HL Deb 12 June 1980 vol 410 cc653-737

House again in Committee.

8 p.m.

Lord WEDDERBURN of CHARLTON moved Amendment No. 77J: Page 18, line 12, after ("in") insert ("subsection (1) of").

The noble Lord said: I am aware of the hour and I shall therefore move this amendment speedily with three points to which the Government have not yet given an answer. If the defences of Section 13 were removed from the pickets only to the extent of subsection (1), certain liability would not arise. The most important in trade disputes would be simple conspiracy to injure, on which I commented in dealing with the last amendment. The next most important, perhaps the most important of all, would be no liability in respect of interference with trade as such, and other open-ended liabilities of the kind Lord Scarman spoke of in the recent steel case when he said: Open-ended expressions bring judges inevitably into the industrial arena, exercising a discretion that may well be misunderstood by many and which can damage confidence in the administration of justice". And thirdly, the most important of all: the removal of Section 13(3) could mean that where those who are unlawful pickets join those who are lawful pickets on the same picket line, the lawful picket could themselves, by joining with those who are using unlawful means without the protection of subsection (3), lose their protection as lawful pickets.

I accept what the Government said in another place, that such liability could not arise "simply by association". But as the Government accepted, if they in any way combine with the unlawful pickets—if there were in any way a combination with the unlawful pickets—then, without the protection of subsection (3), there would be the use of unlawful means and a conspiracy to use unlawful means. On that basis, especially because of the third point—and I hope the Minister will answer all three—I urge the amendment very strongly.

Lord MACKAY of CLASHFERN

In my submission, the main disadvantage of the amendment is the uncertainty it would create. At present, the affect of subsection (2) of the clause is quite clear. It says in effect, "If someone pickets other than at his own place of work, he forfeits the immunities provided by Section 13 of the Trade Union and Labour Relations Act 1974". That is perfectly straight-forward. I accept that the main immunity is that for inducing a breach of a contract conferred by Section 13(1). It is that subsection which is nearly always at issue in these cases. But if we were to accept the amendment, we should be creating the impression that Parliament intended some immunity to remain under Section 13 for secondary picketing without specifying what that immunity was.

I am sure the noble Lord will agree that Section 13(1) is unquestionably the most important part of the section; indeed, I think that was implicit in what he said. So far as the other immunities are concerned, the Government's position is that we see no reason why people who are outside the licence, as I think the noble Lord called it, of the new picketing section should enjoy any immunity at all. We doubt whether Section 13(3) is left with any substance in present circumstances, but even if it does have substance, we cannot see any reason why pickets who are outside the protection of lawfulness should enjoy that. So far as discretion is concerned, this does not appear to me to be the kind of discretion that Lord Scarman was referring to in the case cited.

As for the point about conspiracy, we take the stand strongly that merely to be in company with persons who were not, what I might call, licensed or qualified pickets, would not of itself involve the licensed people in being guilty of conspiracy. It is only if lawful pickets actively invite or encourage outsiders to join them in picketing that they may run the risk of losing their own immunity, and if they do that—if they do in fact conspire—we do not see any reason why they should enjoy immunity. Accordingly, I ask the Committeee not to agree to the amendment.

Lord WEDDERBURN of CHARLTON

I am disappointed by the noble and learned Lord's answer. There are many points of detail one could debate, but I will restrict myself to the major point, which is the reason why I must say that we will not feel able to withdraw the amendment. Let me make it clear that it is no part of our argument on this, or indeed on any other, amendment to the clause that the unlicensed picket should be covered by the immunity, although we think the ground the Government are traversing on that is unwise, but we are not arguing that on this amendment.

We are saying that the liability which can be encountered by lawful pickets, in particular in regard to conspiracy to injure and also in particular the use of unlawful means or the combination to use unlawful means, is quite unfair to those whom the Government purport to protect under this Clause. I noted with care the noble and learned Lord's words. It is true, I accept, that merely to be in company with another person is not to combine with him, but I take issue with him that combination starts only at the point—I think I have his words exactly—where someone actively invites or encourages another to come and join with him. There is an area of territory in between where the law of conspiracy quite plainly begins to operate, and that is where there is a combination which is less than invitation or encouragement but which is still a combination. It is therefore possible, and might be quite common, for lawful or licensed pickets unintentionally to lose their protection by merely joining with activities of unlicensed pickets. Although we will not divide on the amendment, we press it on the Government and we cannot withdraw it.

The LORD CHANCELLOR

I would just tell the noble Lord that conspiracy consists in agreement.

Lord WEDDERBURN of CHARLTON

I entirely accept what the noble and learned Lord says; there is, of course, the element of agreement. What I was answering in the Lord Advocate's argument was that agreement necessarily implied active invitation or encouragement. There are many cases, which I am sure the noble and learned Lord will accept, where combination has consisted in an agreement which did not begin with the invitation or encouragement by one of the conspirators, but the acceptance by him, as it were, of an invitation from the others.

The LORD CHANCELLOR

Guilt by association is not an agreement, and with great respect I think that the noble Lord is chasing his own tail. Regardless of whether my noble and learned friend was right or wrong in describing the point at which conspiracy begins, if there is no agreement, there is no conspiracy.

Lord WEDDERBURN of CHARLTON

I entirely accept what the noble and learned Lord says, as indeed one would have to; those words are obviously unexceptionable. But if the noble and learned Lord accepts the authority of, for example, the case of Huntley v. Thornton, he will see an instance of persons who were on one side or the other of the line. Two defendants were not parties to the conspiracy; four were. But among the four certainly not more than one or two actually encouraged or invited the combination. Agreement begins at a different point from invitation or encouragement. Therefore, I maintain my stand that the lawful pickets might well be affected short of inviting the unlicensed pickets on to their picket line, and, not being lawyers, might well unintentionally do things which rendered them liable for matters for which the clause appears not to make them liable.

On Question, amendment negatived.

8.11 p.m.

Lord WEDDERBURN of CHARLTON moved Amendment No. 77K:

Page 18, line 13, leave out ("picketing") and insert— ("attendance at or near a place in contemplation or furtherance of a trade dispute.")

The noble Lord said: I shall try to be equally brief upon this matter, and I hope that we can join issue on the central point and perhaps not engage on too long a search for authorities. The essential case of my noble friends and myself on this point is a very simple one. The term "picketing" is not a term of art in law. It is true that the Government have used the word "picketing" as the side note of the new Section 15 as proposed in Clause 15 of the Bill, but the term of art of "picketing" is unknown to the law.

Every time that the law has spoken of picketing, from 1875 until today, it has spoken in terms of "attendance". It has spoken in fact in terms of attendance in contemplation or furtherance of a trade dispute. The point is an important one, because in subsection (2) all the civil liabilities attend upon trade unionists and their rights are deprived where in the course of picketing they do certain acts.

In the same clause the words attending "at or near" a place are used. I take it that noble and learned Lords would not dispute with me the fact that where Parliament, in the same section, indeed in the same Act, uses two different words, it is the right and proper approach for the courts to investigate and perhaps to presume that the Legislature intended slightly different things because it did not use the same words.

The issue, for example, arises whether or not those who might otherwise be picketing would leave perhaps notices or placards—sometimes known as "ghost" picketing in certain industries—or would otherwise leave communications at a place of work. It is perfectly possible on the understanding that I have and on that of a number of those with whom I have discussed the matter and who are more experienced than myself in statute interpretation, that the word "picketing" in subsection (2) could, and perhaps should, be interpreted as meaning something more than attendance.

The noble and learned Lord's right honourable friend in another place said that that was not the intention of the Government. He said that it is not picketing if pickets themselves are not present. If it is not picketing when pickets themselves are not present, we ask the Government to clarify the position for workers who, in any event, will have enough trouble understanding this law, by putting in place of the word "picketing" the words of the amendment: attendance at or near a place in contemplation or furtherance of a trade dispute. If that is what is meant by picketing, let the clause say so. If the word "picketing" remains, it will mean something different, and indeed to the courts it will surely mean something wider. I beg to move.

Lord MACKAY of CLASHFERN

We have used the words "in the course of picketing" in this clause because they express neatly and precisely what we want to achieve. Our aim is to remove immunity from pickets who in the course of picketing other than at their own place of work induce a breach of contract. We are not concerned in this clause with people who attend at a place of work for some other purpose; and this really is the point. We are advised that if we use some formula other than "in the course of picketing", such as the one suggested in this amendment, we might by mistake restrict activities other than picketing; for example, the right of a shop steward from a particular factory to address a meeting of workers at the gates to another workplace. In other words, we have used "in the course of picketing" in order to reduce the chances of misinterpretation.

We have not defined picketing in the clause because we think it unnecessary. We are aware of course that the word "picketing" has not previously been used in statute, other than in a marginal note, and when the noble Lord refers to the law, I assume he means statute law. But it has long since passed into common parlance. I should have thought that the Shorter Oxford English Dictionary meaning of the word is fairly precise. The courts themselves have used the term on occasions. In the case of Lyons v. Wilkins, Lord Justice Smith referred to what is ordinarily understood by picketing". In the case of Torquay Hotel Company v. Cousins, to which the noble Lord has referred on several occasions, the words of the order which granted the restraint included the phrase: picketing at or near the entrance or entrances of the Imperial Hotel for the purpose of persuading drivers of oil tankers not to deliver fuel oil there". I am sure that the noble Lord will agree with me that precision is demanded to a very high standard in words in an injunction. If the phrase was good enough for an injunction, it must be good enough for us. I would ask the Committee not to accept the amendment.

Lord WEDDERBURN of CHARLTON

Perhaps it is necessary for me to say a little more than I said earlier. Perhaps in the interests of speed I did not put the case as fully as I should have done. I shall put it in terms of a reply, if I may. First, by saying that the possibilities of liability might be wider if our formula were inserted, was not in my submission justified by the example—and the only example—that the noble and learned Lord the Lord Advocate gave. Attending to address a meeting at or near the place might or might not be lawful, whether or not the word "picketing" was used, whether or not the word "attendance" was used. We all agree that if it amounted to an obstruction, it would not be lawful in that sense, on the highway, anyway. So that seems to make no difference one way or the other.

So far as the case of Lyons v. Wilkins is concerned, I am slightly alarmed by the Government relying upon that case which went twice to the Court of Appeal and in which I well remember Lord Justice Lindley saying that you cannot make a strike effective without doing more than is lawful. I should have thought that remarks made in Lyons v. Wilkins were highly undesirable guides to the modern law on picketing, even under this Bill.

Finally, so far as the case of Torquay Hotel Company v. Cousins is concerned, I am not sure of the conventions of your Lordships' Chamber. I was in certain ways concerned with this action, and I wish to say merely that the order in that case is still reasonably fresh in my mind, and if one looked at the pleadings one would see perfectly clearly that the order of the court was plainly made within the terms of the facts and pleadings in that case. I accept that the word "picketing" was used, but the meaning of the word "picketing" was absolutely clear in that case because of the facts and pleadings placed before the court. That is quite different from using the word in a statute.

The noble and learned Lord did not at all answer the point as to whether leaving a placard at a place would, in the Government's view, be picketing. The noble and learned Lord's right honourable friend in another place said that it would not be picketing; but the noble and learned Lord did not say anything about it. It is a matter of great concern to the trade union movement. If our amendment does not get the words right, I press upon the Government the need to reconsider the word "picketing", because I infer from the noble and learned Lord that there are matters other than attendance which would give rise to liability. If there are matters other than attendance which could give rise to liability, the trade union movement is entitled to know what they are.

At this point I think it would be right, in view of the hour, to beg leave to withdraw the amendment, but in so doing to ask the Government to reconsider the matter for the Report stage, and to say that we shall certainly return to it on Report if no proposals are made from them. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

8.19 p.m.

Lord WEDDERBURN of CHARLTON moved Amendment No. 77L:

Page 18, line 17, at end insert— ("(4) Nothing in subsections (1), (2) and (3) above of this section shall affect criminal liability; and accordingly, for the purpose of such liability, it is hereby declared that it shall be lawful for one or more persons in contemplation or furtherance of a trade dispute to attend at or near—

  1. (a) any place where another person works or carries on business; or
  2. (b) any place where another person happens to be, not being a place where he resides,
for the purpose only of peacefully obtaining or communicating information or peacefully persuading any person to work or abstain from working.").

The noble Lord said: This is an amendment of very great importance, and I trust that your Lordships' Committee will accept that it needs a few moments of time. It is concerned with the argument about the extent to which the amendments of picketing law involve new criminal liabilities. In order to be speedy but accurate, I shall try to pick my words with great care.

The position of the Government, as we understand it from the debates in another place, is that this Bill will not create additional criminal liabilities. In saying that, I am conflating a number of quotations, which I have in my notes, from Mr. Mayhew and the right honourable gentleman the Secretary of State—no new criminal liabilities.

Amendments were moved in another place which tried to make that more clear. They were not acceptable to the Government, and the last ones, on Report, were not acceptable largely on drafting grounds. We therefore thought very carefully about the character of the amendment which could, and should, be moved. The one we have put down may be described as re-enacting for the purposes of the criminal law the old section on picketing, leaving the Government with their new clause and their new section for the purposes of civil law.

The argument about the criminal law is to what extent the old section on picketing, which has been there since 1906—and I take it that the noble and learned Lord would accept that the courts have treated Section 2 of the 1906 Act, Section 134 of the 1971 Act and Section 15 of the 1974 Act as effectively the same—has been effective in giving any protection against criminal liability. In the view of many people it has not. There was a time at which I tended to that view myself. However, I thought that I should revise my view when I read in the leading case of Hunt v. Broome in 1974 the remarks and dicta—and they are dicta, but very authoritative dicta—of the noble and learned Lord, Lord Reid, and the noble and learned Lord, Lord Salmon. I feel bound to repeat their actual words very briefly.

The noble and learned Lord, Lord Reid, was speaking about a case in which a building union official attended for a few minutes in front of a lorry and obstructed it, and was convicted of wilful obstruction of the highway. In the course of that hearing the noble and learned Lord, Lord Reid, said this at page 92 of the Industrial Cases Reports for 1974: Attendance by one or more persons on a highway must inevitably cause some obstruction of the free passage along the highway, and were it not for Section 134 the appellant would, by attending for the purpose of persuading Dickinson"— that is, the driver— not to do what he was employed to do, undoubtedly have committed an offence against Section 121 of the Highways Act". He then discusses whether the section is meaningless or whether it does in fact protect.

The noble and learned Lord, Lord Salmon, is more positive. Lord Salmon said this about the section—the same as the 1906 and the 1974 sections, in effect. At page 96 he said: The section gives no protection in respect of anything the pickets may say or do whilst they are attending if what they say or do is itself unlawful. "But for the section, the mere attendance of pickets might constitute an offence under Section 7(2) and (4) of the Act of 1875"—

I pause to note that the noble and learned Lord will of course be aware that that relates to the offences of persistent following and watching or besetting unlawfully and without authority— or under the Highways Act 1959"— that is, wilful obstruction— or constitute a tort, for example, nuisance. The section therefore gives a narrow but nevertheless real immunity to pickets. It clearly does no more". In that narrow and real immunity the noble and learned Lord, Lord Salmon, has included three criminal liabilities. If, therefore, it is the Government's case that they wish to do nothing that will increase the area of criminal liability, they cannot allow the clause to constrict the places at which people will picket and encounter that criminal liability. It follows as night the day that if the clause affects the position in regard to the legality of picketing, if the noble and learned Lords, Lord Salmon and Lord Reid, are right, then the criminal law is affected as well.

Indeed, among the many quotations that I would wish to read the Committee of the right honourable and learned Attorney-General in his statements to the House of Commons on 19th February and 18th March, I may perhaps take just one, where, with great respect, I accept that the Attorney-General sets out the position very fairly for all schools of thought, because there is more than one school of thought upon this matter. If I may read him at column 1348 on 18th March, I quote him as saying this: …if there were an obstruction under the Highways Act, where it was a lawful picket, it is open to argument that section 15 might provide immunity. Some say that section 15 is declaratory; others say that it would go further and provide an immunity in that case. But whatever the precise legal effect of section 15, its practical consequences are not in doubt. It confers no immunity from prosecution for obstruction in the sense in which that term is normally understood: that is, physically preventing a person from going where he wants to go, not only into the works, but also along the pavement to the other end of the road. If pickets go beyond peaceful persuasion and obstruct the passage of workers or vehicles, everyone knows that there is no protection for that sort of act".

Now, accepting that for the moment and not quarrelling with it (although I could in terms of very small detail), there are two schools of thought, and one is that the old sections on picketing provided a narrow and real protection against criminal liabilities. The noble and learned Lord, Lord Salmon, is one of that school of thought. The noble and learned Lord, Lord Reid, appears to think that that school of thought is at least as arguable as the opposite. Therefore, we say that if the Government are to be true to their word, if the Government are to honour their pledge that no new area of criminal liability will be created, the only way to do it, or at least a way to do it—we do not claim to have the only solution; if the Government have an equally good one, we are naturally happy to accept it—is to enact the old section for the purposes of criminal law, leaving the Government with their new clause for civil law. Our amendment is carefully drafted in one sense, in that we merely restate precisely that section which has been there since 1906 and which trade unions had to work very hard to obtain, in terms that it applies only in the area (and I hope we have made this clear in our draft) of criminal law.

If the Government cannot enact something of this kind, it follows from the statements of the Attorney-General and Lord Salmon and Lord Reid, and indeed others who, in view of the hour, I am not quoting, that there is at least an arguable case—I would say there is a clear case, but there is at least an arguable case—that criminal liability is affected. If the Government are unable to stand up and say that there is no arguable case—disagreeing, thereby, with one school of thought accepted as possible by the Attorney-General, and disagreeing, thereby, with the noble and learned Lord, Lord Salmon, and it seems possibly Lord Reid as well—then the Government must surely accept some amendment to set out clearly that which they say themselves they want to do. I beg to move.

8.25 p.m.

Lord MACKAY of CLASHFERN

In our submission, this is a misleading and potentially dangerous amendment. Section 15 of the 1974 Act and Clause 15 of the Bill, which would amend that section, are concerned with the civil law, not, in our submission, with the criminal law. As the Attorney-General said in another place in a Statement on 19th February which was repeated in your Lordships' House by my noble and learned friend the Lord Chancellor, and with which I agreed as representing the principles of the law of Scotland: … the law on picketing does not, in any real way, change the criminal law and in no way diminishes the rules which govern public order. The criminal law of the land applies to pickets as it does to anybody else. Let there be no illusion that the immunity provided under the civil law enables pickets to break the criminal law". Section 15 of the 1974 Act states that it is lawful for someone to attend at or near a place of work, for the purpose only of peacefully obtaining or communicating information, or peacefully persuading any person to work or abstain from working". If a picket goes beyond such peaceful behaviour, the law affords him no protection. The law, we would submit, is quite plain on this point. Everyone has the right to go about his work free from interference by anyone else. If anyone tries to prevent someone else from exercising those rights—for example, by the use or threat of violence, intimidation or obstruction—he is breaking the law.

The noble Lord has expressed concern that Clause 15 might increase the likelihood of criminal prosecutions of pickets, particularly, I think, for obstruction. As he has said, the view has been put forward that Section 15 of the 1974 Act provides some immunity for pickets to commit offences, notably obstruction. However, my right honourable friend the Attorney-General, who advised the Standing Committee in another place, stated quite clearly that Section 15 does not confer any substantive immunity for the offence of obstruction in the sense in which it is generally understood; namely, physically preventing a person from going where he wants to go. Nor does a picket need any criminal immunity, since if he merely stands on the pavement or on the side of the road without interfering with the rights of others to pass and repass, and peacefully communicates information, perhaps by holding a placard or by speaking, or tries to persuade others not to enter their place of work, he is not committing an obstruction even in the technical sense.

This amendment, however, would force the courts, we would submit, to look for some substantial criminal immunity enjoyed by pickets, which in reality does not exist and was not intended by Parliament to exist when Section 15 and its predecessors were enacted. We would think the law reasonably clear on this aspect at present, and this amendment, we would say, would throw it into confusion. Therefore, we would invite the Committee to reject it.

It is fair to say, in view of the observations quoted from Hunt v. Broome, that one must take the remarks of the learned judges in the context of the case with which they were dealing. That was a case where obstruction was committed by the pickets stepping out in front of a lorry, preventing it from passing into the works.

Lord DAVIES of LEEK

I have tried to follow this. It has been a brilliant debate. For those of us who are laymen, it is difficult to follow every phrase. But I cannot agree completely because the current law on picketing (up to now, before this Bill becomes an Act of Parliament) is, in my estimation, and in that of the trade union movement and other movements, defined in Section 15 of the Trade Union (Labour Relations) Act 1974, amended by the 1976 Act and the additional Section 13 of the 1974 Act, as amended. I find that various items have been questioned in the courts and that the High Court itself was not sure of the conclusions. It is agreed in the trade union movement that is knowledgeable, by academics and scholars and by the rank and file of the movement who understand it in practice, that there is obscurity here and that it needs clarifying.

Lord WEDDERBURN of CHARLTON

We cannot accept the noble and learned Lord's interpretation. In the interests of time, I am being pressed hard not to take issue with him. I do not accept his explanation that Lord Justice Salmon in Hunt v. Broome makes it clear. With respect, it is wrong in law. We shall not divide on this amendment but will divide on the Motion that the clause stand part of the Bill.

On Question, amendment negatived.

[Amendment No. 77M not moved.]

On Question, Whether Clause 15 shall stand part of the Bill?

8.32 p.m.

Lord McCARTHY

The Government would not expect us to allow this clause to go through without opposition. The clause is designed to limit picketing to the place of work and to limit the role of trade union officials. We have tried to argue in the series of debates on our amendments that there is no case for this and we have sought to suggest, in particular in respect to limiting the role and scope of the trade union officials, that this is not in the Government's interest even given the general purposes of their Bill. Nothing has been given us on these points. All these amendments have been moved. Nothing has been promised. Therefore, at this stage, despite the time of night, we must force this matter to a Division.

I should like to say in conclusion that nobody should get the idea—and I have said this repeatedly, as has my noble friend Lord Wedderburn—that in voting in this way and in forcing a Division we are condoning or doing anything other than deploring violence on picket lines or intimidation, or watching or besetting, or any aspect of picket behaviour which is unlawful and has always been so. We are arguing that the Government proposals will not help but will give rise to all kinds of new liabilities, including criminal liabilities; and therefore it falls to us to divide the Committee on this clause.

Lord RAWLINSON of EWELL

Before my noble friend replies, I should like to say, having had some responsibility at some time in respect of advising Her Majesty's Government of that time on these matters, that I have absolutely no doubt whatsoever that this clause is a very useful addition and an important one. I am glad that Her Majesty's Government are going to insist upon Clause 15 standing part of the Bill.

The Earl of GOWRIE

The noble Lord, Lord McCarthy, said that the Committee would not expect him to let this clause go through without a Division. Having heard the whole debate, and having heard especially the substantive contributions of the noble Lord, Lord Houghton of Sowerby, and the noble Baroness, Lady Burton of Coventry, speaking from the side of noble Lords opposite, I should have thought that the wisest thing they could do would be to let the clause—not particular amendments—go through without Division. They are out of touch with the mood of the Committee, let alone with the mood of the country, on this issue. Flying pickets, secondary pickets, whatever you call them, are inherently intended to frighten. In substance, those were the words of the noble Lord, Lord Houghton. They are inherently intended to frighten both the workers concerned and the general public—which is why they are so objectionable and why we have outlawed them.

While employment legislation is concerned essentially with contracts and attempts to induce breaches of contracts and therefore with civil relationships, the cordon sanitaire and the like cited by the noble Lords, Lord Wedderburn and Lord McCarthy—and I accept that they are in no way encouraging or condoning violence—are essentially to do with criminal law.

Our contention is that what we are doing is providing redress for a deep civil wrong and a civil wrong which is liable to, and usually does, lead to wrongs in other areas and to offences. The other thing I would say is this. With my noble and learned friend Lord Rawlinson, I think that one of the most pernicious aspects of picketing is what the previous Attorney-General, Mr. Sam Silkin, described in a memorable phrase as "lawful intimidation"; in other words, the threat to take away someone's union card and hence his job if he crosses a picket line. This is where the Bill's provisions on the closed shop, which we have already debated, will interact with this clause. When my noble friends look at what we are doing on secondary picketing they must take it in the context of our reforms on the closed shop.

As regards any other form of intimidation, the law is already absolutely clear. Mr. Callaghan, the previous Prime Minister, when he was Prime Minister, said: Everyone in this country is entitled to cross a picket line if he disagrees with the arguments that are put to him. There is nothing to stop any citizen. I would not hesitate to do it myself. I would not hesitate to cross a picket line if I believed it right to do so". I think that the remarks of the right honourable gentlemen the Prime Minister of that time are much more congruent and nearer to the mood of the Committee this evening than anything which has been said by noble Lords opposite. That, I think, is the feeling of the public and of the country, and that is why we are determined to see that this clause should stand part of the Bill.

Lord UNDERHILL

I must say something on this, in view of the remarks of the noble Earl, Lord Gowrie. Time and time again we have had quoted to us in various debates the remarks of my noble friends Lord Houghton of Sowerby and Lady Burton of Coventry. Frankly, I will give second place to no one in my opposition to certain things that have happened in recent years. As my noble friends have said, we oppose violence and intimidation. To attempt to divide the Committee as if some of us do believe in violence and others do not—

The Earl of GOWRIE

That is not what I said.

Lord UNDERHILL

It may not have been what the noble Earl said but that was the implication. Otherwise there would be no need to refer continually to the remarks of my noble friends. I am with them, and I think that all my noble friends are with them, in the remarks that they made. What we are concerned about—and I think that my noble friends on the Front Bench have made this clear—is that in our opposition to and detestation of some of the violence that has occurred, we must not create new legal impediments to proper trade union activities. My noble friends in moving their various amendments have outlined sufficient anomalies to show that there are grave dangers of this. I am not going to repeat their arguments, but there are a number of points which have arisen as to where it may or may not be lawful to carry out picketing—points of doubt

Resolved in the affirmative, and Clause 15 agreed to accordingly.

have been created by the wording of this clause. We on this side are united in our condemnation of victimisation and of any kind of intimidation; but what we must not do is to use that as an emotional excuse for doing things which might damage proper trade union activities. That is what may happen unless the position is made absolutely clear.

8.40 p.m.

On Question, Whether Clause 15 shall be agreed to?

Their Lordships divided: Contents, 84; Not-Contents, 35.

CONTENTS
Alexander of Tunis, E. Gowrie, E. Mowbray and Stourton, L. [Teller.]
Amory, V. Greenway, L.
Ampthill, L. Gridley, L. Nugent of Guildford, L.
Auckland, L. Hailsham of Saint Marylebone, L. (L. Chancellor.) Nunburnholme, L.
Bellwin, L. Orr-Ewing, L.
Belstead, L. Hankey, L. Rawlinson of Ewell, L.
Berkeley, B. Hanworth, V. Reigate, L.
Bessborough, E. Harmar-Nicholls, L. Renton, L.
Boothby, L. Harvington, L. Ridley, V.
Brougham and Vaux, L. Henley, L. Robbins, L.
Cairns, E. Hives, L. Rochdale, V.
Caithness, E. Hood, V. Rochester, L.
Camoys, L. Hornsby-Smith, B. Romney, E.
Cathcart, E. Hunt of Fawley, L. St. Aldwyn, E.
Cockfield, L. Hylton-Foster, B. Sandys, L. [Teller.]
Craigmyle, L. Kemsley, V. Seear, B.
Crathorne, L. Killearn, L. Sempill, Ly.
Cullen of Ashbourne, L. Kilmarnock, L. Spens, L.
De La Warr, E. Lindsey and Abingdon, E. Stamp, L.
De L'Isle, V. Long, V. Strathcona and Mount Royal, L.
Denham, L. Lucas of Chilworth, L. Torphichen, L.
Drumalbyn, L. Lyell, L. Trefgarne, L.
Dundee, E. McFadzean, L. Trenchard, V.
Eccles, V. Mackay of Clashfern, L. Tweeddale, M.
Ellenborough, L. Macleod of Borve, B. Vaizey, L.
Elton, L. Mansfield, E. Vivian, L.
Ferrers, E. Massereene and Ferrard, V. Ward of Witley, V.
Fortescue, E. Mottistone, L. Westbury, L.
Gainford, L. Young, B.
NOT-CONTENTS
Ardwick, L. Kaldor, L. Ponsonby of Shulbrede, L. [Teller.]
Birk, B. Llewelyn-Davies of Hastoe, B.
Collison, L. Lockwood, B. Ross of Marnock, L.
David, B. Lovell-Davis, L. Stewart of Alvechurch, B.
Davies of Leek, L. McCarthy, L. Stewart of Fulham, L.
Gaitskell, B. Milner of Leeds, L. Stone, L.
Galpern, L. Northfield, L. Taylor of Mansfield, L.
Hale, L. Oram, L. Underhill, L.
Hatch of Lusby, L. Peart, L. Wallace of Coslany, L. [Teller.]
Heycock, L. Phillips, B. Wedderburn of Charlton, L.
Howie of Troon, L. Pitt of Hampstead, L. Wells-Pestell, L.
Janner, L. Whaddon, L.

Clause 16 [Secondary action]:

8.48 p.m.

Lord WEDDERBURN of CHARLTON moved Amendment No. 77N: Page 18, line 18, after ("in") insert ("subsections (1) or (3) of").

The noble Lord said: There has been a certain amount of difficulty among my noble friends and myself about how to deal with a central issue in the Bill. There are four amendments which relate to a proposition which we feel we have to put to the Government: namely, that Clause 16 infringes the primary right to strike and is not restricted as the Government spokesman in another place has continually insisted to what the Government call secondary action.

The amendments are Nos. 77N, 80J, 80H and 80K. If I may explain very briefly, the subsection of the clause which is dealt with in one way or the other by these four amendments is subsection (8). Subsection (8) repeals subsection (3) of Section 13 of the 1974 Act which provides rights to workers acting in furtherance or contemplation of a trade dispute. It is our contention that if subsection (8) remains in its present form that will, over a very wide area, imperil the right to strike. Time after time the Government have insisted that that is not their intention. There are therefore two things that could be done with the clause if our argument is based upon even reasonable grounds. First, the subsection—

The EARL of GOWRIE

Will the noble Lord be so kind as to give way? I am not clear. My understanding was that we would have a debate on this very important and substantive issue on Amendments Nos. 80H, 80J and 80K. Is the noble Lord now moving the debate on Amendment No. 77N? I had the clear understanding that we would take this debate on Amendments Nos. 80H, 80J and 80K. It seems to me far more appropriate for the Committee to take it at that time.

Lord WEDDERBURN of CHARLTON

I apologise for causing the noble Earl to wait a moment before I responded; I was trying to take advice from my noble friends, who are more experienced in these matters than I. I am advised that the preferable course in moving our amendments would be to press Amendment No. 77N as the substantive one, for a reason to which I was about to come when the noble Earl intervened.

I appreciate that there are certain conversations and events to which reference is not normally made in the Chamber, and the matter has not remained in the hands of the noble Earl and myself. The advice which I have received is that the most expeditious way of dealing with our case—and I trust the Members of the Committee will accept that that is what we wish—is to press this amendment for a reason which I will now explain. We believe that subsection (8), by repealing subsection (3) of Section 13, imperils the primary right to strike. There are two ways in which the matter can be dealt with. If I may put them in broad terms and then relate them to the amendments, either the repeal of subsection (8) could be related only to this section—or perhaps I should say the repeal of subsection (8) could be made to apply only to subsidiary action or the subsection could be deleted from the clause.

We understand fully the Government's objection to deleting subsection (8) entirely. I accept that if one did that there would be certain ways in which secondary action might escape civil liability, which the Government, in their own logic, do not wish to see. Therefore the following course is that which I am advised is the right one in dealing with the rather complex matter of a number of different amendments. We shall press upon the Government this amendment which we say is its own logic. If the Government do not accept it, and I expect that they will not, we shall press the matter to a Division as a matter of principle, subsuming therein the further Amendment No. 80J, which it will then be necessary only to move formally because, of course, if the Government accept this amendment they would have to accept Amendment No. 80J as well.

I begin by repeating, but without quoting every occasion, that on occasion after occasion the Government have said, and we accept them at their word in this, that it is not their intention to affect the primary right to strike. The noble Earl said it twice on Second Reading, the right honourable gentleman the Secretary of State said it twice in the other place and Mr. Mayhew, the Under-Secretary of State, has said it three or four times. They have, however, never given a reasoned answer to our case that the repeal of subsection (3) imperils over a wide area—I do not say in every case—the legality of ordinary wage dispute strikes between an employer and his own workforce, be they organised in a union or not, or in contemplation of the furtherance of an ordinary trade dispute.

As I mentioned in connection with an earlier amendment, in order to save time, the three areas of tort liability which were protected by the 1906 Act—and the matter is only explicable by a brief reference to the development of the law—were simple conspiracy, interference with trade and inducing breach of contract of employment. When the Donovan Commission came to inspect the defences or rights which were given to trade unionists and workers in furtherance of trade disputes, they expressed surprise in paragraph 887 of their report in 1968 that the protection was afforded in trade disputes only to inducing breach of contracts of employment. They said: It is not possible at this distance of time to say why the protection afforded by Section 3"— that is the relevant section of the 1906 Act— was confined to breaches of contract of employment". The first limb of the section has its origin, as we said, in a Private Member's amendment by Sir Charles Dilke. It was an occasion which led to the first parliamentary "demo", when the Unionist Members walked out at 11 o'clock on Friday night, and all your Lordships no doubt trust that that event will not recur, and that indeed such an hour will not recur.

The report goes on: The contracts of which trade union officers were most likely to induce a breach were contracts of employment and the cases decided in the courts against trade unions seemed to be cases of that kind". It may therefore have seemed to Sir Charles Dilke at that time that this was a situation that called for immediate action and there was no need to go further.

The reading of debates in volumes 162 to 167 of the 1906 Bill make it clear beyond peradventure that no single speaker envisaged that there was a further economic liability in terms of civil liability of that sort. But subsequently, as the Donovan Report recounts and as all the books of labour law recount, areas of the common law were discovered or developed—the new jurisprudence would say "created", but the word does not matter. New areas of liability were found in the case law which were not protected by the 1906 Act and which no one in 1906 dreamt needed protection.

The first was the liability which began in the 1950s for indirect inducement of breach of commercial contracts, beginning with the case of Thomson v. Deakin in 1952, and developing in England through the case of Stratford v. Lindley, and in Scotland through the case of Square Grip v. MacDonald, to which I have already made reference. That was the first area of liability in regard to which attention was required, and the Donovan Report recommended that the extension of protection or immunity for trade union rights should be extended from inducing breach of contracts of employment to inducing breaches of all contracts, although—and I want to be quite clear about this and not be unfair—a majority of seven to five said that although that extension should take place it should be given only to official union action and not to unofficial. I make that point deliberately because the Government's clause makes no distinction between official and unofficial action and is therefore not related to that aspect of the Donovan Report and recommendations. The Donovan Commission was clear that inducing breach of commercial contract albeit indirectly had to be protected to maintain the right to strike.

The second development was in 1969 and cases thereabouts, encapsulated so well in the comment of the noble and learned Lord, Lord Denning, in the case of Torquay Hotel v. Cousins, that the time has come when the principle of inducing breach of contract: …should be further extended to cover deliberate and direct interference with the execution of a contract without causing a breach". The memorandum by the Department of Employment to the Select Committee of the House of Commons in March last spoke of the important new tort liabilities facing officials because of these developments.

Thirdly, in 1964 the debate which had gone on for many years, about whether there was a tort of civil intimidation beyond the threat of violence, was resolved by the Court of Appeal with the answer "No", but was overruled by the House of Lords and finally decided with the answer "Yes". The importance of that to this debate is that it was held by the House of Lords as a breach of contract for the purposes of the law of tort and not merely the law of contract—a breach of contract is unlawful between the parties of the contract. In the words of the noble and learned Lord, Lord Devlin, at page 1209, in Rookes v. Barnard: I find nothing to differentiate the threat of a breach of contract from a threat of physical violence or any other legal threat". That put breach of contract into the camp of unlawful means.

So far as the threat of breach of contract of employment was concerned, that was protected in the Trades Disputes Act in 1965, but it led on to the fourth discussion in the area; that is, the general development of the tort of doing harm by unlawful means, to which I referred last week in our debates, and to which I referred earlier this evening.

Indeed, the Donovan Report itself, which was accepted as authoritative on this point, took it, in paragraph 854, that the consequence of Rookes v. Barnard was not only that the tort of intimidation needed attention in trade disputes, but also, It has been suggested that liability for civil conspiracy might arise where a number of persons agreed together in contemplating or furtherance of a trade dispute to break their contracts of employment in combination, since they would be parties to an agreement to an unlawful act. If done by one person alone, the act, the breach of contract, would be actionable and accordingly the protection of the 1906 Act would not be available, nor would the combination be protected by the 1965 Act. This possibility is one which we think should be removed by legislation". There were, therefore, two areas of liability based upon unlawful means. One was that, in taking action, workers broke their contracts of employment, or, indeed, interfered with commercial contracts, and that was a form of unlawful means not covered by the legislation. The second was a rather curious one, which I must put on the record. It was this. The areas that were protected in the 1906 Act were rendered, in lawyer's terms, not actionable; that is to say, if someone induced a breach of contract of employment, it was not to be actionable on that ground alone.

That gave rise to a curious division of minds among two lines of judicial thinking. The first line of thought—with respect, to my mind the more logical—said that not being actionable the act of organising the strike was therefore not unlawful, and there are many dicta to that effect. The other line—before the 1970s more numerous in dicta in fact, as Mr. Justice Templeman pointed out in a judgment of 1976 in the case of Camellia Tanker v. International Transport Workers' Federation—was that, although it was not actionable, it remained an unlawful act inherently and therefore could be unlawful means for the purposes of the law of tort.

It was those two matters, the breach of contract as unlawful means in tort, Rookes v. Barnard in 1964, and the possibility and, apparently, the numerically superior view of the judiciary, that even an act that was not made actionable in trade disputes remained inherently unlawful, that caused the Legislature in 1974 to enact subsection (3) of Section 13, because subsection (3) resolved the doubts on the matter in Parliament, by declaring that neither of these should be unlawful means in the law of tort, when they were committed in furtherance of a trade dispute or contemplation of a trade dispute.

The reason for doing that was very simple, because if that had not been enacted, then a trade union official organising a strike could have his acts looked at in two completely different ways. On the one hand, he could be said to be inducing breaches of employment contracts in furtherance of a dispute, and not liable in tort because he was protected. On the other hand, on precisely the same facts, it was not only arguable, but judicially supported, that the same official could be described as interfering by the use of unlawful means; or, if you wish, conspiracy to use unlawful means, as the Donovan Report preferred, although I myself do not prefer the conspiracy argument—but it is equally arguable—and, therefore, he was liable, albeit that he acted in furtherance of a trade dispute.

The intention of subsection (3) of the 1974 Act was, therefore, to restore the position as it was thought to be in the 1906 Act. I hope that noble and learned Lords and noble Lords will not say that history is irrelevant to this matter, because the whole point was that the primary right to strike was established in 1906, and the primary right to strike is what the Government say they want to maintain. So that if it was necessary in 1974 to extend the language of the so-called immunities in order to maintain their substance—and in four respects, as the Donovan Report and other works have made clear, it was necessary to extend the language in order to maintain the substance—then, surely, this matter must be cleared up under this clause.

Indeed, if I may cite, finally, one judicial piece of interpretation which surely supports the view to which I am now claiming correct analysis, in the case of NWL v. Woods in 1979, the noble and learned Lord, Lord Scarman, said, speaking of the 1974 Act as amended in 1976—and I quote him from page 886 of the Industrial Court Cases Reports: The legislative purpose of the Act is clear, to sweep away not only the structure of industrial relations created by the Industrial Relations Act 1971 which it was passed to repeal, but also the restraints and judicial review which the courts have been fashioning, one way or another, since the enactment of the Trade Disputes Act 1906". A little later on he said this—and this is the nub of my case: Briefly put, the law now is back to what Parliament had intended when it enacted the Act of 1906, but stronger and clearer than it was then". It is our contention that if Clause 16(8) remains in its present form and, at least, is not modified in the very modest way we ask for in Amendment No. 77N, then the Government will have taken away something which is judicially recognised, recognised by the Donovan Commission, recognised by the learned works on the matter, to be necessary to maintain the primary right to strike. It will lead the Government to be in breach of the European Social Charter, which in Article 6(4) establishes the right to strike, and to which the United Kingdom Government have adhered. We therefore beg to move Amendment No. 77N, knowing that if it is accepted or carried Amendment No. 80J must go with it, because if subsection (3) is included as a limitation of the secondary action clause, then of course its total repeal in Clause 16(8) must fall away as well. This is, therefore, perhaps the most expeditious way of making our case. It is our case that the clause as it stands makes the ordinary, common or garden right to strike unlawful in a large number of situations, and it is on that ground that we ask the Government to honour their own statements that they do not wish to do so. Even if this is an arguable case, some amendment of this kind must surely be accepted. I beg to move.

9.7 p.m.

The LORD CHANCELLOR

I rise to a crowded and excited Committee to answer what the noble Lord, Lord Wedderburn, has assured us is a question of principle. Until 10 minutes or so before he rose to move Amendment No. 77N, I was assured that my humble task was to reply to Amendments Nos. 80H, J and K. I tried extremely hard to follow the rapid development of his argument and I do understand that the same point is involved as was involved in Amendments Nos. 80H, J and K. I believe that to be correct.

The insertion of the words "subsection (1) or (3)" into line 18 on page 18 of the Bill is relate d solely to our proposal to repeal altogether subsection (3) of Section 13 of the Trade Union and Labour Relations Act 1974. The noble Lord, Lord Wedderburn, has somehow—I am not at all sure how—persuaded himself that in repealing subsection (3) of Section 13 of the Trade Union and Labour Relations Act 1974 he has uncovered an unholy plot by the Tory Party to prevent primary strikes of some kind, or perhaps of any kind. My first task is to assure the noble and learned Lord, Lord Wedderburn—no, he is not learned in this House although he would have been learned in the other one, I think—

Lord PEART

With respect, I do not think that the noble and learned Lord should use those words.

The LORD CHANCELLOR

I really do not know what the noble Lord is speaking about. I was corrected from behind me—and correctly corrected, and withdrew. I do beg the noble Lord, Lord Wedderburn, to believe that in the first place we are not so wicked as to try, by devious means, to do the opposite of what we say we are trying to do; secondly, that we are not nearly so clever as to do it by this particular means, which nobody has thought of, so far as I know, but the noble Lord himself; thirdly, that if we were either so clever as to try to do the opposite of what we say we are trying to do and to do it by this particular means we should have done it rather more effectively than could be cured by the particular series of amendments which the noble Lord has chosen to put down.

I say, and say it again in unequivocal terms, that we are not intending to interfere with any form of primary action by the repeal in particular of Section 13(3) of the 1974 Act. We are not intending to do so, and we are advised, and believe, that we have by no means succeeded in doing so by mistake. That is the first and by far the most important and perhaps the only important thing that I have to say in this contribution to the debate.

I am trying very hard to work myself into a state of mind when I can even understand how it is that the noble Lord thinks that we have achieved this extraordinary result. So far as I can see it, the answer is dependent not upon the law of 1906 but upon the law of 1974, as amended by the Act of 1976. The Act of 1974 dealt solely with contracts of employment. I am, of course, talking about the relevant section. The Act of 1976 altered that position, for reasons which one remembers, to add to the contract of employment, in effect, commercial contacts.

So long as the Act of 1974 was valid in its original form—I am speaking about subsection (1) of Section 13—and related solely to contracts of employment, subsection (3) served a kind of useful purpose because it provided that unlawful means were not to be considered. But in our view, the advice which we have received—it is conceivable that we are wrongly advised but I do not see how we can possibly be wrongly advised, nor has the noble Lord, Lord Wedderburn, persuaded me in any way that we are—is that once the Act of 1976 was introduced to amend Section 13(1) of the Act of 1974, subsection (3) of Section 13 of the Act of 1974 was simply a floating kidney. It meant nothing and served no useful purpose.

It was, in fact, to use the language employed by the noble Lord, Lord Wedderburn, simply a hidden minefield. Being there and serving no useful purpose, we have been advised that if it is left floating about there, it would be to the courts of law in this country, which do their best to understand what Parliament is about, at best puzzling and at worst defeating to the purposes of Clauses 15, 16 and 17 of the present Bill. If it is left on the statute book the courts might find constructions for it which were never intended when it was first included in the 1974 Act and which deterred them from finding in favour of the plaintiffs in cases of unlawful secondary action.

It is, I think—and I really rather press this on the Committee—an important principle in legislation that redundant and superfluous provisions should be repealed at the earliest opportunity when they continue to serve no useful purpose and, in fact, mean nothing.

Lord RENTON

Hear, hear!

The LORD CHANCELLOR

I was glad to hear my noble friend Lord Renton applaud my sentiment because, as a matter of fact, what I am trying to say now, although it is not, I think, a matter of principle at all, exactly illustrates a point which he has already made about these three or four sections in an earlier connection this evening.

I agree with him that it is inconvenient not to have a Keeling Schedule unless one also has a consolidation Act. It may be that the noble Lord, Lord Wedderburn, has really been caught in the trap which my noble friend Lord Renton explained at an earlier stage. I absolutely acquit him of any desire whatever to alarm the trade union movement into thinking that there is some kind of "blue" conspiracy to defeat primary action. I am sure he does not intend to do so. He is genuinely caught in the web of his own learning and industry, hut the fact of the matter is that the thing is a great deal simpler, so we believe; and we genuinely believe it, whether we are right or wrong.

The fact is that Section 13(3), which we are repealing by Subsection (8) of the present clause, serves no useful purpose at all and is only a source of confusion and will bring the law into confusion and worse.

As far as I was able to understand it, the reason underlying the thinking of the noble Lord, Lord Wedderburn, is something rather like this. If I have got it wrong, I ask noble Lords to believe that it is not because I want to get it wrong. It is because I have done my best to understand it, and if I have got it wrong I can only apologise humbly. First of all, the crucial question is whether the repeal of Section 13(3) will affect any immunity for primary action of any kind. As I have tried to explain, Section 13(1), as amended in 1976, provides, in our view, the substantive immunity for both the direct and indirect form of the torts which those taking primary action are likely to commit.

The repeal of Section 13(3) for the reasons that I have indicated does not detract from that in any way. In consequence, I feel I am safe in assuring the Committee, because I have been advised by those who are better qualified to judge these questions than I—and, so far as I can believe and ascertain, they are right—that in relation to all known torts covered in Section 13, the removal of subsection (3) will not affect the immunity for primary action. But the trouble with the noble Lord, Lord Wedderburn, is that, like some astronomers, he thinks he has discovered a new tort not previously known to science, and he seeks to discover it by a number of erudite references to various dicta and statements in various cases.

Of course, as my noble and learned friend was saying a moment or two ago, these cases have to be read in their context. Their context is extremely elaborate, and therefore one has to ask the Committee to suffer slightly in talking about them. But the truth is that the real source of this new planet—the new tort, the hitherto undiscovered tort—is a passage in Clerk and Lindsell on torts. Like Mr. Waygood and Miss Otis (who made lifts) Mr. Clerk and Mr. Lindsell have long since been gathered to their fathers and new authors have taken their place. The author of this particular passage is a certain Professor Wedderburn, who is well known and universally respected as a great authority on this subject. He states that there exists a tort of uncertain ambit which consists in one person using unlawful means with the object and effect of causing damage to another.

I am bound to tell the noble Lord, Lord Wedderburn—the discoverer of this heavenly object—that, so far as the legal advisers of the Government are concerned, we do not believe that the new planet exists at all. If by any chance we are wrong about the existence of the new planet, and if it is really there, so small that it cannot be discerned by the human eye but only by the most elaborate telescope of learned professors, the fact is that the various amendments which he proposed would not solve his problem, so far as I can see, at all. It would not go far enough.

We certainly think it necessary to repeal Section 13(3) for the purpose of Clause 16, and in trying to table the, four or five amendments which they have put down I gather that noble Lords opposite have actually recognised that fact. But we think it desirable to abolish Section 13(3) altogether and that is because, for the reasons I have explained, we regard it as now wholly superfluous because the extension of the immunity in 1976, to cover interference with all contracts and not just contracts of employment, made Section 13(3) unnecessary in relation to the torts dealt with in Section 13. It is now clear that Section 13(1) covers both the direct and indirect forms of the torts for which it gives immunity. Once that is established the question of whether inducing a breach of contract of employment or an actual breach of such employment are lawful means does not arise in connection with those torts because Section 13(1) itself provides the substantial immunity.

If he wanted to protect himself against the possibility of some hitherto undiscovered tort, I think he would have to travel a very different road from that which he has done in the present amendment. He would then have to find a new clause on the lines of Section 13(1) not related to unlawful means, as he sought to do by reinstating subsection (3) of Section 13; he would have to provide a substantive immunity in relation to the new tort, which he would then have to define. As we do not think that the new tort exists, we are rather at a loss to find such a substantive new clause, but I think there is no limit to the ingenuity of the noble Lord, Lord Wedderburn, or to his industry. I only seek to assure him that no question of principle that I can discern with the naked eye possibly arises on any of these amendments.

9.23 p.m.

Lord SPENS

Before the noble Lord, Lord Wedderburn, replies, I just want to say that I have been quite mystified as to how far this particular debate has taken us, but I believe from what the noble Lord the Lord Chancellor has said that we have been debating not only Amendment No. 77N but also the possible effect of taking out subsection (3) of Section 13 of the 1974 Act. The noble and learned Lord the Lord Chancellor described it, I believe, as now being a floating kidney. May I claim that our little group had thought of it in very similar terms and we have been considering whether there may not be a better way of making use of subsection (3) than merely removing it from the statute book. Therefore, all I want to say is that we may come forward on Report stage with an amendment.

The LORD CHANCELLOR

I can only say to the noble Lord that when he does we shall give it the same careful attention as we have been trying to give to the noble Lord, Lord Wedderburn. Perhaps they will find themselves in the same Lobby.

Lord WEDDERBURN of CHARLTON

I can only hope the noble and learned Lord the Lord Chancellor will give Lord Spens' amendment when it comes even closer attention that he has given ours. I wish to reply, with the greatest respect and in all clue deference, to the arguments which he has advanced to me. I am sure he did not intend them ad hominem. I would not have dared to cite my own chapter in Clerk and Lindsell, and it is the last thing I will do tonight.

The LORD CHANCELLOR

A very good chapter.

Lord WEDDERBURN of CHARLTON

I am glad the noble and learned Lord thinks it is a good chapter. It will be improved in the next edition. I do not think the Government are on to a plot. Noble Lords look astonished, but I do not think they are on to a plot. I think the Government are wrong. It is possible to have disagreement, especially among lawyers. The noble and learned Lord said that they are not nearly so clever as to abolish the right to strike in this way. The noble and learned Lord underestimates himself, but I take it that he does not intend to do so. It has been said again and again, and of course we all know that what is said three times is right. I take it it is the Government's intention not to abolish or imperil the legality of the right to strike. But that is what they are doing.

I must repeat the reason, because the noble and learned Lord said that he did not understand my argument. I will reply to the points where he said he did not understand, and keep the time short. First, he put it to me that the Government were advised that they were not doing anything of this sort by mistake. The noble and learned Lord does not need advice on these matters; he knows the authorities; at least, with respect, I thought he did, but I am coming to some which I think prove at any rate that he is arguably wrong.

The need for subsection (3) of Section 13 arises from two matters: first, that many judgments which have not been overruled, and which in some cases have been approved by the House of Lords, state that that which is actionable still remains unlawful means; secondly, that breach of contract including breach of contract of employment is unlawful means. The noble and learned Lord said that the Act of 1974 as amended by the Opposition, which carried its will against the minority Government of the day in this House—I am not making a party point, but that is how it came about—did in fact restrict subsection (1) of Section 13 to inducing breach of contract of employment. I point out to the noble and learned Lord that it is not true when he says that the 1974 Act as enacted was totally restricted to contracts of employment. I have the Queen's Printers copy in my hand, and if he will look at subsection (3)(b)—

The LORD CHANCELLOR

I quoted specifically Section 13(1); at least I thought I did. I think if the noble Lord studies Hansard tomorrow he will see that I was very careful to say that.

Lord WEDDERBURN of CHARLTON

I retract, of course, if I have misquoted the noble and learned Lord. However, I have to point out that subsection (3) was not restricted to contracts of employment and included the phrase: a breach of contract in contemplation or furtherance of a trade dispute shall not be regarded as an unlawful act or unlawful means for the purpose of establishing liability in tort. It refers to a "contract", not "contract of employment". What is more I, too, have recently re-read all the debates of 1974 and 1976. The Opposition put down no amendment at all to that particular subsection and paragraph. By 1979 they had suddenly discovered that subsection (3) of Section 13—and I refer to the working paper on the new clause in 1980—was a monstrous enlargement of the immunities, but they did not challenge it in 1974, and they did not challenge it in 1976. It remained on the statute book for that very reason—they did not challenge it. Why did they leave it there?

Now the noble and learned Lord says that they appear to have left it there because it was meaningless. That is not what the working paper said. That said that it was a monstrous extension of the whole of the Act of 1976. Now the noble and learned Lord says that it does not mean anything. Perhaps I may interpose that if it is meaningless—and I beseech him in Cromwellian terms to be thinking that he may be wrong—then at least leave it on the statute book, if it is arguable that it protects the right to strike and the right to strike would disappear without it.

However, the noble and learned Lord makes a much more important point, and on that central issue I shall join with him. He says that he and his advisers have been unable to discover this curious tortious planet in the heavens of the common law to which I have made reference. There is no such tort, he says, as doing damage by unlawful means or conspiracy to use unlawful means, if that is the other way to put it, as the Donovan Report did.

I do not merely rely on the Donovan Report—it is not a judicial authority. I wondered which references I should bring of the many which support the argument. I can only refer the noble and learned Lord to the statement in Torquay Hotel Limited v. Cousins in 1969, which I quoted previously and which said that if you deliberately interfere with the trade or business of another, and do so by unlawful means, you act unlawfully and are liable to damages or an injunction. That was expressed in the Court of Appeal in 1969 2 Chancery at page 106, and supported by the Court of Appeal in the case of Acrow Automation Ltd. v. Rex Chainbelt Inc. in 1971 1 Weekly Law Reports at page 1676. It was supported last year in the Court of Appeal in the case of Carling Music Corporation v. Collins 1979 Fleet Street Reports, page 542, and stated with abundant clarity in the Court of Appeal in the case of ex parte Island Records 1978 3 Weekly Law Reports 23 at page 30.

I shall, if the noble and learned wishes me to do so, read such passages as I have brought from two of those authorities. However, I ask him to accept from me that there are many other authorities that establish the existence of this tort. He rather criticised me for daring to suggest it, and were I a belligerent character—which I am not—if I were speaking of someone else other than the noble and learned Lord, I would say that a student of law today must be affected by legal myopia if he did not understand the existence of this tort. He does not need a telescope, he does not even need a spyglass. It is abundant from the pages of the law reports.

The extent to which breach of contract amounts to unlawful means is, it is true, arguable in terms of the precise margins, but that is always true of legal doctrines. But that it applies as unlawful means, that that combination to use it as an instrument to do damage to another is a species of tortious liability which is unprotected by any statutory provision other than Section 13(3), is a matter of common knowledge to everybody that I have seen write upon the subject.

It is not only established by the case law to which I have referred. I do not wish to refer to my own writings in any way because they are derivative from other people's. If you look at Windfield on Tort, one of the greatest books superbly edited by Professor Jolowicz, you will find that this is referred to. If I may dare to refer to the late Professor Sir Otto Kahn-Freund, whom I am sure the noble and learned Lord will accept was the greatest labour law scholar of his era, he makes it quite clear in a number of publications that he understood the reason for the enactment of subsection (3). Indeed, it was in discussion with Professor Kahn-Freund that I, in the late 1960s, understood better the report of the Donovan Commission of which he himself was a member.

Therefore, I do not put this forward as some curious idiosyncratic and bizarre concept of mine; I put it forward on legal authority and on the basis of the Donovan Commission itself. I put it forward on the greatest authorities in the area of the law of tort and labour law. I rely upon them and accept them. If in the face of them the Government will not relent—not even to the extent of accepting Amendment No. 80J, which would strike at the repeal of Section 13(3) altogether (that is not what we have asked for now although that is what we really want)—if they will not relent even to the extent of constricting the repeal of Section 13(3), which is essential to primary strikes, to the ambit of what we regard as their grotesque Clause 16, then on the basis of that authority the Government, on the arguments that we have exchanged across the Chamber, are not honouring their own words, but are mistakenly (I make no attack on motive or intention) not living up to their own words of not attacking the legality of the right to strike. I propose to press this matter to a Division and invite Members from all sides of the Committee to vote for this amendment.

The LORD CHANCELLOR

Before the noble Lord carries his threat to dire action, I must say one or two things by way of answer to what he has said. Of course, it is possible that either of us may be wrong. I thought that I said as much in my original speech and, of course, I shall refer what the noble Lord has said to those who are better qualified than I to consider it, and then I shall consider their advice. But what I said and what I say now is that no question of principle is involved. He takes one view of the law; the Government's advisers take another. It is possible that either of us may be wrong. I happen to agree with those who advise me, otherwise I would not have put it forward.

Of course, conspiracy also is a tort and that includes the use of unlawful means. That is part of the classical definition of "conspiracy". But when Section 13(1) of the 1974 Act, as it is amended by the 1976 Act, carefully explains that there is a substantive immunity in respect of something which induces another to break a contract, or interferes or induces any other person to interfere with its performance; or: that it consists in his threatening that a contract of employment (whether one to which he is a party or not) will be broken; or its performance interfered with; or that he will induce another person to break a contract or to interfere with its performance, when those are the substantive words of the law, it appears to me—and would have appeared to me apart from the learning and industry of the noble Lord, Lord Wedderburn—that complete immunity is given in respect of the things in which it purports to give immunity and, therefore, the means are not unlawful, without any of the elaborate amendments which the noble Lord, Lord Wedderburn, claims to be matters of principle.

Lord WEDDERBURN of CHARLTON

As the mover of the amendment, perhaps I may say a few words in reply. The noble and learned Lord is right in what he says so far as he goes. The section that he quoted does not render the breach of contract itself other than unlawful means. Therefore, we have to register our disagreement with the noble and learned Lord, and in discussion with me my noble and learned friends and my noble friends have said that they regard the argument as such that we must press this matter to a Division.

9.39 p.m.

On Question, Whether the said amendment (No. 77N) shall be agreed to?

Their Lordships divided: Contents, 37; Not-Contents, 85.

CONTENTS
Ardwick, L. Janner, L. Ponsonby of Shulbrede, L.
Birk, B. Kaldor, L. Ross of Marnock, L.
Boston of Faversham, L. Llewelyn-Davies of Hastoe, B. [Teller.] Stamp, L.
Collison, L. Stewart of Alvechurch, B.
David, B. [Teller.] Lockwood, B. Stewart of Fulham, L.
Davies of Leek, L. Lovell-Davis, L. Stone, L.
Galpern, L. McCarthy, L. Strabolgi, L.
Gregson, L. Milner of Leeds, L. Underhill, L.
Hacking, L. Northfield, L. Wallace of Coslany, L.
Hale, L. Oram, L. Wedderburn of Charlton, L.
Hatch of Lusby, L. Peart, L. Wells-Pestell, L.
Houghton of Sowerby, L. Phillips, B. Whaddon, L.
Howie of Troon, L. Pitt of Hampstead, L.
NOT-CONTENTS
Ailesbury, M. Ferrers, E. Monson, L.
Alexander of Tunis, E. Fortescue, E. Mottistone, L.
Ampthill, L. Gainford, L. Mowbray and Stourton, L.
Auckland, L. Gowrie, E. Nunburnholme, L.
Bellwin, L. Greenway, L. Orr-Ewing, L.
Belstead, L. Gridley, L. Rawlinson of Ewell, L.
Berkeley, B. Hailsham of Saint Marylebone, L. (L. Chancell r.) Reigate, L.
Bessborough, E. Renton, L.
Boothby, L. Hankey, L. Ridley, V.
Brougham and Vaux, L. Hanworth, V. Rochdale, V.
Buxton of Alsa, L. Harmar-Nicholls, L. Rochester, L.
Cairns, E. Harvington, L. Romney, E.
Caithness, E. Henley, L. Salisbury, M.
Camoys, L. Hives, L. Sandford, L.
Cathcart, E. Hood, V. Sandys, L. [Teller.]
Cockfield, L. Hornsby-Smith, B. Seear, B.
Craigmyle, L. Hunt of Fawley, L. Sempill, Ly.
Crathorne, L. Keith of Castleacre, L. Spens, L.
Croft, L. Kemsley, V. Strathcona and Mount Royal, L.
Cullen of Ashbourne, L. Killearn, L. Torphichen, L.
De La Warr, E. Lauderdale, E. Trefgarne, L.
De L'Isle, V. Lindsey and Abingdon, E. Trenchard, V.
Denham, L. [Teller.] Long, V. Tweeddale, M.
Drumalbyn, L. Lucas of Chilworth, L. Vaizey, L.
Dundee, E. Lyell, L. Vivian, L.
Eccles, V. Mackay of Clashfern, L. Ward of Witley, V.
Ellenborough, L. Macleod of Borve, B. Westbury, L.
Elton, L. Mansfield, E. Young, B.
Faithfull, B. Massereene and Ferrard, V.

Resolved in the negative, and amendment disagreed to accordingly.

9.47 p.m.

Lord WEDDERBURN of CHARLTON moved Amendment No. 77P: Page 18, line 20, at end insert ("an employer is a party to a trade dispute and where").

The noble Lord said: This amendment also goes to the issue of primary industrial action, but in view of the hour I shall be brief. I believe this is a new point; from reading the Official Report of the debates I do not think it has been put to the Government before. I hasten to assure the noble and learned Lord the Lord Chancellor that it is a point which has been put to me. I have not, as it were, concocted it myself in that it arose in discussion, as ideas do, so it is not my brain-child. I put it to the Government with a request that they consider the matter and return to it on Report.

The definition of a trade dispute in Section 29 of the 1974 Act does, as did the Act of 1906, include within its ambit disputes between employers and workmen—"workers" in the new phraseology—or between workers and workers. In law, although not in reality, in the eyes of some of the actors in industrial disputes, disputes come to be analysed by lawyers often as between workers and workers when, in the eyes of those engaged in them, they are multi-party disputes, perhaps involving more than one employer and more than one union. The case, for example, on which the Government have been wont to rely in other matters; namely, Cory Lighterage v. TGWU in 1973, which the Lord Advocate has put to me a number of times, was such a case. It was a case where a non-unionist insisted on maintaining his non-union status in a 100 per cent. union practice situation in the docks. Under the Dock Labour Scheme the employer could not dismiss him but suspended him, and there was a trade dispute.

The Court of Appeal ultimately found, after lengthy argument, that this was a dispute between workman and workman. To the workers involved that seemed bizarre; that is to say, they thought that it was a dispute between workman and workman and the employer, in the sense that the trade unionists were not happy, and indeed Mr. Shute, the non-unionist, was not very happy, with all the things that the employer had done. I am not in any way criticising the legal correctness of that decision; but in the court room the disputes can frequently become worker against worker disputes.

This applies not only to demarcation disputes. As the Cory Lighterage case shows, the matter may involve a non-unionist with a unionist. It may involve two unions competing for recognition—a point which I press on the Government, because they are now about to take away the legal machinery whereby such disputes might be resolved via ACAS with a binding recommendation. It is arguable that there will be more recognition disputes. Therefore, if there were two unions competing with an employer in regard either to recognition or other matters, it is good legal advice to the employer to say: "Stand back and say that you are neutral, not in any dishonest way because there is a legal sense in which you are neutral, although of course you are not neutral in terms of wanting one thing or another from the dispute". So it is the case that many disputes, by the time they reach the court room, are arguably at least worker and worker disputes. It appears again and again in the law reports, as I am sure the noble and learned Lord Advocate will agree.

The importance of that point to this clause is as follows. The definition of secondary action is all-important in Clause 16. It is all important because if what you are doing is secondary action under the definition—not in layman's language; not, as was once said in this Chamber, in English, but in law—then you are within the clause, and you can escape only through one of the gateways to freedom: subsection (3), (4) or (5).

I am not criticising the clause in its construction. I am merely trying to analyse it. What I say, however, is that it has now become apparent—and one feels very foolish at not having seen this before; I am sure that the Government must have thought about this, and must be reconsidering it—because of the definition of secondary action, that industrial action taken in furtherance of a dispute between workers and workers in legal analysis must be secondary action. I say this because the definition, if I may read the relevant parts and not unfairly conflate the middle, says: For the purposes of this section there is secondary action in relation to a trade dispute when, and only when, a person— (a) induces another to break a contract of employment or interferes with it or threatens to interfere with it. The subsection later adds: if the employer under the contract of employment is not a party to the trade dispute".

So whenever the interference with the contract of employment is in a situation where the employer is not a party to the trade dispute then, within the new law, it is secondary action. Therefore, it follows again, as the night follows day, that if there is a trade dispute between worker and worker where there is no employer party to the trade dispute, all action which is industrial action must in law be secondary action.

Of course, the workers involved would be astonished at that situation, because what they are doing is taking primary action against their own employer. Let us take two groups of workers, each of which is on strike and is in some way in competition, each claiming different things from the employer, as in the Cory Lighterage case. The employer is held by the court to be a neutral, which he may or may not establish. So what we reach is a redefinition of trade disputes in effect through the secondary action definition.

Therefore, I ask the Government, first, whether they will accept the amendment, because the amendment is a way of dealing with the matter. It may not be perfect, but it is a way of dealing with the matter in that from the definition of secondary action there is taken this element by adding the words that it applies where: an employer is a party to a trade dispute".

Obviously, the rock upon which Clause 16 is built is that there is an employer party to the trade dispute. You cannot get through the gateways to freedom of subsections (3) or (4) unless there is an employer party to the trade dispute. Therefore, if you have a trade dispute with no employer a party, primary action in furtherance of that is necessarily unlawful. I cannot believe that that is the Government's intention. I very much hope for an assurance that they will come back to us on this matter on Report, even if they cannot meet this amendment. I beg to move.

The Earl of GOWRIE

The