§ [References are to Bill (67) as first printed for the Lords. The Commons Reason is printed in italics.]
LORDS AMENDMENT, Clause 1, page 1, line 21, at end insert:
(2) In paragraph 6(5) of Schedule 1 to the principal Act there shall be inserted after the word "objects" the following words:
on grounds of sincerely held personal conscientious conviction not motivated by hope of financial gain or material advantage or".
§ The Commons disagreed to this Amendment for the following Reason:—
§ Because the clause, as amended, would lead to too much uncertainty in union membership agreements.
§ Lord SHEPHERD
My Lords, I beg to move that this House doth not insist on their Amendment to Clause 1, to which the Commons have disagreed for the following reason:
§ Because the clause, as amended, would lead to too much uncertainty in union membership agreements.
§ I beg to move.
§ Moved, That this House doth not insist on its Amendment to which the Commons have disagreed.—(Lord Shepherd.)
§ Lord HAILSHAM of SAINT MARYLEBONE
My Lords, I trust that this is positively my last appearance on this particular item. Loud groans from the noble Lord, Lord Melchett! I think it is worth while now, in considering whether or not we insist upon our previous Amendment, to consider the course which this Bill has taken before your Lordships' House. We have said all along that this is a thoroughly disreputable Bill, and if this Chamber were simply a Second Chamber with a right of veto the correct course from the start would have been as I said, I think a year and a half ago, to reject it on its first Second Reading. But this is neither the constitutional position nor the course which we have taken. Quite apart from constitutional questions, it would have been the least effective course that we could have taken.
There were originally three main issues in the Bill. The first was the question of unreasonable exclusion or expulsion from a trade union and that had to be viewed in the light of a potential closed shop situation, as indeed do the other two. On that we took a line the first time round and it has now emerged that the point of principle is conceded; that is to say, the Government accept that in a closed shop situation it is wrong to allow unions to exclude or expel unreasonably. What is 439 more, the Government have reluctantly but ultimately given the clear undertaking that if what they have conceded does not work without legislation they will in fact undertake legislation. What they have conceded is that the principle is right, but unlike those of us who have taken a different view they pin their faith to a purely voluntary arrangement offered by the Trades Union Congress but without powers of enforcement and they have promised to legislate if that does not work.
Well, my Lords, that is something. In this field or in other fields I have no faith in purely voluntary arrangements, but in the circumstances the first time round we thought it right to accept the Government's undertaking and to give that a trial, having gained something but not, in my judgment, enough. On the second time round, we chose to do battle on the Press. This was not because it was more important as a matter of principle than the third issue—the issue of conscience to which I am coming—but because we thought that the freedom of the Press was of overriding practical and constitutional importance. Again, we secured something; not much and not enough. I did not share, and I do not now share, the view of the noble Lord, Lord Goodman—who, I think, is not here today—that the "Houghton charter", as we came to call it, is positively a menace. On the contrary, I have always regarded it in exactly the same light as the Government concession on the first issue: that is, an admission on the vital principle, coupled with a refusal to give it legal effect.
Without the safeguards we proposed, I regard the proposed charter as almost valueless, but perhaps not absolutely valueless and not a menace. That it is of very little value is, I believe, demonstrated by the incidents at Barnsley, which incidentally took place after the second time round; the incidents were rightly condemned by the Prime Minister and rather more grudgingly by the Secretary of State. This point was demonstrated also by the rather more serious incident the other day, with the Financial Times, where the union concerned was not, of course, the NUJ. I think both are sinister omens for the future. In the meantime, unless I am mistaken—and I shall be corrected if I 440 am—we have again got the Government's promise to legislate if the thing does not work. If the matter had not been singled out for attention the second time round as being of overriding constitutional importance, I would have sought to have it sent back to the House of Commons this time round; but, for reasons which I explained and which I still think were valid, it seemed to me that once the vital point which we had sent back had been considered again it would be lacking in reasonable courtesy to send it back the second time.
Similarly, although, when asked, I willingly conceded a free vote, for that very reason I did not agree with the proposed Amendment at Report stage, and on the free vote I think the House was wise not to accept it. That brings me to the one outstanding question which must be viewed in the light of the other two; that is, the question of conscience. It is the question which now remains for consideration. I think it important; indeed, I think it the most important moral issue in the Bill. Of the three issues it is the issue which I think shows up the Government, and in particular shows up the Secretary of State in the worst light. It is the point at which the Bill most obviously conflicts both with natural rights and with the European Convention by which this country is bound and for breaches of which it can be brought before the European Commission as being in breach of its international obligations. The pretext that conscience is not definable is a bogus one, as the Government must know perfectly well.
I will not repeat the arguments again, except to summarise them. It is enshrined in the European Convention, it is enshrined in words, which the present Amendment sought to repeat, in the Standing Orders of the Labour Party; it has been operated by the tribunals during the war in connection with military service. Today I say only—it is sufficient to say that conscience is a question of fact and not a question of law, like that which is honest, that which is defamatory—like a dozen, perhaps 100, questions of fact which the tribunals of this country, including juries, have to decide, and do decide without difficulty, every day. It is certainly a question which any industrial tribunal with courage and integrity, 441 or any jury, is perfectly competent to decide.
We are told that the matter of conscience would cause too much uncertainty in union membership agreements. It would not cause any uncertainty at all in union membership agreements, because it has nothing to do with union membership agreements. The membership agreements are fixed by negotiation between the union and the employer, or the employer's association. The question of conscience does not arise at that stage. It arises only when a man has been dismissed, as we would say unfairly, on grounds of conscience. That is a question which does not arise in connection with the union membership agreement at all. It arises only for the industrial tribunal to decide whether or not the dismissed employee should be entitled to damages or compensation from his employer.
Therefore, the reason given by the Government, or the other place, is a bogus reason. I do not at all regret sending this matter back to the Commons. I think it has shown up the Labour Party; it has shown up the Government, and, in particular, it has shown up the Secretary of State in his true light. They have voted against conscience, and conscience as such. An attempt was made the first time round to depict the Secretary of State as the friend of liberty, a true democrat, and a true liberal, of course with a small "1". He is just about as much a friend of liberty as the late Maximilien Robespierre. When he is in Opposition, he operates a contrived anarchy, and when in power, he favours an elective dictatorship; but neither is a liberal democracy with Parliamentary Government as we on these Benches understand it.
My Lords, we have to decide what we must do. In my opinion, the course which we have to adopt is the same course as we have adopted before. We were well entitled to send this matter back to the House of Commons. It has now been returned to us, with the dictat of the Government. In my opinion, we have now exhausted our legal powers, and in my opinion the Speaker would he entitled, and perhaps be bound, to certify under the Parliament Act if we sent it back. We have discharged our duty to the full. I think 442 that as a matter of comity, having discharged it, we do not send the issue back again. The Labour Party have chosen to vote against conscience; they have chosen to vote that a man discharged on grounds of conscience should not be entitled to compensation. They have done so in defiance of the European Convention on Legal Rights. That is what they have done.
They have chosen to describe the inner light, other than that enjoyed by some of the smallest religious denominations, to whom they allow the right of compensation—the voice of conscience, which some of us believe to be the stirring of the spirit within us—as something which cannot be defined; and the introduction of it into the law between employer are employed, though not, of course, although they pretend the contrary, between employers and the trade unions, they described as being something which would lead to uncertainty. To my mind, that is a sin which will not be forgiven. Let them glory in their triumph. It will, I hope and pray, be brief. I hope that it may in the end, not so far removed, help to bring about their destruction. Heaven help this country if the present Secretary of State for Employment were ever elected Leader of that Party.
§ 3.15 p.m.
§ Lord BROCKWAY
My Lords, I support this Bill, and am exceedingly grateful as a journalist to the noble Lord, Lord Houghton of Sowerby, for proposing the Press charter for the freedom of writers. I want to say at once to the noble and learned Lord, Lord Hailsham of Saint Marylebone, that I regard his criticisms of Mr. Michael Foot as one of the most unjustifiable attacks that has been made in this House. I have known the Minister for very many years. I know of no one who has stood more for personal liberties and Parliamentary democracy than the Minister whom the noble and learned Lord has denounced.
Secondly, as a defender of conscience in the First World War and in the Second World War, I want to say to the noble and learned Lord that I find it a little extraordinary that the Opposition is now defending conscience, because on both those occasions I found the greatest difficulty in asserting the right of 443 conscience because of the attitude of the Opposition Party. Having said that, I want to be frank, and say that I deeply regret that the conscience clause in this Bill is limited to a religious objection. That is a very serious retreat from the recognised liberties of this country.
My Lords, during the Second World War, although I did not agreed with their attitude, I was the chairman of the Central Board for Conscientious Objectors, because I believed conscience to be at the very heart of liberty in any country. I took the test case before the tribunals, and I won a definition of "conscience" by the tribunals that it did not apply only to religion, and did not apply even to absolute pacifism. The tribunal agreed that if anyone felt deeply that it was wrong to engage in that war, if he could convince the tribunal that it was a moral conviction he would be regarded as a conscientious objector. I have written to the right honourable gentleman Mr. Foot putting that point of view very strongly. We have gone back on our definition of "conscience" in a way which I believe is a retreat from liberty.
My Lords, the Opposition probably will not agree with this, but I go on to say that if one has a conscience towards belonging to a trade union, one should also have a conscience in accepting the gains which that trade union secures.
§ Lord HAILSHAM of SAINT MARYLEBONE
My Lords, I do not know whether the noble Lord, Lord Lord Brockway, will forgive me for interrupting him, but if he had been present on previous occasions, as I think he may have been, he will remember that I have repeatedly said the same thing myself. I have never favoured the so-called free rider, but think that a trade union is wrong to apply compulsion against him.
§ Lord BROCKWAY
My Lords, let me carry that a stage further, and I do so historically. As I have said, during the Second World War I was chairman of the Central Board for Conscientious Objectors. I negotiated with Mr. Ernest Bevin, who was then the Minister of Labour, and he made this offer: that if conscientious objectors would agree to live on the same income as private 444 soldiers, and devote the margin between that income and their present income to a recognised charitable organisation, he would exempt all our members. I was in favour of that principle. Unfortunately, my Board did not accept it, because they took the view it would be a compromise on conscription.
I want to apply that same principle now. In fact, there is more than one firm in this country—Burtons is one; I think Littlewoods is another—which accept this principle. When they deduct trade union contribution from wages, they ask that those who are not members of a trade union devote that amount to a charitable organisation. I want to suggest that if there is genuine conscientious objection to belonging to a trade union, which leads to individuals not making their subscriptions, not contributing to its effect in gaining advances in the conditions of the workers, they should contribute to a recognised charitable organisation the subscriptions which otherwise would go to the trade union.
I go further than that. If one has a conscientious objection to belonging to a trade union, and the trade union wins advances in wages as a result of its activity, the man who has done nothing to assist the trade union to gain that ought similarly to contribute the advance which the trade union has obtained to a recognised charitable organisation. I want to say this to the Minister. I urge very strongly, even at this late hour, that the retreat from the definition of conscience limited only to religion—the Atheist can have a conscience; the Agnostic can have a conscience; the Humanist, like myself, can have a conscience—is wrong, that conscience should not be limited to religious objectors. But I say also that conscientious objectors to trade unionism should also have a conscience to accepting the gains which trade unions win.
§ Lord SHINWELL
My Lords, I hope your Lordships will forgive me, but we are very close to embarking on a Second Reading debate. In view of the harsh indictment levelled against the Government by the noble and learned Lord, Lord Hailsham, it did occur to me that this calls for a reply by a Government Minister, either my noble friend the Leader of the House or my noble and learned friend the Lord Chancellor. If 445 they are disposed to reply—and I assume they are likely to do so—I want to make only one observation, if they will allow me to do so.
I am not going to enter into the somewhat, for me, mystical and philosophical argument about conscience. Quite frankly, I have never been troubled by it. I have done what I believed was right; I had no theological dispensation or no dispensation from any theological source, so I do not embark on a discussion along those lines. But I do want to say this. I do not agree with my noble friend Lord Brockway in one observation he made. He condemned the noble and learned Lord, Lord Hailsham, for not only his undoubtedly harsh indictment against the Government but what was somehow personal to me in its aspect, the indictment against the Minister for Employment. Quite frankly—and this may surprise some of my noble friends on this side and probably on the other side of your Lordships' House—in my opinion, the noble and learned Lord, Lord Hailsham, as a politician, and with the Party system still operating in this country (for how long it is difficult to say) has a perfect right to indulge in political criticism, however harsh it may seem. That is our purpose, that is our right, and that is a right and a privilege from which we should not depart; nor should it be taken away from us. So I do not complain about that at all.
What I do complain about is this, and I present it in a personal form. If I believed strongly and passionately and vigorously, and almost with invective, and, if I may be allowed to say so without offence, almost with venom in this splenetic fashion, that the Government were wrong, that they had committed a misdemeanour, an offence from which there could be no (to use the noble and learned Lord's language) forgiveness, I would set aside, abandon at once, discard, the constitutional position; namely, as the noble Lord himself mentioned, that it is within the power of the Speaker in another place to proceed automatically and declare this Bill accepted by both Houses of Parliament. I would discard it, and I would do what I think he should do in the circumstances, ask his colleagues beside him and behind him to vote against this Amendment. If he believes as he does, that is what I would represent as conscience. If I believed 446 as strongly as that, as passionately as that, I would say "Let us fight the people in another place; they deserve what they get" instead of running away, scuttling. That is what it means.
If ever the noble and learned Lord should have a feeling of regret, even of shame—he is a man of remarkable ability and intelligence, whose moral attitude is beyond reproach—it is that here was a great opportunity, the opportunity of a lifetime, to represent his principles in genuine convictions, passion, strong conviction, to do that and to fight what he regards as an offence to our Constitution and to our liberties.
§ Lord SHEPHERD
My Lords, I am sure that in one thing I shall have full support from every quarter of the House: that this debate should be shortly brought to a conclusion, and that we should accept the advice of the noble and learned Lord to let it go through and let the normal procedures apply. I hope that the House will accept the advice of the noble and learned Lord, for, above all else, it has meant that we have been able to avoid the use of the Parliament Act procedure. I hope that none of my noble friends will in any way assist my noble friend, Lord Shinwell, to coerce the noble and learned Lord to do otherwise than what he himself has recommended to the House.
I did not intend to say anything in this debate, but in the light of the speech that has just been made by the noble and learned Lord, I do not think it would be right for me, speaking from this side, to leave those words unanswered. I think I should remind the noble and learned Lord what we set out to do in 1974, which we seek to complete today. We seek to remove the Industrial Relations Act.
§ Lord SHEPHERD
My Lords, we seek to finish it completely today. If ever there was a piece of legislation most arrogantly put through Parliament, on matters about which noble Lords themselves had little idea, what they were seeking to legislate, or the consequences and effect on labour relations throughout this country, the record will show. We have sought to the best of our ability to put the law back 447 to what it was prior to the Industrial Relations Act. Certain provisions have had to be included because of the provisions on unfair dismissal, which were included for the benefit of employees and not of employers.
The noble and learned Lord seemed to take credit for what is now referred to as the "Houghton clause", the Press clause. That was the initiative of my noble friend Lord Houghton. He did not receive any assistance from any quarter except on this side of the House. It was an imaginative proposal, and I believe that if we are taking the responsibility of those within the Press—and, Heaven knows! the Press certainly need it today—the provisions of that particular clause, amended at the suggestion of my right honourable friend the Secretary of State for Employment, will provide an opportunity for both sides of that industry to secure the freedom of the Press. I have listened to many criticisms of my right honourable friend in this respect, but throughout we have sought to ensure this by voluntary effort, because it is only by voluntary effort that security and freedom can be ensured, not by the law. We have said, and I will confirm to the noble and learned Lord, that if it was necessary, as a consequence of the Royal Commission on the Press—a Commission which this Government set up, recognising the great difficulties of the Press today—we would legislate if any of their proposals required legislation and received the support not only of both sides of Parliament, in this House and in another place, but also in the Press.
There has never been anything between us on the question of conscience. Here I agree so much with my noble friend Lord Brockway. What we have said throughout is that it is not possible in legislation, by Statute, to draft the question of conscience. There are enough examples already to show the difficulties when you go down this road. As the noble and learned Lord himself will admit, there have been many efforts made to deal with this question through the passage of this Bill, and on other forms of legislation, in the last two years. But I believe that the question of conscience is one which the trade union movement and the employers can more easily and 448 more satisfactorily deal with than the law. There are enough examples in the last three months in which employers and trade unions have satisfactorily worked out union shop agreements which provided for the full conscience clause. It is for them to interpret. We have approached this question in the solid belief that the trade union movement are a democratic force within the United Kingdom. They are no different from any of us who sit in this House; they are as jealous of the rights and the freedom of the individual as any other body.
My right honourable friend the Secretary of State for Employment may not be quite as vocal as the noble and learned Lord on the question of conscience. Perhaps, thank God! that may be so, but I can say of my right honourable friend that throughout his life, in Parliament and in journalism, there is no one who has spoken or written with a greater degree of integrity. At least when you read Michael Foot's articles in the Press you know that that is what he believes. That is a great deal more than one can say of some, and particularly those who write the leading articles of our newspapers today. There was the leading article of The Times the other day which said that it preferred a certain person drunk to the Prime Minister sober. If that is the level of the Press, then the better that we should look to men like Michael Foot and others when they put pen to paper and their articles are published; so much the better for our journalism, so much the better for our own integrity and our freedom.
§ On Question, Motion agreed to.