Perhaps he will recall his original argument. My interpretation of what he said is that it is likely that an agreement may be inadequate in character. But then he proceeded to define the meaning of " terms ", and he said that " terms " means the content of the agreement. If the content of 236 an agreement is inadequate, then possibly there can be no agreement about it. At some time one party or another will object to the agreement because of its inadequacy. Therefore why put in the word " intentions "?
In my view, what the noble Lord should do is to withdraw the word " terms " and leave in the word " intentions ", because then it is wide open: It provides for inadequacy it provides for something that is precise, or something that is imprecise. But to have both " terms " and " intentions " appears to me to involve a contradiction, and may give rise to a great deal of confusion. I am not sure that the noble Lord is convinced about this matter himself. I see he is nodding his head, so perhaps he will now give a reason, because so far none has been forthcoming.
§ 4.0 p.m.
§ LORD CONESFORD
I should have thought that if the words were left as they stand at present, " terms or intentions of that agreement ", they would be inerpreted as meaning the actual terms or intentions, that were inevitably involved in the terms and could be deduced from the terms. I should not have thought that the word " intentions " would import something that could be derived from some other source than the terms. " Terms or intentions " is a very common legal expression, but I think the noble Lord, Lord Silkin, will bear me out when I say that the obvious way in which these words will be construed—I am not staying there is anything wrong with them—would be that terms or intentions are used in this sense, namely the actual words or what is involved in these words and can be deduced about intentions.
§ LORD LEATHERLAND
Far be it from me to argue with the noble Lord. Lord Conesford. He said that " intentions " is derived from the terms, therefore the terms include the intentions. If that is so, why complicate the situation by having the word intentions " in the measure?
§ LORD CONESFORD
With respect, I do not think it does complicate it; rather, it completes it. " Terms or intentions " is a very natural expression for conveying the meaning that I described
§ LORD CHAMPION
The noble Lord, Lord Windlesham, said, rightly, that sometimes these things—these documents, if they can be called documents, that set out the procedure agreements—are very sketchy and very inadequate. This gives point to the argument we have been having throughout the last three clauses of this Bill, about the difficulty of the language used. As I see this clause, these words may have to be interpreted, in the first place, by one of three parties, or more.
§ LORD SHINWELL
May I interrupt my noble friend? I am sorry to interrupt but I think I am on a point of substance. Now that the noble and learned Lord the Lord Chancellor has arrived, he may be able to explain the matter more adequately and to satisfy the Committee. Will my noble friend direct the attention of the noble and learned Lord the Lord Chancellor to the subject, in order to obtain what might be called a high, legal interpretation?
§ LORD CHAMPION
If the noble Lord, Lord Shinwell, wants to ask the noble and learned Lord the Lord Chancellor something on this point I wish he would direct the question directly to the noble and learned Lord who is, of course, always capable of giving adequate replies, sometimes at very great length, to the points put, from this side.
I was saying before my noble friend interrupted me that three parties initially may very well have to interpret the word " intentions ". As I understand it, one party might be or would he the Secretary of State in some cases, it may be the employer, it may be a trade union, it may be more than one trade union involved here. I think that difficulties will inevitably arise as the result of leaving the word " intentions " in here. Unlike my noble friend Lord Shinwell, I prefer " terms "' to " intentions ". I think it is a little clearer. It would he more easily understood and easier to interpret. I do not want to continue this discussion overlong. This is a minor Amendment. But I shall want to study carefully what the noble Lord has said between now and the Report stage, because if I find on examination—and one cannot always get all that one would like out of an argument across this Table—that the answer 238 does not satisfy me on this point, I shall have to return to it on Report. in the meantime—
§ 4.3 p.m.
§ LORD SHINWELL
I am not interrupting. If my noble friend has completed his argument, I have been invited to direct the attention o the noble and learned Lord the Lord Chancellor to a somewhat, hat confusing point. May I now take the opportunity and, with great respect to the noble Lord, Lord Windlesham, who perhaps has not got the legal expertise that is in the possession of the noble and learned Lord the Lord Chancellor, direct the noble and learned Lord the Lord Chancellor to the point? Would he note in paragraph (b) that the argument is about the words on line 30 " terms or intentions ".
Now the argument that has been produced so far is that we should either rely on the word " terms " or on the word " intentions ", but that the word " terms " is preferable. We understand from what the noble Lord, Lord Windleshiam, said in the course of his argument that the difficulty is that an agreement may be inadequate in character and therefore the term " intentions " is required in order to ascertain whether there is something behind the application. I venture to suggest to the Committee that we can either have the word " terms ", which is precise, or we can have the word " intentions ", which is imprecise but is otherwise of a wide-ranging character into which anything could be injected. That is the position as I understand it, and I wonder whether the noble ant. learned Lord the Lord Chancellor can remove any such confusion as exists in my mind, if not in the minds of your Lordships?
§ THE LORD CHANCELLOR (Lord HAILSHAM OF ST. MARYLEBONE)
I do not think there is any confusion in the noble Lord's mind.
§ LORD SHINWELL
Do I urderstand the noble and learned Lord, the Lord Chancellor to be saying that there is no confusion in his mind, or that there is none in mine?
§ THE LORD CHANCELLOR
I thought there was none in the noble Lord's mind. I would add for good measure there is none in mine, either.
§ LORD SHINWELL
Well, this is a new development. The last thing I would wish to do is prolong the argument. I have established general assent to my submission. Questions have been directed to the noble and learned Lord the Lord Chancellor in the course of our deliberations, and in the knowledge of noble Lords he has been called upon to interpret the legal aspects of this proposed legislation. Now, when he is asked a simple question arising from what is confusion, at any rate in my own mind, he is convinced that there is no confusion in my mind and that, for him, is an adequate reply. If I may say so, that is treating the Committee with contempt and we ought not to tolerate that kind of behaviour. Indeed, I would hardly have expected that kind of behaviour from the noble and learned Lord, the Lord Chancellor. Or do I understand that he is not prepared to answer a question when it is put to him? If that is the position, what is the use of proceeding any further?
I do not know whether what I have said would persuade the noble and learned Lord the Lord Chancellor to reply. If not, I shall have to consult the Law Lords who sit on the Cross Benches, as I understand the noble and learned Lord Chancellor is ready to do, because in the course of deliberations last night he offered to consult with the noble and learned Law Lords. I shall have to have recourse to that process in the absence of any reply from the noble and learned Lord the Lord Chancellor. Does he wish me to proceed? If not, I will sit down and await his reply.
§ THE. LORD CHANCELLOR
I have replied to the question. The noble Lord asked if I would remove any confusion in his mind. I said on this occasion I thought there was none.
§ LORD CHAMPION
The noble Lord, Lord Shinwell casts a very pretty fly. The noble and learned Lord has not apparently risen to it in the way the noble Lord, Lord Shinwell, would have liked. We can cast a fly. We cannot ensure that a salmon will rise to it. I was coming to the end of what I had to say and I was going to ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.240
§ 4.10 p.m.
§ On Question, Whether Clause 35 shall stand part of the Bill?
§ LORD CHAMPION
This clause decides the principle, and the following clauses up to 41, as the noble Lord, Lord Windlesham, has said—or at least I understood him to say—are the machinery clauses stating how the Court, the Commission, the Secretary of State and the parties are to act in pursuance of the principle. The Government have included these clauses ostensibly in furtherance of the unexceptionable principle, which is to ensure that there shall exist within all suitable industries and services adequate procedures for the remedy of grievances and the conducting of negotiations on salaries, wages, conditions of service and other comparable matters. There is running under the surface of all that a belief—probably quite mistaken—that there is a lack of suitable machinery and negotiating procedures, which results in the short but often costly unofficial stoppage of work.
I must, however, qualify that by saying that in some cases the very slowness with which an otherwise suitable procedure agreement works results in frustrations and annoyances which, coupled with other frustrations, lead to short stoppages, usually at local level. Seldom, if ever, is there a strike at national level which could be laid at the door of procedure failings. As an instance of this, we have seen recently a short stoppage of work at a locomotive depot arising out of altered schedules for working the summer train services. The machinery of negotiation on the railways, as I told your Lordships last night and again to-day, allows for discussion of this kind of matter at local, departmental level—that is, at the locomotive depot level. Appeal from that body can be made to the regional council, which is the next stage up; and there may be a further appeal from that body to the highest level. Such a system of appeal is perfect on paper; but the anger of the drivers in that case was immediate, because they knew full well that by the time they could have gone to appeal the summer schedules would have been replaced by winter ones, and in the meantime they would have had to work objectionable hours.
241 I merely use that as an illustration of the fact that excellent procedure machinery cannot be expected to solve the very many difficulties that arise where, in the words of the clause, there has been—recourse to industrial action (whether consisting of lock-outs, strikes or irregular industrial action short of a strike) contrary to the terms of intentions of that agreement.When it all comes down to brass tacks it is human relationships, tolerance with one another, and understanding of each other's difficulties that really comes into industrial relations and all the rest of it. Many of the industrial relations problems that beset industry to-day arise not from a lack of negotiating machinery but from the difficulties inherent in large-scale industry, where the top management is remote from the employee. This happens a great deal in large industries, as I know. I started my railway career with the Taff Vale Railway—a small railway. It is true we had troubles from time to time, but not as many as there would have been had we had the same sort of conditions as applied in the bigger regions. For example, when I was employed on the Taff Vale Railway I knew the manager, and the manager knew me by name. That is always a great help. When the Taff Vale was merged into the Great Western Railway we thought not in terms of " Mr. So-and-So at Cardiff " but " them so-and-sos up in Paddington "—and our thoughts about them, and about the whole system, were entirely different from when we were thinking about the man who was our real boss and a man whom we knew.
This is inevitable in large-scale industry. What I am saying is that no one should fall into the error of imagining that by passing a law you will automatically cure industrial ills. It is one of the pecular beliefs of legislatures and political parties—and certainly my own has never been free from it—that if you pass a law you have solved a problem. In many cases the only problem you have solved is how to frame a law, and not how to change what needs changing, namely, human behaviour. All the machinery that we are trying to create, pretty well throughout the whole of this Bill, is something that I think is bound to fail unless we can somehow get parties to agree without having recourse to the law. Although I am in agreement with 242 the best of this principle behind Clause 35, I rather think we ought to register our protest at trying to enclose within a legal framework something which ought to be left outside it. Unless I get a very satisfactory reply from the noble Lord, Lord Windlesham, I shall have to ask the Committee to divide.
§ 4.17 p.m.
§ LORD POPPLEWELL
The noble Lord, Lord Windlesham, in opening the debate on one of the Amendments, referred to the fact that Clause; 35 to 41 were very complicated and he went on to give, as it were, four important provisions. He said, first, that they were aimed at dealing with the particularly intractable difficulties that arise; secondly, he stressed that they did not replace the present voluntary arrangements; thirdly, that they were designed to be used very sparingly; and fourthly, that a 3reat deal of time was lost under present conditions. He then proceeded to hinge the whole of his arguments relating to this clause on those four important principles.
It seems to me that his observations indicate the real position of the Government, which is that these clauses do nothing else but express the Government's fear—a fear not based on any facts but something which is inherent in framing many other clauses of this Bill —that the unions may refuse to sign enforceable agreements. This clause, as indicated by my noble friend Lord Taylor, gives power to the N.I.R.C. to force the unions to adopt procedural parts of agreements, as defined and crawn up by the Commission on Industrial Relations. Here is the real background of this particular clause, and it will result in an attempt to place impositions on the parties concerned, and, as such, will be resented by the people who are expected to make it work. If you impose something on a group of individuals without their free consent, you at once create difficulties.
The noble and learned Lord, Lord Donovan, in his Report, devotes a whole chapter to this particular position, and I should like to quote from it. He says:A disputes procedure must be operated by the two sides of industry working together ".Those are very important words. The two sides of industry work together if they have accepted the procedure. They 243 cannot be expected to make the procedure work unless they have freely agreed to do so. If either side rejects it, it is likely to remain a dead letter. To impose a procedure on which two sides have failed to agree would be tantamount to using a kind of compulsory arbitration in order to compel the parties to cooperate in a settlement of grievances, and to do so through the force of law. But that is one of the things which no law can do. It cannot make people co-operate if they do not want to do so. Such imposed procedures are almost certain not to be used. This is the Report of the Donovan Commission. They spent all those years investigating, they interviewed some 430 witnesses of various kinds, knowledgeable in industry, knowledgeable in the needs of industrial relations, and those are their observations in consequence. I think this highlights the fact that this particular clause is nothing but a fear expressed; in other words, it is like members of the Primrose League, who fear that there are Communists under every blade of grass that grows. I think this is the type of procedure and this is the line of approach here.
The noble Lord, Lord Windlesham, said that there was no desire or intention to replace any of the voluntary arrangements at present existing in industry. They are words spoken in this House, but they are not contained in the Bill. If it was expressed in this Bill that the present voluntary arrangements with the trade unions must take place before this particular clause was applicable, there would be something in the noble Lord's observations. But just the expression of it in this House, as has been indicated on so many occasions, is not law and, therefore, it carries no weight. I appreciate the words of the noble Lord, and I think they were right, but I am surprised that they have not been embraced in the Bill. This clause ignores completely something to which we have referred so often; namely, the Bridlington Agreement, which was arrived at between the respective trade unions. It gives no credit at all to the number of disputes which have been settled quite amicably within the trades unions themselves, but it brings in this very heavy sledgehammer to crack something which has been done so amicably in the past.
244 We have asked repeatedly for statistics to be supplied to us regarding the number of disputes which have arisen in consequence of procedural difficulties, and we have been told each time that there are no such statistics available, and it would be too costly to try to obtain them. If you want to justify changing the law in order to enforce something which is classed as an agreement which cannot possibly be an agreement; if you are going to force something on to respective parties within this human relationship in industry which has not already been ironed out between them, I think you are going to have considerable difficulty. The N.I.R.C. will have complete power to refer these matters to the C.I.R., who would then decide the issue as to which one of the unions would have to be recognised as the bargaining agent, and after following the usual procedure the N.I.R.C. could, on application by the employer, enforce their recommendations on the industry. Of course, it would have to follow the ballot and the recognised procedure, but they would be able to enforce it, and any challenge of their judgment by any organised group or by individuals would constitute an unfair action, according to my interpretation; and an unfair action may of course be liable to the full penalties involved in other parts of this Bill.
I think this development of a new chapter in English law, under which a person can be held legally responsible for an agreement to which he himself has never agreed, is very dangerous indeed, and, as I have indicated, the Donovan Commission gave considerable thought to this type of thing. I suggest that the Government ought to have another look at this point, because it brings in something which I think is entirely unnecessary. It is bringing something into industrial relations which can prove—to use Lord Windlesham's own words—a very intractable position, which can have very serious consequences. particularly when ultimately action works itself down through the machine. The principle becomes established on one side or another, and once that argument on principle develops we all know the serious consequences to which ultimately it may lead. If the noble Lord will not give the assurance that he will have another look at this matter, I wholeheartedly support the suggestion of my noble friend 245 Lord Champion that we should divide and reject this clause.
I wonder whether I may ask the noble Lord to tell me how this would apply in a particular case which I have in mind? There is in the engineering industry what is known as the York Agreement. This agreement is admitted on all sides to be unsatisfactory. According to the latest information, both sides at the moment are quite unable to agree what might be put in place of it. Let us assume that nothing is put in place of it. How precisely would those terms apply to the whole of the engineering industry and the agreement which exists at present, which is to be terminated anyway, between the Engineering Employers' Federation and the unions involved? It is an interesting point as to how that would be dealt with, and whether it could be dealt with by these means. I can imagine a great many problems arising if somebody tried to apply this particular section of the law, if it becomes the law, to the whole of the engineering industry.
§ LORD HANKEY
I think this clause is excellent and I hope that it will be adopted. We have heard a great deal about existing procedure agreements in the railway industry. Speaking as a customer, I am no longer able to use the early trains to London from Kent to catch an aeroplane because so often the engine drivers do not turn up, the guards are not there or something absurd happens and I have to take my car to London Airport, which I do not like. When one reaches London Airport, very often the loaders do not load the aeroplanes. All those things are in defiance of a procedure agreement.
I should like to raise two small points. First, I suggest that it is important that the settling of procedures under this clause, when it has to be applied, ought to be done slickly and should not involve endless delay, which causes great annoyance to people on both sides of industry. I hope that the code of industrial practice may be so drawn as to provide advice to the National Industrial Relations Court and the other bodies concerned, including the Commission, drawing attention to the importance of not evolving enormously complicated procedures such as we in England love whenever we get involved in anything legal.
246 Secondly, arising out of what was said just now, I suggest to the Government that it would be a good thing to insert in the definitions in Clause 158 a reference to Clause 35(6) saying that for the definition of a " unit of employment " this particular subsection should be referred to, because it might not always be obvious to people when reading subsequent clauses that the definition is te. be found in that part of the text.
§ 4.33 p.m.
§ LORD WINDLESHAM
I am sure that right honourable friends will take note of those last two points. If I reply somewhat briefly, it is because I made my speech on the Question that the clause stand part on the first Amendment, so I shall try to avoid repeating myself.
I thought that the noble Lord, Lord Champion, touched on one of the fundamentals of the debate on this subject, which goes very wide indeed, when he spoke about the personal relations between the employer and the employee in the context of his own early industrial experience with the Taff Vale railway, a name very well known in trade union law. The atmosphere in the workplace is of paramount importance; we can agree that all of us know that to be true. That is affected by the way in which disputes are resolved, because in any industrial relationship then; will be friction. There is bound to be friction in any human activity from time to time, so the way in which these disputes are resolved is of very great importance, and hence the need for procedures which have been agreed between the employer and the employees as to how they should set about it.
In many cases the atmosphere will be good and constructive and there are agreed procedures which are honoured, accepted and fulfilled by both sides, but unfortunately, in other cases that is not so, and as we know from our own experience there are instances where there is suspicion, resentment and ready recourse to unofficial industrial action. I do not say that that is true over the whole of British industry, but there are instances where it occurs.
What did the noble Lord, Lord Donovan, have to say about that in his Royal Commission Report? Incidentally, it is noteworthy that in the first sentences of the section from paragraphs 500 to 518 247 the concern is with unofficial strikes. I quote from paragraph 500:It is imperative that the number of unofficial and especially of unconstitutional strikes should be reduced and should be reduced speedily.That was three years ago.This is not only a serious, it is also an urgent problem, and our recommendations are designed to deal with it …501. The problem is peculiar to this country. It has been created by a number of factors which are analysed in Chapter III. The most important among these is the inadequacy of our collective bargaining system, and especially the lack of clear, speedy, comprehensive and effective procedures for the settlement of grievances and other disputes such as exist in other countries.The noble Lord, Lord Popplewell, quoted from the Report of the Royal Commission, but without wishing to mislead the Committee I think that he did not convey the full flavour of the recommendations of the Royal Commission in that respect. What the Royal Commission said was that many of the present procedure agreements in the form in which they are worded were incapable of being enforced and that therefore there was a need to reform procedure agreements. They then said—and I quote the words:Once these reforms are implemented there will be a new situation.The recommendations were that, once they were capable of being enforced legally, procedure agreements would fit into a system of collective bargaining; they could be legally enforceable in certain very exceptional situations. That was the first thing. Secondly, there was a recommendation that there should be a case by case approach—and that answers the noble Lord, Lord Pargiter, who asked me about the York Agreement of the engineering industry. The answer is that the procedure contained in Clauses 35 to 41 cannot apply to a whole industry; it applies to a unit of employment. There is a somewhat special case of what is called the composite unit, which we shall come to in Clause 41, but it does not apply to the whole of an industry.
§ LORD POPPLEWELL
As the noble Lord, Lord Windlesham, mentioned me, in saying that I did not quote in full the Donovan Commission's Report, may I say that I think he is guilty of an evasion and a distortion—probably in- 248 advertently—because the Donovan Commission Report did not in any way recommend this type of new law. What Lord Donovan was referring to, and what the trade unions have accepted all the time, is that it is necessary for some change to take place, but not the institution of new law as suggested in this particular way. Also, the noble Lord referred to the unofficial strikes. This particular clause in no circumstances whatsoever deals with a spontaneous unofficial strike that has developed and will continue to develop, even when this law becomes an Act.
§ LORD WINDLESHAM
The noble Lord, Lord Popplewell, is mistaken on both those points. This clause deals with unofficial disputes. It will deal with more unofficial disputes, in my view, in present circumstances than with official disputes. I dealt with this on an earlier Amendment, and I have the Report of the Royal Commission before me. We speak in the presence of the Chairman of the Royal Commission and I shall not go through it at length, but I advise the noble Lords to look again at paragraphs 512 and 514 and to read what is contained therein.
I was making the point that the Royal Commission felt that procedure agreements should only be legally enforceable in exceptional circumstances: that there should be a case by case approach; that they should be legally binding only when a need for doing so had arisen and been proved; that the jurisdiction should be vested in the Industrial Court—a direct quotation from paragraph 512—and that before applying to the Industrial Court the Secretary of State should consult the parties and the Commission on Industrial Relations. That is precisely what Clause 35 does. I do not think we should prolong our discussion on this point.
§ LORD DIAMOND
Am I not right in saying that the Industrial Court the noble Lord was quoting, and giving noble Lords the impression that Lord Donovan's Commission was supporting it, was not in fact the N.I.R.C. at all?
§ LORD WINDLESHAM
No; it was the present Industrial Court, which continues under the form of the Industrial Arbitration Board under this Bill. The term " Industrial Court " which we use is of course a reference to the N.I.R.C.
249 The noble Lord, Lord Popplewell, did not convey the full flavour of the Royal Commission's Report, I do not wish to argue that what is contained in the Bill is exactly what is contained in these recommendations. That is not the case I make. What I say on the central point is that where the parties have been unable to come to agreement, after all these attempts which I have described, step by step—conciliation by the Secretary of State, conciliation by the Commission on Industrial Relations, and attempts to bring the parties together voluntarily—have proved unsuccessful at the end of that road there should be some way of enforcement. The Royal Commission and the Government are on common ground there, and it is for that reason, among the ones that I have already given in the debates we have had on this clause, that I commend this clause to the Commitee.
§ 4.42 p.m.
§ LORD CHAMPION
I am not quite clear about the reply of the noble Lord to my noble friend Lord Pargiter. My noble friend asked some questions about an industry as a whole. The noble Lord Lord Windlesham, in reply has pointed to the use of the words " unit of employment " which is contained in the clause. Subsection (6) says:In this section and in sections 36 to 40 of this Act ' unit of employment' means an undertaking or part of an undertaking.Procedural agreements almost invariably apply to the whole of an industry, and not to a small part of it. I should have thought it rare for a tiny section of an industry to enter into some agreement which clearly ought to have been entered into by the industry as a whole. I think that there is something in this point. I am not really conversant with the York agreement, which apparently was entered into a long time ago and has long since ceased to be really workable and, indeed, ought to have been changed some time ago.
I think that if you are going to attempt to cure troubles in small sections of the industry, you have in some cases to take the industry as a whole; it is necessary to have a procedural agreement covering the whole of the industry, and not just a tiny part of it. This arises out of my own experience within an industry, where 250 our procedural agreements are arrived at nationally and not in little bits and pieces to cover little bits and pieces of the industry.
The noble Lord, Lord Hankey, told us about the difficulties that he I as getting to and from the airport; and he said that these ware a result of breaches of the procedural agreement. But he then went on to support the clause. I ca mot quite understand this. There is a procedural agreement in being and apparently it is a good one, but it is breached at that level. Does he think that a change of the procedural agreement would give him the satisfaction that he wants? The simple fact is that you have to change the relationships that exist within the industry and try to ensure that those little difficulties are smoothed out.
The second thing I would say is that the noble Lord is well know:1 outside this country: he held an important post in a European context. The words that he says may well be heard outside this House and outside this country. I do not think he does any good at all to this country, to this House, or to industrial relations in this country, by the sweeping statements that he makes from time to time in this sort of context. I fee justified in saying that, having regard to the fact that I have heard him do this a few times. I like the noble Lord, and I am sorry to have to say this.
§ LORD HANKEY
The situation in this country has far passed the point where we can continue to sweep it under the carpet. It is high time that attention should be drawn to it. We In- ve lived with it much too long. As regards the procedural agreements, I should lot have referred to them, except that some noble Lords had suggested that all was fine in the railway industry. I wish it were. I am an enthusiast about the use of the railways. Noble Lords have no is ea what the commuters around London suffer as a result of breaches of agreements which ought to be kept.
§ LORD CHAMPION
I thought I made it clear that, although we say:hat we have a very good procedural agreement operating for the railways, we cans of hope by that procedural agreement to make sure that every little difficulty will be smoothed out. That applies to anything 251 that is set up under this clause equally with the agreements that are at present in existence. I do not want to prolong this discussion any further. We have had an excellent debate. I do not like the procedure generally which this Clause 35 initiates, and, for that reason, I am
§ hoping that the Committee will divide against the clause.
§ 4.46 p.m.
§ On Question, Whether Clause 35 shall stand part of the Bill?
§ Their Lordships divided: Contents, 132; Not-Contents, 58.253
|Aberdare, L.||Emmet of Ambarley, Bs.||Monck, V.|
|Ailwyn, L.||Essex, E.||Morrison, L.|
|Airedale, L.||Exeter, M.||Mowbray and Stourton, L [Teller.]|
|Allerton, L.||Ferrers, E.|
|Amherst, E.||Ferrier, L.||Napier and Ettrick, L.|
|Ashbourne, L.||Fisher, L.||Northchurch, Bs,|
|Atholl, D.||Fortecue, E.||Oakshott, L.|
|Auckland, L.||Fraser of Lonsdale, L||Ogmore, L.|
|Balfour, E.||Gage, V||O'Neill of the Maine, L.|
|Balfour of Inchrye, L.||Garner, L||Ranfurly, E.|
|Barnby, L.||Gladwyn, L.||Rank, L.|
|Beauchamp, E.||Goschen. V. [Teller.]||Rankeillour, L.|
|Belhaven and Stenton, L.||Grenfell, L.||Rathcavan, L.|
|Belstead, L.||Gridley, L.||Rea, L.|
|Berkeley, Bs.||Grimston of Westbury, L.||Reigate. L.|
|Blackford, L.||Hailes, L.||Rochdale, V|
|Bledisloe, V.||Hailsham of Saint Marylebone, L. (L. Chancellor.)||Rockley, L.|
|Bridgeman, V.||Rothermere, V.|
|Brooke of Cumnor. L.||Halsbury, E.||St. Aldwyn. E.|
|Brooke of Ystradfellte, Bs.||Hankey. I..||St. Helens, L.|
|Buchan, E.||Hanwortn, V.||St. Just, L.|
|Burgh, L.||Harlech, L.||Salisbury, M.|
|Burton. L.||Hawke, L.||Sandford, L.|
|Byers, L.||Hood, V.||Sandys. L.|
|Caccia, L.||Howard of Glossop, L.||Savile, L.|
|Clifford of Chudleigh. J..||Hurcomb, L.||Selkirk, E.|
|Clwyd, L.||Hylton-Foster, Bs.||Shannon, E.|
|Coleraine, L.||Ilford, L.||Sherfield, L.|
|Colville of Culross, V.||Inchyra, L.||Strang, L.|
|Conesford, L.||Ironside, L.||Strange, L.|
|Cork and Orrery, E.||Jellicoe. E. (L. Privy Seal)||Strathclyde, L.|
|Courtown. E.||Kemsley, V.||Swaythling, L.|
|Cowley, E.||Kilmany, L.||Swinton. E.|
|Craigavon, V.||Kilmarnock, L.||Tenby, V.|
|Crathorne, L.||Kinderstev, L.||Teviot. L.|
|Crawshaw, L.||Latymer, L.||Tweedsmuir, L.|
|Daventry, V.||Lothian,M.||Tweedsmuir of Belhelvie, Bs.|
|De Clifford, L.||Loudoun, C.||Vivian. L.|
|Denham, L.||MacAndrew, L.||Wakefield of Kendal, L.|
|Derwent, L.||McFadzean, I..||Wigram, L.|
|Digby, L.||Mancroft, L.||Willingdon. M.|
|Drumalbyn, L.||Merrivale. L.||Windlesham, L.|
|Eccles. V.||Merihyr. L.||Wise, L.|
|Ellenborough, I.||Meston, I..||Wolverton, L.|
|Elliot of Harwood. Bs.||Milverton, L.|
|Addison. V.||Gaitskell, Bs.||McLeavy. L.|
|Archibald, L.||Gardiner, L.||Maelor, L.|
|Arwyn, L.||Garnsworthy. L. [Teller.]||Moyle, L.|
|Balogh, L.||Greenwood of Rossendale, L.||Noel-Buxton, L.|
|Bernstein, L.||Henderson, L.||Nunburnholme, L.|
|Beswick, L.||Heycock, L.||Pargiter, L.|
|Birk. Bs.||Hilton of Upton, L.||Peddie, L.|
|Brockway, L.||Hughes, L.||Phillips, Bs.|
|Buckinghamshire, E.||Jacques, L.||Plummer, Bs.|
|Champion, L.||Kennet, L.||Popplewell, L.|
|Crook, L.||Leatherland, L.||Ritchie-Calder, L.|
|Diamond, L.||Llewelyn-Davies of Hastoe, Bs. [Tetter.]||Royle, L.|
|Douglass of Cleveland, L.||St. Davids, V.|
|Faringdon, L.||Longford, E.||Samuel, V.|
|Serota, Bs.||Snow, L.||Wells-Pestell, L.|
|Shackleton, L||Sorensen, L.||White, Bs.|
|Shepherd, L.||Stonham, L.||Williamson, L.|
|Shinwell, L.||Stow Hill, L.||Wootton of Abingtr, Bs.|
|Sil kin, L.||Summerskill, Bs.||Wright of Ashton under Lyne, L.|
|Slater, L.||Taylor of Mansfield, L.|
On Question, Amendment agreed to.
§ Resolved in the affirmative, and Clause 35 agreed to accordingly.
§ Clause 36 [Provision for extending scope of reference under s. 35]:
§ 4.55 p.m.
LORD CHAMPION moved Amendment No. 238LL:
Page 28, line 42, after (" may ") insert (" after consultation with the parties")
§ The noble Lord said: With the permission of the Committee, it might be well if we discussed with this Amendment Nos. 238Z, 238AA and 238BBand if many more Amendments are put down we shall run out of letters of the alphabet; already we are doubling them up. Clause 36 sets out what the Commission has to do if it feels that any deficiencies in the procedure in a given industry might be improved if the procedure arrangement were applied to a larger unit than the one referred to in the original application. Amendment No. 238LL seeks to ensure that in the formulation of proposals for the enlargement of the unit to which the Commission's recommendations may eventually relate the Commission shall fully discuss with, and of course take into account the views of, the parties about so enlarging the unit.
§ Clearly, if the Commission thoroughly examines the scope of the original reference to it, it must consider both the area of the unit to be covered and the parties to be affected, and how to deal with the matter if, in the case of an application by one trade union, another trade union's agreement might be vitally affected by any recommendation which the Commission may make. Obviously, in those circumstances the Commission must make the other trade union aware of what is happening and bring it into the discussions. Indeed, as I understand it, the Commission is charged under Clause 37 with the duty of determining what parties, in addition to the original party or parties shall be brought into the further proceedings on the matter. Clearly, with the observance of Clauses 35 and 37 every possible party who ought to be consulted, or who might have an interest in the 254 eventual recommendation of the Commission, would be informed of what was taking place. If I am right about that, what is the purpose of the elaborate procedure which is set out in subsections (2), (3) and (4) of this clause?
§ It seems to me that what is envisaged in those subsections is a time-wasting procedure of the sort so beloved of those who would leave no stone unturned, no avenue unexplored, no loophole unclosed, and so on. But it is quite unnecessary in this connection for the simple matter of making an extension of the scope of a reference and ensuring that all possibly interested parties are made aware of what is going on. That, I take it, is really what is being done in these subsections to which I am referring: making sure that everybody is informed of what is going on. That is all right, but if you have already done it once there is not much point in doing it again. If you already have within the clause itself instruction to all the people concerned that they have to consult in the way set out at the beginning, there is surely no need at all to go through what I regard as the elaborate procedure set out in the subsections which I am proposing to delete.
§ If the Government were to accept the Amendment, the Commission might first decide that it would be advantageous to enlarge the unit to be considered; secondly, there would be discussion with all the parties that might be affected by such an extension; and, thirdly, after taking into consideration what emerged as a result of the discussion, the Commission would get on with the job without further ado. That procedure could be adopted with advantage. It may be said that by making this sort of proposal I am helping the Government to do something which to some extent we regard as objectionable. But it it always open to the Opposition to try to improve a Bill, no matter how bad it is. We think that this Bill is a very bad one, but we believe that it can be improved in some small particulars and I am proposing an Amendment and discussing some others which would very much improve the 255 clause. I shall be very interested to hear what noble Lords in charge of this Bill have to say. I beg to move.
§ 5.0 p.m.
§ LORD BROWN
May I very briefly support the Amendments of my noble friend Lord Champion in this way—and I will paraphrase certain sections of the Bill in my support. At present, the procedure is that the Commission may formulate proposals and cause notice of the proposals to be brought to the attention of the persons affected by them, and then any person claiming to be affected by the proposals would apply not to the Commission but to the Industrial Court. This is a circular procedure. The Commission formulates the proposals without consultation, publishes them to the persons affected, and the persons affected, instead of going back to the Commission, go to the Industrial Court, and presumably the Industrial Court go back to the Commission. A more circuitous way of doing things I cannot imagine. To formulate proposals for something as complex as these situations, without any reference to the people who are going to be affected—and there is no provision for the Commission to discuss it with the people affected—seems to me to be really an omission of a very serious nature leading to the rather foolish proposals for the matter to be dealt with by a circuitous route. I would therefore most heartily commend these Amendments, and I hope the Government will accept them.
§ 5.2 p.m.
I am very grateful to the noble Lord, Lord Champion, for explaining the case for these Amendments, and I would say at the outset that I do not think there is a very great deal of difference between the views of the noble Lords, Lord Champion and Lord Brown, and those of us on this side. I think that the main difference arises when the noble Lord, Lord Brown, says that there will be no consultation; that the Commission will come up with these proposals without having first consulted the parties. In fact, the whole purpose and objective of the Commission is to consult, and they will of course be consulting with all the parties concerned before 256 they put forward their proposals. Therefore, the first Amendment, which—
§ LORD BROWN
Would the noble Earl excuse me? He says that, and I should be very glad to know that that is the case; but would he refer me to the parts of the clause which indicate that this consultation will take place? I think I am entitled to ask that if the noble Earl says that the proposals are in the Bill.
The whole purpose of the Commission is to consult, and it is therefore considered unnecessary for the thing to be spelt out in the clause. The whole way through the Bill the Commission is obliged to consult with the parties and, before coming up with their report, they will have so consulted. The only reason why I would suggest that this particular Amendment should not be accepted as such is because it would be unnecessary, not because there is any difference between us.
§ LORD BROWN
Would the noble Earl allow me to interrupt again? I think it is useful to intervene in this way when he is making these statements. What the noble Earl says might well be valid if the procedure were not laid down so precisely in this clause; but in the light of the fact that the procedure is highly detailed and does not refer to consultation, the only interpretation of the clause is that the procedure is to be followed, and it would appear that the general direction that is implicit in the Bill will not apply in the case of this clause. If the clause had not been so very detailed, one might have accepted what the noble Earl says; but the clause says that the Commission shall formulate proposals, that it shall transmit them to the persons affected by them (which infers not consultation but mere communication) and, then, that if the persons affected by them want to discuss the proposals, they shall go to the Industrial Court. In view of these very detailed procedures it really is somewhat unacceptable for the noble Earl to say that all that this clause really implies is that the Commission should first discuss the matter with the people affected. The words of the clause indicate the reverse.
I think that possibly the noble Lord is making the mistake of considering Clause 36 on its own, 257 whereas, of course, it in fact follows on from Clause 35 and from the point where a reference has been made to the Industrial Relations Court. But before the Court can do anything, as we heard in the previous discussions, it has to be satisfied that the Secretary of State has been seized of the problem; and under Clause 35(4)(a) the Secretary of State must have done a variety of things, one of which may be to invite the Commission on Industrial Relations to consider this point. At that juncture, the Commission is bound, by the very nature of the processes, to have consulted the parties, and it is in Clause 36 only, where it is considered by the Commission to be desirable that the resultant proposals should in fact refer to a wider unit than that which was first referred to them, that the proposals are brought forward. Here a party which has a grievance as a result of the units being widened, and which feels that it will be adversely affected by the Commission's proposal, can object to the court, and the court is bound to consider its application.
Of course the Amendments, if we accept them in toto, would eliminate what I suggest would be a very sensible safeguard which the Bill provides, of a second opinion to which the parties may appeal if they dislike the Commission's proposals. I would suggest that this would be unwise, because it really gives a second line of defence: first, the Commission, having consulted, may come forward with proposals suggesting that the unit is wider, and, then, if any of the parties concerned so dislike the fact that they should be incorporated in this wider unit, they may refer the matter to the Court, which is then obliged to have yet another look at the problem. I would suggest that as it is in the Bill there are two safeguards, whereas if the noble Lord's Amendment were accepted there would be only the one safeguard.
§ 5.7 p.m.
§ LORD BROWN
The noble Earl has just said that the Commission must consult with the parties affected, and he means it, I am quite sure. I believe the interpretation of this clause may lead to them not being consulted. That is the difference between us. The difference between us is that the noble Earl says that the Bill as a whole insists that the Indus 258 trial Commission will consult with the parties affected. My content on, and I am sure that of my noble friend Lord Champion, is that this clause may lead to a process whereby the parties affected will not be consulted. That is the bone of contention between us. It is really quite easily solved, because if the Government accept the first of these Amendments, No. 238LL, and insert the words " after consultation with the parties ", that is quite consistent with the Government's views as expressed by the noble Earl. It may be a duplication, but that will not harm anybody. So on these grounds, why on earth not accept it, to satisfy us, who have genuine doubts and believe there is some substanee in our arguments?
I have stood at these Benches and accused some of my noble friends almost of intransigence on one or two occasions, and that fact has been welcomed by those on the opposite Benches. I now stand here and say that it is really intransigent to refuse to put in words to the meaning of which you have no objection at all; and merely to argue that some previous clause implies that something will happen when the words of the clause itself imply no such thing, and to refuse to accept an Amendment which makes it quite clear, really is intransigent. It is going to make this side more resistant; and it will prolong our debates if we feel that, whatever we say, we cannot get the Government to accept even a tiny Amendment like this—and I am talking about the first Amendment only at this stage. So why not do it? Or, if the noble Earl is not in a position to agree, why not say, " I have heard the argument; it has been clearly brought out and discussed, and I will consider it ". Why not do that?
The last thing I should wish is to be considered intransigent over this, and I should like to meet the noble Lord's point where I can. We should have no objection in principle to the acceptance of the first Amendment, though some slight alteration in drafting may be necessary. I hope that the noble Lord will be pleased by the thoughtful way that we on this side are desirous of meeting his point, but I hope that he will not be too persuasive about asking us to accept the following Amendments. 259 They involve a point of much more substance over which we fear it would be difficult to agree.
§ LORD CHAMPION
That is completely satisfactory to us. The noble Earl is going to look at it, and according to what he said is going to provide something which would be satisfactory to us under the first of the Amendments. I think the other Amendments have some substance but the whole thing is too top-heavy. Nevertheless, having regard to the fact that the noble Earl has replied to us satisfactorily I shall not move the following Amendments. I would only add that I hope the noble Earl, Lord Ferrers, will answer the rest of our Amendments to this Bill in the same way, and will give us equally forthcoming replies. I ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ THE DEPUTY CHAIRMAN OF COMMITTEES (THE EARL of SHANNON)
I must inform the Committee that if Amendment No. 238Z is agreed to I shall be unable to call Amendment No. 238PP.
§ 5.12 p.m.
LORD WINDLESHAM moved Amendment No. 238PP:
Page 29, line 6, at end insert (" in the opinion of the Commission ")
§ The noble Lord said: This is a technical Amendment aimed at improving the drafting. Clause 36(2) requires the Commission on Industrial Relations to send its proposals under subsection (1) to the Industrial Court. Subsection (2)(b) requires the Commission to give notice of or to publish the proposals, to bring them to the attention of persons affected by them. It has been recognised that the Commission might fail to identify a person who would be affected by the proposals. In such a case it has been suggested that the clause as at present drafted would make it possible to challenge the subsequent action taken by the Commission under Clause 37 or perhaps under Clause 38 in addition. The outcome of a successful challenge could be that the recommendations of the Commission might be quashed. Such a setback to achieving a sound basis for resolving the industrial situation under 260 examination might add immeasurably to the task of the Commission. It is, we believe very unlikely that in practice anything of this sort would happen.
§ Clause 36 was drafted in its present form in order to avoid imposing on the Commission a positive duty to serve notice on anybody. The obligation was only to cause notice to be given or published. That was intended to leave the Commission with three options: the first to serve notice; the second to publish; and third, to serve notice and also to publish. In many cases, if not most, it would be impracticable for the C.I.R. to identify and serve individual notices on all the persons who would be affected. The Bill was drafted in its original form since it seemed to add little if anything to require the Commission to carry out its obligation in respect of persons who, in the opinion of the Commission, would be affected by the proposals. Accordingly it had been thought that either publication alone, or publication combined with a selective service of notice, would be sufficient to satisfy the requirement of what might appear to the Commission to be appropriate.
§ Nevertheless, it became clear to the Government that the provision as drafted was giving rise to some worry, and we are pleased to come forward to the Committee at this stage with this Amendment to allay the anxieties that have been put to the Government. I hope the Committee will accept this as an earnest of our willingness to meet our critics, as the noble Earl has just shown, wherever we consistently can without going against the main purpose of the Bill.
§ LORD TAYLOR OF MANSFIELD
Could I put it to the noble Lord that under subsection (2) a dual obligation is placed on the Commission. I take that to mean that an application has been made to the Industrial Court. The Industrial Court has asked the Commission to look at it, and now they are submitting their observations to the Industrial Court. The latter then says to the Commission, " We have finished our job; your obligation is now twofold. First of all you must cause the notice of the proposals that you have arrived at to be given or published, as may appear to the Commission to be appropriate to bring them to the attention of persons who would be affected by them." This 261 Amendment, as I see it, would enlarge what is at present a dual obligation to a threefold obligation. The form of publication for informing persons who are affected by the proposals should be left to the opinion of the Commission. I know that the noble Lord cannot speak for the Commission in advance, but may I ask what is in his mind? Is publication to take the form of a notice in the newspapers, an announcement over the radio, by using the visual aid of television; or will it be by writing an individual letter to all the persons affected? The important point is that when the proposals have been arrived at there is an obligation to let people know. How will it be done?
§ LORD LEATHERLAND
I should like to follow my noble friend's point in one particular. This is very important, because one sometimes gets rival unions operating in one factory, or what is called here euphoniously one industrial unit: I am thinking of the trouble at Pilkington's, where some months ago there was a considerable difference of opinion between different groups of workers. It could conceivably happen that the main group of workers would be notified and some minority groups would not. May I ask how the word " publish " will he interpreted? Does it mean that there will be broadcasts and news items circulated to the Press? If so, that is all right; but I have a fear, a suspicion, that the Government might say that by publishing an announcement in the London Gazette they had complied with the terms of this clause.
We all know that the London Gazette is sometimes quoted by the newspapers, but much of the material in the London Gazette does not get through to the mass of the population. I therefore want to know whether the Government feel that in interpreting the word " published " they should go fair beyond the bounds of mere publication in the London Gazette.
§ 5.20 p.m.
§ LORD SLATER
I wish to support my noble friends in this matter. I took down the words spoken by the noble Lord, Lord Windlesham when he referred to the phrase, " in the opinion of the Commission ". We have often argued in debates about the words " shall " and " may ". Why should it be " in the 262 opinion of the Commission ": There is nothing then incumbent upon the Commission to do this or that; it is left as a matter for their opinion as to whether they ought to do something. I believe that the Government are trying to be helpful, and that they want everyone involved and interested, or in some way connected with an application being considered by the Commission, to receive the information. Instead of leaving it to the opinion of the Commission I should prefer to see the word " shall " used. That it should be incumbent on the Commission to ensure that all the parties concerned shall be so informed
§ LORD WINDLESHAM
It is very difficult for me to stand at this Box and try to speculate on how the Commission on Industrial Relations will fulfil the obligation placed on it by this Part of the Bill We must not overlook the fact that the Commission has a number of extremely experienced staff members. I believe that at the moment the staff is about 100 strong, and it will be larger when the Act comes into force. Those officials will have been down to the work place where a dispute is taking place and where this procedure has been implemented. So they will know not only who the parties to a dispute are who naturally would be notified—we can take it for granted that the Commission would notify the parties—but also othtr persons who would be affected in addition to the employer and the main union involved. I should imagine that he Commission would use selective forms of communication. It would find the representatives of particular groups of workers and of tile employers' association, and those persons would be informed officially in writing. I think that is probably how it would work out. It is a matter of common sense, and in the main it would he left to the Commission.
On the point raised by the noble Lord, Lord Slater, I think the words " in the opinion of the Commission" are needed as a safety net. If there are some persons who might have an interest and the Commission do not know of their existence and do not therefore inform them, it could be argued—it has been put to the Government by Opposition spokesmen and others—that the Commission would be failing to perform its obligation and the whole process would 263 therefore be thwarted. No one would wish that to happen. For these reasons, this Amendment has been proposed. As I say, it is not one of substance, but it is important to clarify the drafting.
§ LORD DAVIES OF LEEK
Although this may be a technical Amendment, and may be serving some purpose, we have to remember that when the C.I.R. was set up it was hoped to build up great expertise, and the Commission begged the Government that it should not have to deal with binding legal decisions and legalities. Because of the assiduous way in which noble Lords opposite are working night and day to look at this matter in depth, we are forced to take into consideration " Parkinson's Law ". This is " Parkinson's Law " to the nth degree. We shall have more people associated with the Bar, judges and barristers, working on these problems than there will be people working for productivity in Britain. We are getting out of our depth. I appeal to noble Lords to try to cut down these matters to realities, because this kind of thing will not work.
§ LORD LEATHERLAND
I do not want to deal with this matter in general criticism, but merely to go back to the point I mentioned a few minutes ago. I quite agree with the noble Lord, Lord Windlesham, that there might be adequate channels of communication for the parties particularly and directly concerned. I am concerned about spreading that knowledge over a wider area to reach people who have a less direct interest. The noble Lord, Lord Windlesham replied to me in all other respects, but not on the specific point that I raised. I repeat the question: would the Government feel that they had fulfilled the obligation placed on them by this clause merely by publishing the announcement in the official London Gazette?
§ LORD WINDLESHAM
I should have thought that that would be a totally unreasonable thing to do. The Commission on Industrial Relations will have had its officers investigating and talking to the parties involved. I think it would be perfectly well aware that a steel foundry or smelting works would not be a place in which the London Gazette would circulate.
§ LORD LEATHERLAND
That is why I have a suspicion that it might publish in the London Gazette and nowhere else.
§ LORD CHAMPION
I do not think we need worry over much about where the Commission will publish. The noble Earl, Lord Ferrers, virtually accepted an Amendment which I moved to ensure that consultation would take place with the parties already concerned. The next thing is to ensure that anyone outside will somehow get the information that a proposal is in the air.
Having regard to the fact that the noble Lord, Lord Windlesham, said that the unit of employment in this case is likely to be rather small in a given area, and not spread over the whole country, I should have thought that the Commission, which will be made up of sensible people knowledgeable about the whole area, would be bound to make some effort to consult those concerned. I should think the local Press could be used, but it would be up to the Commission, having carefully considered the matter, to decide what method it should use to ensure that the purpose of the Act was given effect. This Amendment is little more than a drafting change. Nevertheless, in my opinion it would improve the subsection.
§ On Question, Whether Clause 36, as amended, shall stand part of the Bill?
§ LORD CHAMPION
As this clause deals with machinery, as I described it at the very outset, and a very useful piece of machinery, I do not propose to discuss it at any length. If my noble friends wish to do so, I am giving them the chance by rising at the invitation of the Deputy Chairman. Otherwise, I shall let the clause go.
§ LORD DAVIES OF LEEK
I think we ought to follow the Leader, which I do not do very often. In view of the fact that an Amendment was taken, and to show good will, in the hope that later on to-night and in the morning we shall have some further concessions, it is wiser now to keep silent and to move on with the Bill.
§ Clause 36, as amended, agreed to.265
§ Clause 37 [Action by Commission for promoting settlement of question referred under s. 35]:
§ 5.31 p.m.
§ LORD WINDLESHAM moved Amendment No. 239:
Page 30, line 1, leave out from (" be") to ("parties ") in line 3, and insert—
(" (a) those appearing to the Commission to be").
§ The noble Lord said: I beg to move Amendment No. 239 standing in the Order Paper in the name of my noble friend Lord Drumalbyn. With the leave of the Committee, I will also speak to Amendments Nos. 240 and 241, which are linked with it. I hesitate to say that these are drafting Amendments, in view of the interest evoked in the previous Amendment, but they are in fact a rewording, a redrafting, to remove a possible ambiguity. Clauses 35 to 41, which provide for remedial action when a procedure agreement is non-existent or defective or continually disregarded, as I have explained, are designed to deal with the very intractable problem areas of industrial relations; and under them the C.I.R. has the duty of identifying the underlying causes of trouble and coming forward with recommendations as to effective and suitable remedies. If it is to discharge these responsibilities successfully, the Government consider it should be allowed maximum discretion in framing its recommendations, including naming the parties to whom they will apply.
§ The Amendments remove the present ambiguity in the drafting and make it clear that the C.I.R., in framing its remedies, will be free to recommend new or revised procedures which may affect and involve persons other than those who are parties to any existing agreement. Then, when fulfilling the duty laid upon it by subsection (3) of the clause—that is to promote and assist discussion of its recommendations by the parties with a view to their agreeing to adopt them voluntarily—the C.I.R. is enabled to do so with all the parties and all the people it considers appropriate to do so, thus laying sound foundations for a better understanding among the parties as well as for better negotiating procedures. I beg to move.266
§ LORD DAVIES OF LEEK
If I may jump in before the Front Bench do so, I would say that I have been looking at this provision. It does not seem much more than a drafting Amendment to me, and I do not feel in the mood to wrestle with noble Lords opposite. On a lovely afternoon like this, and in the hope that we are really going to obtain something concrete, I trust that noble Lords will not keep us very long on this point.
§ LORD GARDINER
May I ask whether the effect of this Amendment is the same as it would be if the word " either " were omitted? At the moment the subsection is worded, if have the right copy of the Bill:The parties so determined shall be those appearing to the Commission to be either— ".Those words after " be " are to be deleted, and then there are to be put in seven of the eight words which are already there; namely, " those appealing to the Commission to be ". The only effect seems to be to omit the word " either ". Is that right? If that is righit, why is not the Amendment simply an Amendment to omit the word " either "?
§ LORD WINDLESHAM
I suggest that the noble and learned Lord locks at the three Amendments together and the effect they would have on the wording. This is a very small point. If he looks at subsection (2) he will see that we have " either … and"; and it:;hould be " either … or ". " Either … and " is undoubtedly ambiguous and the drafting is faulty. The wording proposed is shifting down "those appearing to the Commission to be " to the paragraph, rather than the subsection and is slightly clearer, and in the subsequent Amendments we get rid of the " either … and " and also have the very small change I have mentioned: instead of " my other persons " we have " such other persons (if any)".
§ LORD GARDINER
I am not objecting to it at all. Being interested in legislation, however, I would say that so far as the first two lines are concerned I wondered why, if what the draftsman wanted to do was to omit tie word " either ", he did not put down an Amendment to that effect, instead of taking out eight words and putting seven of them back again.
§ LORD WINDLESHAM
I do not think we should pursue this matter. It would have the effect of removing words from the main part of subsection (2). The Amendment would put the words down into the paragraph. I think this is a small matter of presentation and one we should not pursue.
§ LORD STONHAM
While on a small matter, as in the Amendment there is " (a)", does not that mean that you have to alter the lettering of the two paragraphs, otherwise you will have " (a)" twice?
§ LORD WINDLESHAM
I do not think so. It is dealt with by the printing. I think that the letters and numbers (I speak subject to correction) are not technically part of the Bill.
§ LORD LEATHERLAND
May I ask an innocent little question which is designed to draw some information? With reference to page 30, subsection (2)(b), the Commission is required to think about notifying various employers and trade union organisations. May we take it that in every case the Commission would notify the General Council of the Trades Union Congress? I mention that because some years ago there was what was called the Bridlington Agreement, whereby the Trades Union Congress endeavoured to deal with recruitment and poaching by one union from another. There will under this clause of the Bill be cases where perhaps some workers are advised that the proper union to be recognised in a plant is such-and-such a union, whereas they may belong to another. This is exactly the situation for which the Bridlington Agreement was arranged. and it would be courteous, if not just efficient, to notify the Trades Union Congress of any arrangements that were suggested by the Commission in this regard. I know that no question of an Amendment arises here. It is merely, as I say, an innocent inquiry in order to elicit information.
§ LORD WINDLESHAM
I think the noble Lord is touching a very soft spot with his friends and colleagues on those Benches who are members of the T.U.C. General Council, because he will remember that the T.U.C. is at present boycotting the Commission on Industrial Relations together with the other institutions referred to in the Bill. I have 268 no doubt that that boycott will come to an end. I am quite sure that the General Council of the T.U.C. will be willing to co-operate with the Commission on Industrial Relations and the other institutions named in the Bill; and I am sure that at some stage, when the Bill has become law, the T.U.C. and the C.I.R. will sit down together and will be discussing practical arrangements of this kind.
§ LORD LEATHERLAND
Yes, but I hope the noble Lord will bear in mind that in many law suits the complainant and the defendant are both put in possession of information.
Page 30, line 6, leave out (" any other persons ") and insert (" such other persons (if any) ").—(Lord Windlesham.)
§ LORD WINDLESHAM
This Amendment also is one of the series of three which we have discussed briefly on the debate on Amendment No. 239. I beg to move.
Page 30, line 7, leave out (" who ") and insert (" as in the Commission's opinion ").—(Lord Windlesham.)
§ 5.40 p.m.
LORD CHAMPION moved Amendment No. 241B:
Page 30, line 15, leave out from (" provisions") to end of line 18.
§ The noble Lord said: In this Amendment the words that we propose to leave out have reference to the legally enforceable contract. This we have discussed at some length, and our objections to them on previous clauses have been fairly forcibly put. Therefore I will not repeat them now. But I want to probe a little, and what the Committee ought to know and to be clear about in this connection is whether the parties, or one of the parties, to be consulted will be able to say to the Commission: " We have arrived at an agreement on new orally revised procedures, but we are definitely opposed to making such provisions into 269 a legally enforceable contract or document ". The question that I am really asking here is: in such circumstances, would the Commission be able under subsection (4) to report to the Court that they are satisfied that the purposes of the original reference have been, or will be, adequately fulfilled; and would the Court permit the withdrawal of the reference, despite the fact that the agreement is so worded as to exclude its being a legally enforceable document? I put this point shortly. I think it is an important one, and I shall look forward to hearing what the noble Lord has to say about it. I beg to move.
§ LORD WINDLESHAM
I speak somewhat dangerously, without foreknowledge of this, but perhaps I can give what I think is the answer; and if I am wrong I will come back to the noble Lord again. I think the situation would be that if the parties had reached agreement between themselves at this stage, but did not wish it to be legally enforceable, then it would be a collective agreement which the parties had specifically agreed between themselves should not be legally enforceable. It would then be open to the Court to say: " Does it seem that this procedure agreement is likely to fulfil the qualifications which are necessary? Is it the type of agreement that the C.I.R. would devise to meet the problems of this situation?" If they felt that it was, then I should expect that that would be accepted and that the procedure would not go any further. That is the answer that I give to the noble Lord.
§ LORD CHAMPION
That reply is off the cuff: it is clearly not in the brief. I am wondering whether, if I talked for a little time, we might get, via the pigeon post, an answer to the question that I am asking. We know that these things actually operate, when a question is asked the answer to which is not already contained in the brief supplied to the Minister. I have myself been in this position many times, and I used to hope that somebody would get up and talk until such time as there was available to me, as a Minister, the answer to the question posed. I think that the question is an important one. We want, so far as humanly possible, to have a situation created in which agreement will be 270 arrived at outside the too strict legal framework which to some extent is contained in these clauses to which we are now referring. They are machinery clauses. I hope that before we leave this Amendment I shall be able to get an answer to the point that I am putting to the noble Lord.
I am glad to see that the pigeon is now flying. I hope that it will come home to loft, and that as a result, off the leg of the pigeon, I shall get the reply I am seeking. This is t, common arrangement. I am delighted that it works. It ought to work, and I am sure that it is working in this connection.
§ LORD COLLISON
I should like to supplement what my noble friend on the Front Bench has said, becau;e I also picked up this point, which I believe is one that needs consideration. 'The wording is:.… obtaining their agreement on new or revised provisions (such as are mentioned in subsection (1)(b) of this section) so formulated as to be capable of having effect as a legally enforceable contract.I do not read that (I should like to be corrected if I am wrong) as meaning that it must be a legally enforceable contract. But what worries me is that the parties concerned may prefer—and this often happens in the trade union world—a broader type of agreement which could not be translated into legal terms. I think this is an anomaly that should be clarified. They should be able, with the assistance of the Commission, to reach an agreement which may not necessarily have to be in terms which can be translated into legal form.
§ LORD WINDLESHAM
That really brings us back again to the airs of this whole Part of the Bill. We are concerned with those situations where procedure agreements are quite inadequate and they are perhaps one of the sources of industrial unrest of a continuing nature as set out in Clause 35, which we discussed. Therefore the C.I.R. has the duty to try to set a standard; to send down experienced advisers to try to draw up a form of procedure agreement, on the standard of one of the model; which exist, which is capable of being fulfilled and is generally felt to be fair.
The noble Lord, Lord Champion, asked me—and he gave me some notice 271 of the question—whether I wanted to have second thoughts on what I had said. I find that my reaction was right. There is no need for the agreement to be of a legally enforceable nature, provided that the parties have jointly accepted a procedure agreement which is highly recommended by the C.I.R., or is acceptable to the C.I.R., and which they feel is capable of solving the particular problem. Whether or not it is to be legally enforceable is not strictly relevant in that situation.
§ Amendment, by leave, withdrawn.
LORD CHAMPION moved Amendment No. 241C:
Page 30, line 24, leave out from (" effect") to end of line 27 and insert (" to the Secretary of State ").
§ The noble Lord said: The purpose of this Amendment is quite clear. It really follows what we were trying to do on Amendment No. 238U; namely, to cut out the intervening Industrial Court and make it possible for the Commission to make their report directly to the Secretary of State. What we said then applies with equal force here: that this would reduce the number of bodies to which a report of this sort would have to go, which seems to me to make good sense. There should be, first of all, the formulation of the Commission's recommendations; they would be carefully considered; the parties concerned would have been consulted. It seems to me to make sense that the report need not go back to the Industrial Court, but could go direct to the Secretary of State. I do not think I need add anything to that proposition, which seems to me to be a reasonable one. I beg to move.
§ LORD WINDLESHAM
I do not think that that would quite meet the point, because in the case of a mandatory reference the originator is the Industrial Court. Therefore if the reference is to be withdrawn, I think it must be withdrawn by the person who made it in the first place. However, I think that the Committee may go a long way with the noble Lord, Lord Champion, because we must remember that there is the voluntary reference. We hope that at an earlier stage, as I 272 explained on Clause 35, the parties will be willing to accept a voluntary reference from the Secretary of State to the C.I.R. Therefore, where there was a voluntary reference it would be the Secretary of State who initiated the reference and it would come back to him to withdraw it. In the case of the mandatory reference, where we have the power of the court, I think it would have to be for them to withdraw it.
§ LORD CHAMPION
In the case the noble Lord postulates it would not have gone to the Secretary of State in the first place. It would be a matter for the Secretary of State considering that this is the sort of procedure which could then be adopted with advantage; it would go straight to the Commission and come straight back. That makes sense to me. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 37, as amended, agreed to.
§ Clause 38 agreed to.
§ Clause 39 [Order of Industrial Court on report under section 38]:
§ 5.52 p.m.
§ On Question, Whether Clause 39 shall stand part of the Bill?
§ LORD CHAMPION
I want to be clear about what is to happen to the report of the Commission at the point at which it arrives on the table of the Industrial Court. The preceding clauses tell us how the application to the Court is to be made. Then we learn that the scope of the reference may be extended if found desirable by the Commission, to which the Industrial Court will have passed on the reference. Then the Commission has to try to obtain agreement of the parties to a procedure agreement which would satisfy the requirement of the Act, the Commission at that point acting in the role of mediator and conciliator. Following that, if the application is not withdrawn, the Commission prepares its report and sends it to the Industrial Court. It is from that point onwards that I am in some doubt about what happens to it.
Clause 39 tells us that it may lie on the table of the Industrial Court for a period of six months, but before the end of that period any employer or trade union included among the parties may 273 apply to the Court for an order. The Industrial Court must then, unless it thinks an order is not necessary, make an order, which will have the effect of a legally enforceable contract which must be obeyed by the employer and the trade union alike. It will be noticed that until the employer or the trade union—not, as I see it, an organisation of workers but a trade union, which to be a trade union must be a registered organisation—can make an application for an order under this clause. What happens if neither the employer nor the trade union so applies?
Supposing the application is never made by either the employer or the trade union. Does the Industrial Court sit on the report for ever? What happens if the original application to the Court was made by the Secretary of State'? Where are the words which permit him to apply to the Court for an Order? Or, in that case, is there somewhere in the Bill an instruction to the Industrial Court to make an order and serve it on the parties as a legally enforceable contract without an application for an order by any of the parties? Is there something in the Bill covering these points? If there is, I must admit to having missed it—not a difficult thing to do in a Bill of this complexity.
On the legally enforceable aspect—and this is the main point of my rising on this clause, although I think the questions I have asked up to now ought to be answered—we had intended to spend a lot of time discussing 'subsection (3) of Clause 34, but the noble Lord, Lord Drumalbyn, agreed with us that that subsection should not remain in that clause, so very little discussion took place on it. Up to that subsection in Clause 34 we had been discussing freely negotiated contracts in which no provision had been made for excepting the contract from the legally enforceable provision. I hope what I have just said is clear, that up to that point we were discussing something which had become a legally enforceable contract because the 'parties had not agreed that it should not so be. Any party making a legally enforceable agreement would be aware of the fact, and they would know perfectly well that they had to police it, to use the word used in the Donovan Report. Under this Clause 39 the Court may make an order 274 for a negotiating procedure which, to quote the clause… shall have effect as a legally enforceable contract, as if a contract consisting of those provisions had been made between those parties.As I understand it, under This clause it will be possible for the Court to impose, even on an unwilling party or unwilling parties, a negotiating procedure they do not want which will become an enforceble contract and as such attract the policing provisions under Clause 34. This is surely undesirable, will bring the whole procedure into disrepute, and cause trade unions in particular to shy off using the procedures in Clause 35 to 41. even if otherwise they might have thought some good might have accrued through such references. I think this is a really serious point, that Parliament is proposing, or at least the Government are proposing, in this clause of this Bill to do something which I would have thought is so undesirable that it ought never to have appeared in the Bill.
We are going to have this situation created where there can be forced on trade union or employer an obligation to police something which they have not of their own free wills entered into. This surely is not right, and I would hope the Committee would agree with me; but naturally I look forward to hearing what the noble Lord, Lord Windlesham, has to say on this aspect of it, and also the questions I asked about what is t o happen to the recommendation once it does reach the table of the Industrial Court.
§ LORD COLLISON
My noble friend Lord Champion has indeed made the point again, and it will be clear, I think, that the same thought was in my mind when I asked the question on subsection (3) of Clause 37. Would the noble Lord opposite tell me if I am right in thinking this (and forgive me for referring back to Clause 37): the Commission brings the parties together and finds hat they are capable of reaching an agreement—and willing to do so—which they do not wish to be legally enforceable. Is the answer to that situation contained in subsection (4) of Clause 37, which says in effect that, where the Commission find that progress is being made and an agreement will be reached, they can withdraw the proceedings?
275 I think this may be the answer to my first question, but I am certainly not sure what is the answer to the question just asked by my noble friend. It is an important matter. The situation would be as has been stated: that a willing employer and a willing trade union or trade unions, having reached a point where they are quite agreeable between them to have an understanding as to procedures on a voluntary basis, not wishing—either of them—to have it legally enforceable, will be told that they just cannot do it, unless we are wrong in our interpretation of this clause. It is important and needs interpretation, and maybe an amendment.
§ LORD TAYLOR OF MANSFIELD
May I ask the noble Lord whether, when the report is submitted by the Commission to the N.I.R.C., the N.I.R.C. can alter that report if they do not think it right? The main reason why I ask the question is that the C.I.R. is regarded as a conciliatory body and the N.I.R.C. as a judicial body. Could the noble Lord tell us categorically whether the N.I.R.C. is a judicial body with power to alter a report of the C.I.R., which has been endeavouring to conciliate between parties in dispute?
§ LORD WINDLESHAM
I think the answer to that question is contained in Clause 39 and it is what one would expect. The C.I.R. is a conciliatory body. It investigates, it advises and it draws up a report. Subsection (2) says:Where such an application is made, then, unless the Industrial Court is satisfied that an order under this section is not necessary for the purpose of securing acceptance and observance of the provisions recommended in the report, the Court shall make an order—The reading of that suggests that the court would not alter the provisions of the report. It would be for the C.I.R. to draw up the report and the court would have the judicial function of applying that report, saying who the parties would be and withdrawing it, if necessary, if the parties agreed within the period of six months.
- (a) defining the unit of employment to which those provisions are to apply, and
- (b) specifying the parties on whom they are to be binding, …"
In reply to the noble Lord, Lord Collison, I think that my reading of 276 Clause 37(4) is the same as his. The only point that needs further clarification is that of C.I.R. approval. That would depend on the form and content. If the parties came up with a procedure agreement which did not satisfy the C.I.R. and which in their view would not meet the situation in the particular undertaking, they might not be willing to agree. But I think that the question of enforceability is a separate one. I am advised that the answer I gave is the correct one. If the parties to an agreement wish it not to be legally enforceable, that would not happen. But with regard to the form and content, I think that the C.I.R. would have to be satisfied. The noble Lord, Lord Champion, asked about the Secretary of State's powers. He may not apply for a Clause 39 order because he is not a party to the dispute and so is precluded. The noble Lord also asked what happened if none of the parties made an application for an order. The answer must be, I think, that no order would be made. The court would take no action if none of the parties decided to apply for an order.
The noble Lord then turned to the general question of enforcement, which we discussed yesterday. What are the enforcement provisions at the end of this long path, which I described, with many exits to allow the parties to escape from ending up in court after the second stage? What would happen if the court made an order under this clause imposing a C.I.R. devised procedure on the parties is that the procedure agreement would have the effect of a legally enforceable contract, and if the collective agreement were breached, then the provisions of Clause 34 would apply. Those provisions we debated at some length last night and what the clause says, if I remember rightly, is that where parties breach a collective agreement which is legally binding, that is an unfair industrial practice. Then Clause 97 says what the remedies are. These include an order to restrain from taking a particular course of action or the award of compensation. So we go from Clause 39 to Clause 34 to Clause 97. I think that would be the Chain of enforceability.
I should like to end the discussion on this clause with the general thought, which has come up many times, that the Government feel that this is a wholly 277 exceptional procedure to meet wholly exceptional cases. There will be many opportunities for parties to agree with each other before they end up in the Court and without the Court enforcing a procedure agreement upon a reluctant party. This is going to be the exception, not the rule, and the underlying justification why it is in the Bill is that where there is a serious loss of production through continuous industrial action, there is a wider interest. It is not only the parties to the dispute but also the public as a whole who have an interest. For that reason we believe that in the end, where it is absolutely required, the Court must take this action.
§ LORD TAYLOR OF MANSFIELD
I think that the Government are making a profound mistake, for this reason: they are going to shuttlecock !the parties in a dispute between the two organisations, the C.I.R. and the N.I.R.C. The noble Lord shakes his head. I may be under a misapprehension, but the clause says that the C.I.R. shall submit a report to the Industrial Court. We are going to impose on industry these two organisations and they will have different functions. I think that the parties will be shuttlecocked between the two. They just will not know where they are and the situation in industry as a result of the shift of responsibility from one body to another is not going to help industrial relations.
§ LORD CHAMPION
The noble Lord has told us that an order will not be applied for by the Secretary of State, only by the other parties, either the employers or the trade unions. This really is extraordinary. In Clause 35 we are told that the Secretary of State may make an application—that is, he may start the whole procedure. Having started that and gone through everything embodied in the subsequent clauses, we get to a position where the Commission has arrived at a decision, has made a recommendation and has sent it to the Industrial Court. At that point the whole thing dies unless the parties make an application to the Industrial Court for an order. That seems to me to be an extraordinary situation. The noble Lord shakes his head. Clause 35 says that:the Secretary of State, or any other party to whom the section applies, may make an application to the Industrial Court …".278 And then, in paragraphs (a) and (b), sets out what will govern the whole procedure. The application is then submitted and, as I say, having at this stage gone through the whole procedure. it is going to die at the stage of the Industrial Court unless an application is made for it to be made into an order. I am not particularly anxious for the Industrial Court to make an order, for the reason that I have already given, but it seemed to me to be rather silly that the Secretary of State should start a procedure which could peter out in this rather tame manner. I should be grateful if the noble Lord could reply on that point before I make my final decision whether to advise the Committee to divide on this clause.
§ LORD WINDLESHAM
I think it is quite logical, if we just reflect and analyse the situation for a moment or two. At the start of the procedure there is no workable agreement between tile parties, either no procedure agreement at all—Clause 35(1)(a), " the absence of a procedure agreement "—or as provided for in paragraph (b) a procedure agreement which is inadequate and the parties have acted contrary to it. It is in very vague terms; it may be, in the opinion of those such as the C.I.R. who have studied the subject, one of the reasons why the atmosphere in the workplace is very bad. So the Secretary of State has art interest in trying to bring the parties together. At each stage in this long procedure he has an interest to bring the. parties together to enter into an agreement. Right at the end of the day, if he has been unsuccessful and it ends as an order, or an application for an order to the Industrial Court, there are the two parties to the agreement. It is a bilateral relationship, and I think it is right that at this stage it should be for the parties to the agreement to apply.
I would just add an " off the cuff " reflection, which is that it might not be to the advantage of industrial relations—which is what we are talking about in this Bill—if the Secretary of State did have this particular power. The noble Lord, Lord Diamond, who is leading for the Front Bench opposite, was a member of the Cabinet in the previous Administration and he knows the very great pressures that Ministers are under front public opinion to take one course of action or 279 another. Is it quite impossible to envisage circumstances in the future in which the Secretary of State might feel that, for reasons outside those which directly concern the parties, he must go ahead and make an application to the court? I should have thought, on the whole, that this would be better left as it is. Where there is an agreement, at the end of the day it is for the parties, whether they have accepted it voluntarily or not, to enter into this relationship and to make it work. That is the reason for leaving the Secretary of State out, and I think it is a good reason.
§ LORD CHAMPION
But they do not reach an agreement, as I understand it. They have a legally enforceable contract imposed upon them, which seems to me to be something entirely different from an agreement. For that reason I would say that the explanation given by the noble Lord does not really meet the point that I was making.
§ LORD WINDLESHAM
I accept that correction entirely. I was speaking in terms of a procedure agreement, which is the relationship that we are describing here, and the word " agreement " in these circumstances is not perhaps very apt, by the time we have reached Clause 39, to
§ what we have been discussing in this part of the Bill, namely procedure agreements.
§ LORD CHAMPION
That does not invalidate the point I was making. I am not particularly anxious to have the Secretary of State in a position to apply to the Industrial Court to have this imposed. I merely thought that the whole thing, as I read it, made something of a nonsense if the Secretary of State could not come into it at this stage. I believe the idea of the clause as a whole is absolutely preposterous. We are going to have a situation in which this sort of thing can be imposed on people, that they shall then have to police it under the terms of Clause 34 and with all the difficulties that can arise from that, and all the penalties that may flow from an unfair industrial practice being imposed on someone who did not want the thing at the outset; having had it imposed upon them, at the end they might find themselves in court for not having carried out in its entirety the terms of Clause 34. The Committee must divide on this point, and I invite them to do so.
§ 6.15 p.m.
§ On Question, Whether Clause 39 shall stand part of the Bill?
§ Their Lordships divided: Contents, 131; Not-Contents, 57.281
|Aberdare, L.||Cottesloe, L.||Goschen, V. [Teller.]|
|Ailwyn, L.||Courtown, E.||Gray, L.|
|Albemarle, E.||Coventry, Bp.||Grenfell, L.|
|Allerton, L.||Cowley, E.||Gridley, L.|
|Ashbourne, L.||Craigavon, V.||Grimston of Westbury, L.|
|Atholl, D.||Crathorne, L.||Hailes, L.|
|Balfour, E.||Crawshaw, L.||Hailsham of Saint Marylebone, L. (L. Chancellor.)|
|Balfour of Inchrye, L.||Cullen of Ashbourne, L.|
|Barrington, V.||Daventry, V.||Halsbury, E.|
|Beaumont of Whitley, L.||De Clifford, L.||Hankey, L.|
|Belhaven and Stenton, L.||Denham, L.||Hanworth, V.|
|Belstead, L.||Derwent, L.||Harvey of Prestbury, L.|
|Berkeley, Bs.||Digby, L.||Hatherton, L.|
|Bessborough, E.||Drumalbyn, L.||Hawke, L.|
|Bledisloe, V.||Dudley, E.||Hood, V.|
|Brabazon of Tara, L.||Ebbisham, L.||Howard of Glossop, L.|
|Brecon, L.||Eccles, V.||Hylton-Foster, Bs.|
|Bridgeman, V.||Elliot of Harwood, Bs.||Word, L.|
|Brooke of Cumnor, L.||Emmet of Amberley, Bs.||Inchyra, L.|
|Brooke of Ystradfellte, Bs.||Exeter, M.||Inglewood, L.|
|Brougham and Vaux, L.||Falkland, V.||Ironside, L.|
|Buchan, E.||Ferrers, E.||Jellicoe, E. (L. Privy Seal.)|
|Burgh, L.||Ferrier, L.||Kemsley, V.|
|Burton, L.||Fisher, L.||Killearn, L.|
|Byers, L.||Foot, L.||Kilmany, L.|
|Clwyd, L.||Fortescue, E.||Kindersley, L.|
|Coleraine, L.||Fraser of Lonsdale, L.||Latymer, L.|
|Conesford, L.||Gage, V.||Lothian, M.|
|Cork and Orrery, E.||Garner, L.||Loudoun, C|
|Lyell, L.||Rankeillour, L.||Savile, L.|
|MacAndrew, L.||Rathcavan, L.||Selkirk, E.|
|Margadale, L.||Reigate, L.||Somers, L.|
|Massereene and Ferrard, V.||Remnant, L.||Strang, L.|
|Merrivale, L.||Rhyl, L.||Strange, L.|
|Merthyr, L.||Rochdale, V.||Swinton, E.|
|Milverton, L.||Rockley, L.||Tenby, V.|
|Molson, L.||Rothermere, V.||Teynham, L.|
|Monck, V.||St. Aldwyn, E.||Tweedsmuir of Belhelvie, Bs.|
|Monckton of Brenchley, V.||St. Helens, L.||Verulam, E.|
|Mowbray and Stourton, L.||St. Just, L.||Vivian, L.|
|Napier and Ettrick, L. [Teller.]||St. Oswald, L.||Wakefield of Kendal, L.|
|Northchurch, Bs.||Salisbury, M.||Windlesham, L.|
|Oakshott, L.||Sandford, L.||Wise, L.|
|Orr-Ewing, L.||Sandys, L.||Wolverton, L.|
|Addison, V.||Gaitskell, Bs.||Royle, L.|
|Archibald, L.||Garnsworthy, L.||St. Davids, V.|
|Ardwick, L.||Greenwood of Rossendale, L.||Samuel, V.|
|Balogh, L.||Henderson, L.||Serota, Bs.|
|Bernstein, L.||Heycock, L.||Shackleton, L.|
|Beswick, L.||Hilton of Upton, L. [Teller.]||Shepherd, L.|
|Birk, Bs.||Hughes, L.||Shinwell, L.|
|Bowden, L.||Jacques, L.||Slater, L.|
|Brockway, L.||Leatherland, L.||Snow, L.|
|Brown, L.||Llewelyn-Davies of Hastoe, Bs.||Sorensen, L.|
|Buckinghamshire, E.||Lloyd of Hampstead, L.||Stonham, L.|
|Burntwood, L.||Longford, E.||Stow Hill, L.|
|Champion, L.||Maelor, L.||Taylor of Mansfield, L.|
|Collison, L.||Moyle, L.||White, Bs.|
|Crook, L.||Peddie, L.||Williamson, L.|
|Davies of Leek, L.||Phillips, Bs. [Teller.]||Wootton of Abinger, Bs.|
|Diamond, L.||Plummer, Bs.||Wright of Ashton under Lyne, L.|
|Douglass of Cleveland, L.||Popplewell, L.|
|Evans of Hungershall, L.||Ritchie-Calder, L.||Wynne-Jones, L.|
On Question, Amendment agreed to.
§ Resolved in the affirmative, and Clause 39 agreed to accordingly.
§ Clause 40 agreed to.
§ Clause 41 [Extension of ss. 35 to 40 to composite unit]:
§ 6.24 p.m.
§ On Question, Whether Clause 41 shall stand part of the Bill?
§ LORD CHAMPION
This was a new clause inserted in the Bill on Report in another place, and it is one of the few clauses that received a reasonable amount of discussion in that place. So far as I am concerned, the principle of Clause 35 is acceptable and applicable to a particular unit of employment, which term presupposes a single employer. It is only a matter of common sense, therefore, in these days when groups of employers operate under similar conditions that the principles and the procedures of Clauses 35 to 40 should be applicable to such groups. The difficulty that might arise here is over the interpretation of the words "composite unit ". I suppose that 282 interpretation of those words will be a matter for the Industrial Court. However, if the Secretary of State, thinking over the matter since the debate in another place, feels that there is anything that can usefully be added to what was said there, it may prove helpful to the trade unions and the interested employers to have it on the record. Therefore I invite the noble Lord, Lord Windlesham, to tell me a little more than we already know about this matter at this stage.
As I say, this is a new clause, introduced in another place. It received some discussion but I must say, reading the Report of the discussion in the other place, that I am not wholly satisfied about it. I am not sure exactly how it will all apply, and in particular I should like some little further interpretation, or explanation perhaps, of the words "composite unit ".
§ LORD WINDLESHAM
I willingly respond to that invitation. The new clause was debated, as the noble Lord, Lord Champion, says, at some length in 283 the Commons on Report stage, but the debate did go very wide because a number of other Amendments were taken with it. What I should like to do for the benefit of the Committee, and for the information of those outside the House who are interested, is to give a short, hypothetical example of a composite unit which is based on real-life situations. In the jargon, " this is regarded as a model ", which has been constructed by the Department of Employment and I think we shall see within it the features of what will be regarded as a composite unit coming within the terms of this clause and the reasons for it.
Let us refer to this engineering group by name. We could call it the Tankaster Engineering Group—it is a hypothetical one. It is made up of 14 separately registered companies. The total labour force for the whole group is over 10,000 people, and the end product and allied products of this group show little variation. Eleven of the companies are in one geographical area and the remaining three companies in different parts of the country. Despite this firm control from the centre over marketing and financial matters, each of the associated companies pursues an independent industrial relations policy. Plant management has almost complete autonomy, with rare intervention or advice coming down from group level on industrial relations matters. There is little variation between the methods of producion employed at the different companies, and in each case company managements negotiate with the same union. Although there are variations in the size of the labour force employed, each company follows the broad framework of the Engineering Industry Procedure Agreement. In all companies, there is a lack of formalised procedures to provide an orderly framework for collective bargaining to take place. Industrial relations in the 14 companies, as measured by the incidence of industrial disputes, varies: some are good. some indifferent; but a few are very poor, with a long history of unconstitutional action.
This situation, which is not unrepresentative of many large engineering groups, is an example of a composite unit under Clause 41 of the Bill where action might be appropriate under Clauses 35 to 40. 284 In these circumstances it would be misleading to apply changes in industrial relations procedures and institutions to one of the companies only, without taking into account the other 13. The whole group, in effect, might justifiably be regarded as a composite unit where common procedures and institutions would apply and where positive direction over industrial relations policy and its implementation would be formulated at group level. That is, as I say, a hypothetical example but it is constructed from actual instances, and it shows the benefits of this particular procedure which was added after debate in another place.
I think that noble Lords opposite, and indeed the trade union movement, will find that this might well operate to their advantage in a group of companies, separately registered but linked in management and finance. Matters concerning marketing, finance, production and other aspects of the enterprise are often handled at group level by group executives, whereas industrial relations very often are not. These are left to someone in a particular plant who has to get on with it as best he can. The value of this process of joining particular companies where they have close links, both from the nature of the underaking and in their relationships with the unions, means that industrial relations policies will be considered at a higher level and perhaps a more consistent level across a range of companies than is the case at present.
§ LORD CHAMPION
We are grateful to the noble Lord for giving us that hypothetical model, which certainly helps us to understand the meaning of a " composite group ". This is a pretty big group with its 10,000 employees, spread fairly widely. The noble Lord said, regarding a question from Lord Pargiter, that there must be a limit on the size of the unit and that it must be within an area which was immediately identifiable and where all the people might be actually working closely together. I imagine that this hypothetical group is spread over the whole country, but they are going to have a single procedural arrangement arrived at to cover the whole lot. I think that in some cases this is sensible and the right thing to do. I should have thought that what the noble Lord 285 was saying here would fit the wider circumstances posed by the noble Lord, Lord Pargiter, but it would be for the noble Lord to tell us whether that is so or not.
He said something about this hypothetical group: that their arrangements are patchy. That is what we are saying, and have been saying, and he has been saying all the afternoon now, that the picture of procedural arrangements, when looked at over the whole country, is a patchy one. In some cases it is an extraordinarily satisfactory picture: at least one part of the picture is, but the other part is certainly not. I do not wish to quarrel with anything the noble Lord has said, but I would ask him to direct his speech briefly to my point that this model seems to be spreading the group so widely that it might possibly be applicable even to the circumstances mentioned by my noble friend Lord Pargiter about the York agreement.
§ LORD WINDLESHAM
I will willingly do that. My right honourable friend, the Secretary of State, has considered this question very carefully. Representations have been made to him and he is at present of the view that it would not be appropriate for the procedure described in Clauses 35 to 41 to apply to whole industries. The composite unit may be perhaps a compact one. There was the Birmid Qualcast reference to the C.I.R., where three foundries were all on the same site in Smethwick and were producing very similar products indeed. That was an example of a composite unit—a very compact group, much smaller in terms of workforce. In the model which I gave, the workforce is larger—the figure of 10,000 was postulated—and the companies were in the main concentrated in one part of the country, but there were three others in different parts. The distinction, I think, has to be made between a group of this kind which is under single management control. There is one management which has in hand matters of finance and marketing, which can make a bargain, consider questions of industrial relations and implement any agreement they enter into, whereas in industry as a whole that situation does not apply and an employers' federation would not have direct control over its 286 component companies that exist in a composite group of this sort.
§ LORD STONHAM
I believe the noble Lord, Lord Windlesham, said that in the hypothetical case he quoted of a large company consisting of 14 seperate units, they would have a common procedure but any one could itself enter into an industrial bargain. Does that mean that under Clause 41, if one unit concluded a bargain, the bargain would then apply compulsorily to all other 13 units?
§ LORD W1NDLESHAM
No I did not make clear that this procedure is entirely discretionary. There no compulsion About it. It is only if those in the component companies agree that this is a desirable way of proceeding. So the others could not be carried along willy-nilly unless the group management, the owners of the business, from the employers' side, felt that it was desirable that there should be common agreement extending to all their factories—that is, the same agreement. They would then be treated as a composite unit instead of as 14 separate ones. But unless that was so, they would continue to be treated separately.
§ LORD WINDLESHAM: No.
§ LORD HANKEY
Would the Government consider putting the reference to the composite unit as a definition in Clause 158?
§ LORD WINDLESHAM
That seems a very good point and one that we should take account of. Perhaps I, or one of my noble friends, could follow it up when we reach the definition clause, No. 158. It is a quality of this Bill that there are a large number of definitions. I find, while reading through these expressions, that it is surprising how many of them appear in Clause 158, the interpretative one, even though one may then get referred back to some other clause in the Bill. I should like to thank the noble Lord for his suggestion, and we will consult with our advisers on this point and come back to it later.
§ LORD CHAMPION
There is one thing that the noble Lord must not do in Clause 158—and that is to put there the whole story of his model.
§ Clause 42 [Definitions relating to bargaining structure];
§ 6.38 p.m.
LORD DRUMALBYN moved Amendment No. 241D:
Page 33, line 7, leave out (" which will be binding on them ") and insert (" on their behalf ").
§ The noble Lord said: The purpose of this Amendment is quite simple. As the provision is drafted at the present time it would be limited to joint negotiating panels, by definition, and to those who were authorised to enter into collective agreements which were binding on the bodies which set them up. It is thought that that limitation is neither right nor necessary, and the purpose of this would be to modify the definition of a " joint negotiating panel " so as to allow it to cover also such panels as did not make binding agreements. I beg to move.
§ 6.40 p.m.
§ On Question, Whether Clause 42, as amended, shall stand part of the Bill?
§ LORD CHAMPION
This clause seems to me to be unexceptionable as starting a set of definitions for the consideration of Clauses 43 to 53. If Clauses 42 to 53, headed " Recognition of sole bargaining agent ", came to us as a separate Bill, we should probably on Second Reading spend a whole day on the debate, and I should think at least another day—and a long one at that—on Amendments set down to it. But in the circumstances in which this Bill came to us we had to devote a few cursory remarks to these clauses on Second Reading, and because of the way in which the Government are intent on driving this Bill through the Committee stage, by a process of exhausting the Committee—composed of elderly amateurs, of whom I am now one—we have kept our Amendments to these clauses to the absolute minimum.
A few Second Reading points are, however, necessary, and this clause seems to me to be the point at which to make them. I am doing very much what the noble Lord, Lord Windlesham, did in relation to the last group of Amendments with which we dealt in the hope that by doing so we shall cut down debate on the subsequent clauses. I am sure that that would be the wish of the noble Lord, 288 Lord Drumalbyn, who looks as though he is in charge of this particular Part of the Bill.
We are bound to ask here: what are the Government up to? What are they after? Are they trying by these clauses to produce a situation in which there is one industry, one trade union? Are they intent on imposing on industry a pattern of organisation of the employees, by fitting them and their organisations into a preconceived framework? Those of us who are members of an industrial unit might be predisposed towards the idea as a suitable one for all industries, but to attempt that would be to stir up the maximum of trouble for the minimum of advantage.
For the benefit of your Lordships, perhaps I should explain that an industrial union is one that caters for all the workers in an industry, and as such may be described as a vertical union. The Mineworkers' Union is an outstanding example of a union of that kind. The craft union is one which caters for workers having particular skills, and employed in jobs for which their skills are required in a number of industries, in a broad band, on a horizontal pattern, not catering for the unskilled, on the one hand, or for the white-collared workers, on the other. Then there are the general workers' unions, which cater for workers outside the ranks of the skilled workers but not confined to a single industry, as in the case of the industrial union. If all workers could be forced into industrial unions, it might make for administrative tidiness. There are many things one could do in the interests of securing administrative tidiness in many fields, but this is not one of them. To attempt it would be to ignore the long history of growth of the unions, their roots deepened by struggle and adversity, the growth which has gone into their making, to the point which they have now reached. The struggle, as I say. has created the unions and fixed ideas which will be difficult to move. If the Government think that, by a few clauses in a Bill, they are going to fit the many trade unions into a pattern foreign to their growth and history, they are vastly mistaken. If this was a Fascist or Communist State, we should probably do it. But it is not for Britain.
289 I cannot remember whether it was Beatrice Webb or her husband who conjured up the phrase, " the inevitability of gradualism ", a phrase which was something of a counterblast to the young men of the period who were in a hurry, a phrase which was born of the knowledge that evolutionary changes are more fitting for an advanced society such as ours than revolutionary changes. That is an idea which seems to me to be fitting to the general tempo of this Committee, which is understandably conservative and cautious in its approach to change—and of course it is conservative both with a small "c" and very largely with a big " C " too, judging by the numbers who find their way through the Division Lobbies when we have a Division. Nevertheless, even those of us on this side of the Committee, who might have started out with different ideas, inevitably with age become somewhat conservative with a small " c ". So the evolutionary procedure and changes are more fitting to the general tempo of this Committee.
It was also the case with the trade union movement, fashioned by a century and a half growth, of ups and downs and much bitter experience, that it was disposed towards the evolutionary rather than the revolutionary rate of change. But change it is prepared to make. In 1939, the Trades Union Congress, with a view to closer unity and greater efficiency in trade union organisation and negotiation arrangements, adopted what is known as the Bridlington principles and procedures. What that is all about is set out in a brief description in paragraphs 686 to 691 of the Donovan Report. It is sufficient for me to say here that in an extremely difficult area there has been, through the use of the Bridlington principles, a check on the proliferation of unions. In the 30 years during which that agreement has been in existence, no less than 1,000 inter-union disputes have been succesfully dealt with, inside the movement, by a voluntary approach under the Bridlington agreement. As a result of Bridlington, therefore, the reform is coming from within and is not being imposed from outside, which is as it should be.
I think it would be infinitely better if the Government kept out of this field altogether, and did not attempt by these clauses to impose, through the medium of the C.I.R., bargaining structures 290 foreign to the trade union conception of how reform should come. I an of course conscious of the fact that it is not the Government's intention (or I take it that it is not) to apply these clauses willy-nilly across the whole board of industrial relations, because when Clause 43 was added to the Bill on Report in another place, the Solicitor General said, at columns 1544 and 1545:The object of these proposals about bargaining structures and recognition disputes is to provide a machinery which is to he available when disputes arise. This is not intended to be an all-embracing solution applied right across the board, to disturb stable bargaining structures. That is far from being the intention of the Government.Those are the words of a Minister, but I can find in these clauses nothing putting such a limit on their application, and I hope that the noble Lord, Lord Drumalbyn will refer particularly to this point when he comes to reply to me on the Question now before the Committee, that Clause 42 shall stand part of the Bill. It is the old story here: that it is what is in the Act that counts, not what a Minister has said about the Bill before it becomes an Act. The Solicitor General said something in relation to these clauses with which I am bound to agree, that it is not proposed to apply a solution right across the board. But I think that somewhere in these clauses the idea set out in the words of the Solicitor General ought to be included somewhere so that we may be satisfied that no attempt will ever be made by this or any subsequent Government, under the terms of a Bill such as we are now passing, to do what I fear might be in the minds of some Government in the future.
§ 6.40 p.m.
§ LORD DRUMALBYN
I am grateful to the noble Lord, Lord Champion, for the way in which he has introduced the discussion to this Part of the Bill. He talked about the " elderly amateurs " in his opening. Nobody could describe him as an amateur, with the immense experience he has had both in Government and in the trade unions; nor has he in any way added to the exhaustion of the Committee to which he also referred, but he has given me an opportunity of saying something about this Part of the Bill.
The noble Lord has given expression to fears that seem to be widely held but are really quite inexplicable from the 291 point of view of this Part of the Bill. He quoted what my right honourable friend the Solicitor General said about this Part of the Bill, and of course that is one of the things that it is intended to do. I should like to make it clear from the outset that this Bill is not intended to force the whole of industry into the straitjacket of a particular pattern—far from it. In fact, if the noble Lord will look at Clause 43—as I am sure he has—he will see the immense variety of situations which can be covered by that clause.
The bargaining unit may consist of a part of specified groups within a particular plant: it may consist of the whole plant; it may consist of associated plants, or some or all of the workers in those associated plants; or it may cover a whole industry. But the whole point of this section of the Bill is to establish, as the noble Lord rightly quoted, " a machinery for recognition where recognition is not already accorded by the employer ". I think that noble Lords perhaps do not realise the extent to which we are on common ground here; perhaps I ought to make that clear at the outset.
In the first place both sides are agreed that in this day and age it is just not right that an employer should be able to refuse recognition to a union even where this is the wish of a majority of his employees. Thus, the first piece of common ground between the two sides is that where a trade union has adequate support among a group of employees and is able to represent them effectively, it is acknowledged to be desirable that the union should be recognised for negotiating purposes by the employer concerned.
Noble Lords will recollect that one form of bargaining structure that we have been discussing is the agency shop. Noble Lords will remember that before the Industrial Court can allow an application to go forward, it must be satisfied that the trade unions making the application are recognised for the purposes of negotiating rights. Where they are not recognised, then use has to be made of the machinery in this Part of the Bill in order to see that recognition is accorded to a union or unions in accordance with the wishes of their members.
The second area of common ground is that there should be an established procedure for resolving recognition disputes 292 without the need to use strikes or other industrial sanctions. This was also part of the Bill which was introduced in another place before the last General Election. We are all agreed that it is unsatisfactory that in the last resort the only way of negotiating such disputes should be through the use of industrial power. Of course I recognise that the Department of Employment has done, and will continue to do, valuable work in this field. But in the last resort it cannot compel an employer to recognise a union.
The third point of agreement is that once this procedure has produced a decision in favour of the union (however this decision may have been arrived at, and we have our differences here) that decision should bind the employer. That fact applied equally to the previous Bill. Finally, I think it is fair to say that it is also common ground between us that whatever procedure is established it should also be available for use where recognition disputes between unions are —or involve—disputes between unions. I say this, though, with a little more hesitancy because the emphasis in the previous Administration's Bill seems definitely to have been on settling simple disputes over an employer refusing to grant the recognition. But that is, all the same, a substantial area of common ground, and in our disputes and arguments over the details of this it is all too easy to forget it. I do not know how far the noble Lord is going to argue, but what we are arguing about, or may be arguing about, is the question of means, not ends. I recognise that that is not to say that there may be some disagreement regarding the means, and I should like to say something about the means here.
First of all, because the recognition procedure in our Bill is available only to registered unions, it is said that somehow unregistered unions will cease to exist for bargaining purposes. Those were the very words used in another place, and it was also suggested that registration provisions generally mean that unregistered unions will be denied the right to operate as trade unions at all. That is not so, as noble Lords by now will have appreciated. We can argue another time about whether the conditions for registration are right, but certainly it should be possible for us to agree that the principle of registration is 293 right. After all, the Donovan Commission recommended that the registration should be a pre-condition of achieving trade status. It is a fundamental provision of our Bill that registration should be the means of obtaining certain important rights and privileges, and the right to compel an employer by law to recognise a union is one such right.
But of course that does not mean that unregistered unions will cease to exist for bargaining purposes. I feel I must stress at the outset that there is nothing whatever to stop an employer voluntarily recognising an unregistered union, and no doubt a good many will do so. What we are talking about here is the new machinery for use as a last resort where voluntary methods of solving disputes have broken down. In fact, I hope it will prove unnecessary to use the recognition procedure extensively. I stress that this is a last resort procedure, and I hope that most recognition disputes will continue to be settled voluntarily, as they are at the moment. I cannot stress that too strongly. Even here we have bent over backwards to give organisations which are not prepared to register a fair deal. It is true that they cannot initiate an application under Clause 43—that would be inconsistent with the philosophy of registration and the advantages which flow from it. But it is quite open to the C.I.R., under Clause 46, to recommend an independent organisation of workers which is not registered. Provided an organisation recommended in this way gets itself registered within six months of the C.I.R.'s report, then it can make an application for a ballot on the C.I.R.'s recommendations. In our view this is eminently fair.
Next, it is suggested that somehow the introduction of the Industrial Court into the procedure makes it less democratic or responsive to the needs of a particular industrial situation. We contest this strongly. In the previous Administration's Bill only the Secretary of State could refer recognition disputes to the C.I.R. In our Bill the Secretary of State can still initiate the procedure which can result in a reference to the C.I.R., but the parties themselves (employers and unions) can also make applications. It seems to us right, and consistent with the Government's general 294 philosophy, that the parties,themselves should be able to do this. But given that applications can be made by the parties themselves, obviously there has to be some means of sifting applications to make sure that they are valid and that voluntary means of settling disputes have been used and have failed. Of course I know that noble Lords opposite are fundamentally opposed to the idea of the Industrial Court. But given that there is such a body it seems to us right that we should require applications for reference to the C.I.R. to be made to it first of all so that it can sift cases before they go to the C.I.R. The sifting criteria are strictly limited and factual in nature, and they are clearly set out in the Bill. It would be time-wasting for the C.I.R. to carry out the sifting itself (which would have to be the case if the Industrial Court were cut out of the process unless the Secretary of State were somehow given the power, which would be equally undesirable in our view). It will be far better for C.I.R. to concentrate its industrial expertise on the investigations entrusted to it.
But a more fundamental reason for having the Industrial Court in the procedure is that in the last resort there is the possibility of an order—and it is only a possibility,:because between the application and the order a great deal of conciliation, both by the conciliation officers and the C.I.R., will take place—compelling an employer to recognise a particular union. Whatever one thinks of,the idea of an Industrial Court, it is surely right that a legal order of this kind should be made by it. In the previous Administration's Bill it was the Secretary of State himself who glade the order. Moreover, he had discretion as to whether or not he made an order at all. This seems to us to be putting far too much power into the hands of the Secretary of State, with the possibility that the outcome of a recognition dispute would be dictated by political rather than practical considerations. I hope I have said enough to give a broad indication of the clauses that we are here dealing with, but it may be convenient for me to say something about the definitions in this clause itself.
§ LORD SLATER
Before the noble Lord gets on to that, may I ask him a question? He has made reference to 295 registration, and I have listened most attentively to the whole of his speech. The right is given to an employer in regard to the recognition of a trade union and the forms of registration that arise from this particular clause, and this is going to be one of the weakest sections in the whole Bill. It will create more unions and more disruption inside industry than there is at the moment. Secondly, why have the Government introduced into this Bill a form of registration, when trade unions at the moment attached to the Trades Union Congress are already registered as trade unions in accordance with the regulations and also with the law of this country?
§ LORD DRUMALBYN
I think there is a limit to the latitude that is given in regard to discussion on the Question that the clause stand part. The noble Lord said that he was making something in the nature of a Second Reading speech in relation to these clauses. However, the noble Lord is in fact going well outside these clauses. I mention registration only from the point of view of showing that registration was not necessary before an employer could recognise the negotiating rights of a particular organisation of workers. That was the purpose of my mention of it. I think we ought to leave the discussion on registration until we get to Part IV of the Bill; we are at present on Part III.
I do not know how far noble Lords would wish me to comment on these definitions. In so far as " negotiating rights " are concerned—because I think this is important—I should like to say that in this definition there are no restrictions and no limitations on negotiating rights. There is no definition of the levels, local or national, at which negotiations are conducted, nor is there a description of the subjects appropriate to negotiation. Nor is it intended in the present definition that the should so lay down negotiating rights. But where there is a recognition order in force, it will be an unfair industrial practice for the employer not to take all necessary action to negotiate, and this might be alleged in relation to particular subjects that are alleged to fall within the negotiating rights. It will then be for the Industrial Court to decide whether, and 296 in what respect, the employer has failed to negotiate.
So far as joint negotiating powers are concerned, I think I should say that the provision in the Bill that a joint negotiating panel may be recommended as a sole bargaining agent is intended to overcome problems that exist in this country, particularly through the multiplicity of unions in various plants. It is not intended to force them all together. It may be that the descriptions of " workers " to be covered by an application will cover a section of the workers in the plant, as I have said. The object will be that, where appropriate, unions representing as large a proportion of a company's employees as possible should negotiate jointly with the company within a set negotiating body. This will enable the advantage of multi-unionism to be preserved, without the disadvantages of fragmented bargaining.
I hope that explanation has been of some assistance to the Committee, and will perhaps enable us to proceed more quickly with the ensuing clauses.
§ LORD CHAMPION
I am grateful to the noble Lord. I think it will be of help to us to have 'had this explanation at the outset. I only regret that it is not already on the record so that I could read it when dealing with the subsequent clauses which I shall have to deal with after we have had a short break. Despite the area of agreement which the noble Lord has said exists between the two sides in relation to this whole matter—and he went back to the Bill that was introduced in the other place by the last Administration—there is still so much between us on subsequent clauses to which we shall be returning in the course of this long night that seems to stretch out endlessly before us, that I feel that, at this stage, we ought to register our protest about the whole of this Part of the Bill. I hope this will help to cut down the number of Divisions we should otherwise have had on each and every clause of the Bill. It might be helpful to the Committee and to everyone. I hope that if we go through the Lobbies now, we may then go on to the other business, which will give both the noble Lord and me a chance to get some sustenance.
§ THE DEPUTY CHAIRMAN OF COMMITTEES (LORD FERRIER)
The Question is that Clause 43 stand part of the Bill?*
§ 7.10 p.m.
§ On Question, Whether Clause 43 shall stand part of the Bill?*
§ Their Lordships divided: Contents, 104; Not-Contents, 38.297
|Aberdare, L.||Ebbisham, L.||Molson, L.|
|Albemarle, E.||Eccles, V.||Monck, V.|
|Allerton, L.||Falkland, V.||Monckton of Brenchley, V.|
|Balfour, E.||Ferrers, E.||Monson, L.|
|Balfour of Inchrye, L.||Ferrier, L.||Mowbray and Stourton, L.|
|Barrington, V.||Fisher, L.||Napier and Ettrick, L.|
|Beaumont of Whitley, L.||Fraser of Lonsdale, L.||Netherthorpe, L.|
|Belhaven and Stenton, L.||Gage, V.||Northchurch, Bs.|
|Belstead, L.||Goschen, V. [Teller.]||Oakshott, L.|
|Berkeley, Bs.||Gray, L.||O'Neill of the Maine, L.|
|Bledisloe, V.||Grenfell, L.||Piatt, L.|
|Brecon, L.||Gridley, L.||Rankeillour, L.|
|Brooke of Cumnor, L.||Grimston of Westbury, L.||Rhyl, L.|
|Brooke of Ystradfellte, Bs.||Hailes, L.||Rochdale, V.|
|Brougham and Vaux, L.||Hailsham of Saint Marylebone, L. (L. Chancellor.)||Rockley, L.|
|Buchan, E.||Rothermere, V.|
|Burton, L.||Halsbury, E.||St. Aldwyn, E.|
|Byers, L.||Hanworth, V.||St. Helens, L.|
|Clifford of Chudleigh, L.||Hatherton, L.||St. Just, L.|
|Clwyd, L.||Hawke, L.||Sandford, L.|
|Coleraine, L.||Hood, V.||Sandys, L.|
|Colville of Culross, V.||Hylton-Foster, Bs.||Savile, L.|
|Conesford, L.||Inglewood, L.||Selkirk, E.|
|Cork and Orrery, E.||Jellicoe, E. (L. Privy Seal.)||Sherfield, L.|
|Cottesloe, L.||Kemsley, V.||Somers, L.|
|Courtown, E.||Killearn, L.||Strang, L.|
|Cowley, E.||Kilmany, L.||Strange, L.|
|Craigavon, V.||Lansdowne, M.||Strathclyde, L.|
|Crathorne, L.||Latymer, L.||Tenby, V.|
|Cullen of Ashbourne, L.||Luke, L.||Thorneycroft, L.|
|Daventry, V.||Lyell, L.||Tweedsmuir of Belhelvie, Bs.|
|Denham, L. [Teller.]||MacAndrew, L.||Verulam, E.|
|Digby, L.||Margadale, L.||Vivian, L.|
|Drumalbyn, L.||Massereene and Ferrard, V.||Windlesham, L.|
|Dudley, E.||Milverton, L.||Wolverton, L|
|Addison, V.||Faringdon, L.||Plummer, Bs.|
|Archibald, L.||Gaitskell, Bs.||Ritchie-Calder, L|
|Balogh, L.||Garnsworthy, L.||St. Davids, V.|
|Bernstein, L.||Greenwood of Rossendale, L.||Serota, Bs.|
|Beswick, L.||Henderson, L.||Shackleton, L.|
|Bowden, L.||Hilton of Upton, L. [Teller.]||Shepherd, L.|
|Brockway, L.||Hughes, L.||Slater, L.|
|Buckinghamshire, E.||LeatherJand, L.||Stonham, L.|
|Champion, L.||Llewelyn-Davies of Hastoe, Bs. [Teller.]||White, Bs.|
|Collison, L.||Wootton of Abinger, Bs|
|Crook, L.||Lloyd of Hampstead, L.||Wright of Ashton under Lyne, L.|
|Davies of Leek, L.||Milner of Leeds, L.|
|Delacourt-Smith, L.||Nunburnholme, L.||Wynne-Jones, L.|
|Resolved in the affirmative, and Clause 43 agreed to accordingly.*|
|LORD DRUMALBYN: I beg to move that the House do now resume.|
|Moved accordingly, and on Question Motion agreed to.|
|"The references to "clause 43" should have been to "clause 42 as amended".(see columns 533–4 of the OFFICIAL REPORT, FOR Thursday, May 20, 1971.)|