HL Deb 17 May 1971 vol 319 cc6-34

2.45 p.m.

THE MINISTER WITHOUT PORTFOLIO (LORD DRUMALBYN)

My Lords, I beg to move that the House do again resolve itself into Committee on this Bill.

Moved, That the House do again resolve itself into Committee—(Lord Drumalbyn.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD DERWENT in tie Chair.]

Clause 31 [Pressure on employer to infringe rights of workers]:

LORD STOW HILL moved Amendment No. 238: Page 24, line 27, leave out paragraph (c).

The noble Lord said: This Amendment seeks to leave out paragraph (c) of subsection (3) of Clause 31. Here we are back again in the area of the closed shop agreement. One is at risk, in moving this Amendment, of going over again ground that has already been explored, so I shall do my best not to rehearse arguments to which your Lordships have already listened in previous discussions. The object of paragraph (c) is to make it an unfair industrial practice for a trade union to try to bring pressure on an employer, or on an employers' association, to make a joint application for an approved closed shop under the terms of Clause 16 and Schedule 1. I submit that that is really an unfortunate provision, for reasons which I shall seek to deploy rather more fully.

At the outset may I say that the basic reason which underlines all the considerations which I desire to advance is that, after all, the whole object of the legislation is to try to promote stable and peaceful industrial relations. In my submission, this provision is bound not only to be completely ineffective but, in so far as it has any effect, to produce precisely the opposite result and exacerbate relationships and, indeed, to constitute a constantly present irritant between the two sides. I am quite certain that I shall be in agreement with the noble Lord who replies to the debate in saying that there should at least be certainty in the wording of the provision so that those who are concerned on both sides of the fence know precisely what their position is.

The first point which I should like to put before the Committee is that the wording of the provision introduces a very unfortunate degree of uncertainty, for the following reason. In this clause for the first time the expression, " irregular industrial action short of a strike " is defined. It is defined in subsection (4) which I shall not for the moment read, and that definition reappears in various contexts throughout the Bill. By this clause it is made an unfair industrial practice, with a view to inducing an employer to join in an application for an approved closed shop, first, to call, organise, procure or finance a strike or threaten so to do; and, secondly, to organise, procure or finance any irregular industrial action short of a strike or threaten so to do. I am sure that this at least must be achieved by whatever language ultimately appears in the Bill; that one must know what is, irregular industrial action short of a strike ". If that definition is not a satisfactory and clear one, which gives an exact Yes or No in any given situation where pressure is exercised, it must necessarily result that uncertainty intervenes which will poison relationships and induce uncertainty in people's conduct.

The definition of, " irregular industrial action short of a strike ", as set out in subsection (4), is: …any concerted course of conduct (other than a strike) which, in contemplation or furtherance of an industrial dispute,—

  1. "(a) is carried on by a group of workers with the intention of preventing, reducing or otherwise interfering with the production of goods or the provision of services, and
  2. "(b) in the case of some or all of them, is carried on in breach of their contracts of employment or (where they are not employees) in breach of their terms and conditions of service ".

For there to be " irregular … action short of a strike ", two things are requi- site. There must be an intention on the part of those who engage in that conduct to prevent, reduce or otherwise interfere with the production of goods or services. That, I should have thought, was simple enough. In a given situation the answer can be given, " Yes " or " No ", whether that is the broad intention of those who initiate the action in question. But the second requirement, I should have thought, really was very difficult to apply. What is requisite is that that action is action which in the case of sonic of them or all of them, to quote the actual words, is carried on in breach of their contracts "— that is, their contracts of employment or their contracts of service, as the case may be.

The question I should like to put to the Government is this: How does that definition impinge upon, for example, a " work to rule "? How does it impinge upon a " go slow "? This is a field in which, as your Lordships will know, my experience is limited, although my interest is very great, and I should not have ventured upon it without asking advice from those who are very much better versed in these matters than I am. After receiving that advice, I think I may say, as I would have said before receiving it, with some degree of confidence, that the primal feature of a " work to rule " is that you do not break your contract. It is characterised, if anything, by a rather excessive adherence to rule; an excessive observance of the actual terms of a contract. In the various other forms of industrial pressure that one knows of. which generally and comprehensively one refers to as a " go slow ", the action of those who perform the work may be carried out so slowly as obviously to transgress what could be regarded as a reasonable degree of hesitancy and moderation in speed. But it may not be. The slowness may be great or it may be less. It may be such as to he no more than a rather unhurried execution of the duty of the person concerned which could not possibly be said to amount to a breach of contract on his part; and I am advised that under the term " go slow " there are varieties of different sorts of pressure which are in fact exercised from time to time in the furtherance of industrial disputes. In the mining industry, I think there is a restricted work concept which involves, again, the same sort of thing but which could not possibly be said, as I understand it, to involve a breach of contract.

If I am right so far, it would mean that the definition of " irregular industrial action short of a strike " certainly would not apply to a " work to rule "; it would apply to some " go slows ", but it would not apply to others; and there are various other forms of pressure to which it would not apply. What is an unfair industrial practice in terms of this clause is either engaging upon that type of irregular industrial action, or even threatening so to do. When you make the threat you do not know even in advance whether a breach of contract is likely to result or will necessarily result or not. I frankly and at once concede that it is extraordinarily difficult to find in terms of legal language a satisfactory definition of the sort of thing which I believe those who are responsible for the Bill have in mind. I concede that it is difficult to do so, but surely it is highly unsatisfactory if the form of definition which is in fact employed, not only in this very crucial clause, but throughout the Bill, will leave it very uncertain how the question in any given situation ought to he answered: is it or is it not " irregular industrial action short of a strike "?

If one looks at the other provisions of the Bill to see what happens to you if you are found to have been guilty of irregular action short of a strike, or an unfair industrial practice of which that is part, the consequences, as your Lordships know, can be very serious indeed. The claim, as I believe, is brought under Clause 97 of the Bill, and if a claim is brought in respect of an unfair industrial practice within the meaning of Clause 31 of the Bill under the provisions of Clause 97 a court can in the first place make an order determining the rights of the complainant and the respondent; secondly, can award compensation; and, thirdly, can make an order directing the person responsible to refrain from continuing to take that action and to refrain from continuing any other action of a like nature in relation to the complaint. Deliberate disobedience would result, I suppose, in a motion for contempt, to attach the person of the defendant who was in contempt of the order of the court.

That is what can happen; and compensation, one knows, is also described in very broad terms. I think it is in Clause 110 of the Bill. Your Lordships know the limits set out in Clause 112 in the case of a union having a membership of £100.000 or more. It is £100,000. I am not suggesting for a moment that any reasonable court would in all cases determine the amount of compensation at £100,000, but you might well lave a case where there were five or six employers who joined in proceedings, and each of whom would be awarded compensation, and one does not know what that would amount to. Not only that, but each of the limbs of the unfair industrial action set out in Clause 31 is a separate one. If you call a strike you commit as act which is an unfair industrial practice; if you organise it, that is another ct; if you procure it, that is another; if you finance it, that is another; if you threaten to do so, that is another; if act engage in any of these uncertain forms of conduct which tire described as " irregular industrial action short of a strike ", that is another; if you threaten to do so, that is another. I suppose all of that could theoretically be taken into account in assessing what the compensation is to be; and all that is put into this Bill with a view to achieving a quiescent and friendly state of industrial relationships between the two sides in an area in which it is wildly optimistic to think that the most intense pressures will not from time to time certainly arise.

The approach of the two sides of the Committee as to the closed chop situation started out by being much wider than it is now because the Government have introduced Clause 16 and the approved closed shop procedure. They have made a substantial concession in that regard. But that has to be as a result, as your Lordships know very well, of a joint application, and if there will constantly be the situation open where there is no joint application; where there may be a closed shop when the Act came into force which, on the corning into force of the Act, becomes unlawful; where it may take months to get an approved closed shop into operation even if there is a joint application.

I am not one of those who thinks that the atmosphere is peopled wholly with "sharks" who seek to take advantage of their fellow citizens. But now and again there will be the case of a union, well organised, doing its level best to introduce orderly relationships to try to promote stable negotiating procedures, on the one side, and an unco-operative difficult employer, on the other, who for one reason or another (whether to gain any advantage or to bring his own form of pressure) refuses to join in a joint application with the union. In that situation, months and months will go by with tempers growing heated, and ever in the background the threat that if the union does what it would be very sorely tempted to do to try to bring some pressure to bear more effective than merely polite words there is the threat of their being brought before the court and having the remedies awarded against them that I have described. I hope I am not repeating arguments, but with respect I submit that this is such an important crux in the framework of this agreement that it is justifiable to ask with some urgency that the situation should be looked at again. This sort of provision will have precisely the opposite result to that which everyone wants to achieve. I urge the Government to agree that it should be left out.

I may be asked, " What alternative do you propose?". At least this is worthy of consideration. From this side of the Committee the view has been expressed over and over again that the courts should not be brought into this field of human relationships. But the Committee have already approved clauses in the Bill, including in particular Clause 16, which involve the intervention of the courts. When we were considering Clause 16 it was suggested from this side that it was a great pity to enable the court to order an approved closed shop only after the making of a joint application by the trade union and the employer. It was urged that it would be better to equate the position of the application for an approved closed shop with the application for an agency shop; in other words, to enable the trade union, in spite of opposition from the employer, to make that application. If we are going to have the courts intervening in this field at all, is it not better to vest in them a function of this sort rather than to leave it to fester as a source of dispute if the situation remains as it will be with this particular provision, paragraph (c), remaining in the Bill?

I ask the Government to give further thought to this point. I am not trying to be obstructive. I think that this is really a serious blemish on the Bill and I would urge on the Government at least to think whether it would not be better to go back to what was suggested and to say that at any rate an application for an approved closed shop can be made by the union of their own accord without the co-operation of the employer. The court can then decide that there should be a ballot and so on; that will obviate the situation at present incorporated into the Bill. I ask the Government to say that they will accept the Amendment as the first stage in a remodelling of this part of the Bill. I beg to move.

3.3 p.m.

LORD SLATER

I rise to support my noble and learned friend Lord Stow Hill. Noble Lords will remember that on a previous occasion I cited the mining industry, in which I spent over thirty years as an employee working down below. If we entered into negotiation with the management to arrive at an agreement for the production of coal, whether on piece rates or otherwise, and if we were not satisfied with the terms of a particular offer, we were entitled within the terms of our employment to carry out a form of restriction until we had reached agreement. That was nothing new so far as the face-workers on piece rate were concerned. They were entitled to do this provided that they were able to produce enough to achieve what was known in those days as the minimum wage rate. An Act dating as far back as 1911 fixed the minimum wage rate for those working at the coal face. Therefore the individual was able to restrict his labour to that extent and he did not have to work to his full capacity. A face-worker had two factors to consider. The first was " overdoing it ", which would be detrimental to his health; the second was that some people could not get themselves " linked up " because they had not the energy to keep up with their partners who were working as a team at the coal face. Therefore we had no particular action taken against us in the matter of restricting our labour so long as we were able to clear the minimum wage rate under the 1911 Act.

I should like to ask a question of the Minister who is to reply. Before doing so, I might mention that in those days we were allowed 25 minutes travelling time per mile to our working place at the coal face. Someone of the team carried a watch and noted the time at which we first descended into the mine; and at the end of the shift this travelling time was taken into account before we left the coal face. Let us suppose that on the way out we meet an official who may stop the party and say, " You are two minutes before time according to my watch. I am going to take your names. You will report to the management at such-and-such a time." Shamefacedly, we had to report to the management—simply because an official had said that according to his watch we had left our work two minutes before time. This despite the fact that we had checked the time of starting and finishing by our own watch. What would happen in a case like this, where the management wanted to take action against miners because it was reported to them that the miners were two minutes early? I should like the Minister to give an answer because this is most important; for there must be a time fixed for travelling for these people underground. What should be done in these circumstances?—the workers are keeping to their code of conduct, yet the management say they are not and impose penalties. I should like the Minister to help me in this matter.

3.8 p.m.

LORD PARGITER

There is one case that I should like the Minister to deal with. I will put it in a hypothetical form, but it occurs in practice. The employers want to alter the conditions of work in some way or the other which is contrary to the previous practice. The workpeople may say, " We are prepared to look into this; but we are not going to do so under these conditions. However, if you are prepared to join in an application for a closed shop, we are prepared to consider this change in the nature of our work." Would that be an unfair practice? I can imagine that it could be argued that it is an unfair practice, that the workers could be considered to be bringing pressure to bear. Or the other hand, the employers are bringing pressure to alter the existing practice, and they will use what methods are available to them. It seems to me that under his clause the workers may want to use this particular argument: to say, " Let us have a look at the possibility of a closed shop ", because they might agree to lo certain things within the ambit of a closed shop which they would be unwilling to do outside it. That is the important thing. I need not put it at any greater length. I should like to know precisely what the Minister means and whether he would say that this would be regarded as unfair practice on the part of the workpeople in asking an employer to join with them in an application for a closed shop.

LORD DAVIES OF LEEK

In this world of cybernetics, and this new living tool that can almost think—automation —conditions inside a shop cm change from time to time and within a matter of a few months new types of tools for doing a job can move a certain small number of people who have a skill. The Donovan Report was specific in saying that they did not like fragmentation of claims, sheltered claims aril so on—I am speaking from memory, of the Report. I think we are in deep water in trying to legislate for a moving civilisation and rapid movement inside industry when we try to categorise as tightly as Clause 31 has done. Consequently, I hope that when the Minister comes to reply he will bear this in mind.

LORD LEATHERLAND

I do not want to follow my noble friend into the realm of cybernetics, I want to be more simple. We frequently read in the newspapers of groups of workers who decide to work to rule. That broadly interpreted means that they are putting aside their normal customs and tempo and are reducing the output of their labour to a scale laid down within certain laws and by-laws appropriate to their particular occupation. In the case of the railways, we know that the by-laws impose strict restrictions upon employees: they must see that every door of every carriage is properly fastened and so on. There are occasions when the workers, because of some grievance, decide that they will put aside their usual speed of practice and revert to the official requirements laid down in the rules. Another case concerns buses. I presume, although I cannot produce the by-law, that there is a by-law in London which requires drivers to keep buses to a speed of 30 miles an hour in certain districts and perhaps 40 miles an hour in others. We know that there is sometimes a long jam on the bus routes, and drivers, knowing that an inspector is standing at a bus stop three miles away, decide, wickedly perhaps, to exceed the speed laid down in their working instructions for the next mile or so. Ship workers are certainly restricted, in the interests of public safety, in a good many ways. It may be that in an emergency, or because the ship is behind time, one or two of the usual precautions that are observed in normal circumstances are allowed to slip.

We know that stringent rules are laid down by the Factories Acts for places of manufacture. It may be because a rush job is being executed, probably for export, that one or two of those regulations are allowed to slip for a moment. If a worker deliberately slows down—let us put it as bad as that—in order to bring himself within the standards laid down by the law of the land or the bylaws of his public corporation, has he committed an irregular industrial practice which would make him liable under this Bill? Which Bill is the boss, this Bill or the existing Factory Act, the railway by-laws, the navigation by-laws, and so on? A man is going to find himself in serious difficulty if he has to decide between the two.

LORD DRUMALBYN

The noble Lord, Lord Stow Hill, really raised two separate issues, although they were inter-linked, as I am sure he realises. The first related to the Amendment in question, which is to leave out the words— to induce an employer or an employers' association to join in making an application under Part I of Schedule I to this Act. That immediately raises the question which the noble Lord, Lord Pargiter, raised regarding the meaning of " induce ". Within the context of this clause, what it means follows on from what has been said above— to induce an employer, or a person acting on behalf of an employer, to take any action which (whether by virtue of subsection (1) of this section or otherwise) is or would be an unfair industrial practice… If you look back to subsection (1) you find out what is there covered, and that is the question of dismissal. In this particular paragraph (c) we are dealing with a different matter altogether; that is, with the closed shop. In this context " induce means what is laid down in subsection (2)— this Section applies to action of any of the following descriptions, that is to say—

  1. (a) calling, organising, procuring or financing a strike. or threatening to do so
  2. (b) organising, procuring or financing any irregular industrial action short of a strike, or threatening to do so."
I thought the point the noble Lord raised was more a question of negotiation than pressure, and it is pressure that we are dealing with here. I see the noble Lord, Lord Brown, indicating a little surprise. He may think it is difficult to sort this matter out. We are dealing with pressure of this particular kind: strike action and irregular industrial action. I think one can clearly distinguish that from argument and persuasion, and " inducing in this sense is related to this form of pressure. The noble Lord, Lord Stow Hill, went on to deal with a particular form of pressure which is referred to in subsection (4) and which I thought would perhaps be debated on whether the clause shall stand part. But there seems no reason why we should not debate it at the present time.

LORD HOY

If I may interrupt the noble Lord, may I say that we do not differ from the words he has read out. Perhaps he would care to give your Lordships examples of what he means and against which he is going to take measures under this Bill.

LORD DRUMALBYN

I apologise to the noble Lord, but I am not quite clear what he is asking me to do.

LORD HOY

The noble Lord read out five ways in which he said that action might be taken, and they are the words in the Bill. Would he give us examples of what he means?

LORD DRUMALBYN

In this Amendment we are talking about inducing an employer or an employers' association to join in making an application. The application is under Clause 16 and Schedule 1 —that is, for an approved close shop. There are many other applications that come into Part II, but then applications do not apply here. We are not talking about a dismissed employee's application. This is a fairly narrow matter and I hope I have made it clear to the noble Lord.

LORD PARGITER

I confined myself to a very narrow point on the Amendment. with a view to getting a fairly precise answer. If I understood the Minister aright, he would say that where an employer wants to change a practice in a workshop and the employees say, " We are prepared to consider this provided that you join with us in making joint application for a closed shop ", he would regard that as negotiation and not pressure. Now supposing the employer says, " I am not prepared to do that, but it is obvious that the practice ought to be changed " and the employee still remained obdurate, would that then become pressure " or would it still be negotiable?

LORD DRUMALBYN

If the pressure were directed towards persuading the employer to agree to make an application for an approved closed shop agreement, then in that case it would be caught under the Bill quite plainly. But it is very difficult to say in any given circumstances why an employer would agree to make an application, and all that the Bill says is that the employer and the employees, or the trade union, must agree together on making an application for an approved closed shop. I would myself have thought that an employer would not be very ready to barter away his particular responsibilities in this matter even although, taking the matter by and large, he might be persuaded in certain circumstances. I am afraid that that is the best answer I can give the noble Lord for, after all, it is not possible to pry into the minds of men as to why they agree to a particular thing. All I am saying is that in the light of the responsibilities that are placed upon the employer in regard to approved closed shop agreements, he will obviously need to have very special regard to the need to respect his duties under Clause 5 of the Bill, for example—the duties that are laid upon him not in any way to interfere with an employee's right to belong or not to belong to a union.

LORD DELACOURT-SMITH

How does that arise when it is a question of making an application under the appropriate clause of the Bill? Surely an employer cannot consent to a joint application under the first part of Schedule 1 of the Bill, unless he has taken it into account. It is quite automatic once he has agreed to this application that he is consenting to embark upon a course which limits some of the individual's entitlements under Clause 5.

LORD DRUMALBYN

That is precisely w hat I am saying. He must have regard to the consequences of I is agreeing to make an application for an approved closed shop. and I was saying that I did not think—though I cannot pry into the minds of men—that employers would barter away these consequences for a very cheap price. I cannot take the matter further than that, quite obviously. The noble Lord knows better than. I do the facts of negotiations in industrial life.

I was just coming to the question of irregular industrial action short of a strike. The essence of this was quote clearly pointed to by the noble Lord, Lord Stow Hill, when he pointed out that in the case of some or all of them this cleans any concerted course of conduct which is carried on in breach in their contracts of employment or in breach of t their terms and conditions of service. In the main, of course, in an industry where there is a rule book or anything comparable to it, it is part of the contract of service that the rules contained in that rule book should he observed. so that where there is a breach of the rule book it would follow there is also a breach o' the contract of employment. T think that on the whole question of working to rule, people have some vague idea that If e rule is also some other rule—possibly a rule of the trade union, or something of that kind. This is not so at all. We are purely concerned with the breach of rules contained in the rule book, and if the rule book is unnecessarily rests active, or indeed in some cases absurd, it is usually a matter for normal negotiation! between the employer and the trade union to get this situation sorted out. But so far as this provision is concerned, so long as the employees stuck to the rule book they would not be in breach of their terms and conditions of service and they would then not be guilty—I use this word Loosely— of committing irregular industrial action short of a strike.

There are cases where there is no rule book, and in such a case one would have to take all the facts into account and make a judgment as to whether subsection (4)(a) was then being covered—a concerted course of conduct which is carried on by a group of workers with the intention of preventing or otherwise interfering with the production of goods or the provision of services. One would have to rely on that alone and not on both at the same time. Noble Lords may say, " Is this likely to be accepted. Will it work fairly in some cases?" In some cases it will work one way where there is a rule book, and in other cases it will work in another way where there is no rule book. But that is entirely to ignore the spirit of this provision, and of course this prohibition of irregular action in support of unfair industrial practices runs right through the Bill.

LORD BROWN

May I make a short remark? The noble Lord has made repeated references to the rule book. I now understand what he means because he has explained it, but I think it is likely to lead to misunderstanding because what he is referring to are in fact agreed policies between the employee and the management which form part of the contract of employment. Reference to the rule book inevitably means to some people reference to the union rule book.

LORD DRUMALBYN

I have just said that people confuse the two. I am grateful to the noble Lord if he has made it clearer that I did.

LORD BROWN

Is there not another term that could be used?

LORD DRUMALBYN

The words " rule book " do not appear in the Bill, which relies entirely on breach of contract or terms of employment, or terms and conditions of employment. My argument was that this was often linked with the rule book.

LORD LEATHERLAND

If the noble Lord will pardon me, this is a point I raised. Let me put it quite simply in terms of one industry. In the railway world there is a rule, and in order to convenience the public railway men often ignore that. Let us assume that the railway men cultivate a grievance. They will say: " We will work strictly in accordance with the rule book ". That means a slowing down of travel. By working strictly to the rule book, which has almost legislative authority, are they contravening the Bill?

LORD DRUMALBYN

If they really stick closely to the rule book and carry out those rules with normal efficiency and without undue delay—

SEVERAL NOBLE LORDS

Oh!

LORD DRUMALBYN

Certainly. The noble Lord must permit me not to give way. I am well aware that there are many peculiar provisions in the rule books. I remember being held up for one and a half hours at a station while successive trains went through because we happened to be in a position where the " up " trains had to go in on the " down " platform because the " up " platform was closed. That meant according, to the rule book—or so I was informed—that a man must go out with a lantern and lead each train in. This happened with one train after another. I should have thought that they might have had a man with a lantern posted ready in each place, but instead of that the same man came in and went out and came in and went back again, and the result was that the train was one and a half hours late. I quite agree that these things can happen, but this is a case for the alteration of the rules, if they are absurd and anachronistic. What the Bill seeks to do is to get proper procedural agreements so that this type of anachronism which is standing in the way of efficiency and progress in this country shall be removed. All I am saying is that we must deal with the situation as we see it. I am now being asked about conformity with the rule book. I am merely advising the Committee that as matters stand, if the rule book is part of the contract of service it is sufficient, so long as you can show that you are really conforming with the rule book; but in doing so you must not add additional rules or additional delaying action of your own.

LORD POPPLEWELL

The more the noble Lord speaks on the rule book the more he indicates his complete ignorance of what he is really talking about. As a railwayman of many years standing, knowing the railway rule book and knowing the penalty that has been inflicted on me because I have broken the rules—for instance, one can be in the signal box in the marshalling yard, an engine comes along, it goes back shunting, you place the signals at danger and it stops out in the yard for 10 or 15 minutes without giving any indication; but if you move those signals you have broken the rules. That is the kind of thing that shows the total unreality of this line of approach.

LORD DRUMALBYN

Perhaps the noble Lord will allow me to continue with my speech, because I think his intervention is beyond merely drawing attention to a particular point. I think I should be allowed to complete my speech.

I hope I have now left the Committee with the impression, which I believe to be the correct one, that irregular industrial action short of a strike must mean the preventing, reducing or otherwise interfering with production and must also be in breach of the contracts of employment—and this is where the two sides of the argument are linked. Where there is a practice which is unfair, it is unreasonable for anybody to act to achieve that purpose; and under the Bill that is an " unfair industrial practice ". These practices are all defined in the Bill. That unfair industrial practice will lay the person who indulges in it open to the action that is envisaged and which the noble Lord, Lord Stow Hill, mentioned. There can be a complaint against the action and as a result of that there may be either a definition of rights or an order to stop doing what you are doing, or not to do again what you have done, or there may be compensation. I cannot believe that anybody really disagrees with that as a principle.

The question we now have to consider —and this is the point raised by the noble Lord—is whether to induce an employer or employers' association to join in making an application for an approved closed shop is or is not unfair. I believe that it is unfair, because the Government have made it clear throughout that what they are seeking to do is at the same time to preserve individual freedom and to get order in industry; and they do this by providing means of access to an agency shop agreement. We believe that it will he entirely exceptional to get approval of a closed shop agreement. Indeed as those of your Lordships who were present during the debates will know, it is certainly not going to be easy, with the gateways that we have established, to get an approved closed shop agreement.

We also think that because of the need to preserve the rights of the individual in this regard it is right that both the employer and the union should agree that the closed shop is necessary in terms of Schedule 1 that we have discussed: that it is necessary, that it is to be desired and that it is in their joint interests. We believe that it would be most undesirable to provide for the establishment of a closed shop agreement against the wishes of the employer; in effect to allow industrial action to be taken to force an employer into a closed shop agreement. After all, the approval of a closed shop will impose on the employer a duty to deprive his workers of their livelihood if they refuse or are unable to join the trade union, and we believe that such a condition of employment can be approved only in the most exceptional circumstances. It is on these grounds that we have added paragraph (c), to make it an unfair industrial practice to induce an employer, by strike action or by irregular action short of a strike, to join with the union in an application for a closed shop. It for these reasons that we do that and lye believe that we are right in so doing. I hope the Committee will agree with me in that contention.

3.38 p.m.

LORD SHIN WELL

Never have I heard the noble Lord, Lord Drumalbyn, less convincing. Frequently in the course of our debates I have thought that he was (if I may say so without any condescension) very effective, within the ambit of the proposed legislation, but he seems to be arguing with himself; trying to convince himself. Indeed he travels much wider than the clause requires. For example, he spoke about this being the essence of the provision now being debated; he spoke about a group of workers seeking to impede an employer making an application in relation to a closed shop. Then he referred to " strike action or irregular action short of a strike ". The words "irregular action short of a strike", not only apply to this clause but are related to many other items in the proposed legislation.

When the noble Lord sought to define what " irregular action short of a strike " meant he said" concerted action ", and if there was any doubt about whether it was concerted action then those who were responsible for exercising their judgment must rely on the facts. But he did not state what the facts are, except to furnish an illustration out of his own experience. Of course, it must have been a great nuisance to the noble Lord, Lord Drumalbyn, to find a number of trains passing through the station and that he was left in the lurch; but what he has failed to recognise throughout the whole of this debate, despite all the questions that have been asked by my noble friends, is whether it was desirable, in the interests of safety and in order to protect the travelling public, to have a book of rules that have been in operation for many years.

In effect, what he said—and I do not know whether my noble friends noted it —was that if there is an operation that appears to be unfair (for example, if it is unfair to the travelling public) and it happens to impede an employer in making an application for a closed shop, then we want to alter the rule. That is what he said. There is no provision in this legislation for altering the safety rules which relate to the railway service. By what authority did he say what he said? If there is such an intention, may we have it disclosed? From whence does it derive? Is it the intention of the Government to go further than what is contained in this legislation and to make some rearrangement about the safety rules affecting the railway service; or to alter the Factories Acts or anything of that sort?

LORD DRUMALBYN

I think the noble Lord, Lord Shinwell, has misunderstood what I said. I was talking about the rule book, the rules that apply. I said this was a matter for negotiation. The rules have to he laid down by the employer. He cannot change them—and I think it undesirable that they should be changed—without consultation with the employees. I was talking about that being linked with the contract of service. I said nothing whatever about the desirability of altering a particular rule. I merely quoted an example of what happens when a particular rule of this kind is applied; I made no comment on whether or not it should be altered.

LORD SHINWELL

With respect, the noble Lord did not reply to the pointed and pertinent question put by my noble friend Lord Leatherland. He gave an illustration of the rules which operate in the railway service and asked what would be the position of the worker who continued to operate the rule. I am not saying it is a good rule: most of us have been inconvenienced by it at some time or other. I am inclined to repeat what I said about the experience of the noble Lord, Lord Drumalbyn. It is a fearful nuisance, when one is seeking to reach one's destination, to discover that a particular rule is being operated. It may have been in operation since the beginning of the railway system; but the point is that it exists. Now we have discovered that in the exercise of judgment on whether a group of workers or a particular worker have sought to impede an application by an employer in relation to the closed shop, and this rule operates, it will be regarded as an irregular action—is the noble Lord, Lord Drumalbyn, saying that it is not irregular? Will the noble Lord say it is a regular action?

LORD DRUMALBYN

What I have said is that if there is something in the rules, and the rules are part of the contract of employment, any action in accordance with those rules will not be an irregular action. I went on to say that of course not all the rules are perfect; some are anachronistic, and they ought to be brought up to date. I am trying to explain to noble Lords that this paragraph is not so terrifying as it looks, but is intended to have a psychological effect, and to show that action which is irregular and reduces production, and is outside the contract of employment, ought not to be permitted; and to take such action for unfair purposes is an unfair industrial practice.

LORD SHINWELL

I am sorry to pursue the matter, but the noble Lord has delivered himself into my hands, lock, stock and barrel. He says that if the rule is a bit of a nuisance what ought to happen is that it ought to be brought up to date. Who is going to bring it up to date? When what is regarded as unfair industrial practice comes up for judgment, who is to be responsible for exercising the judgment? This is all left in the air. It is not good enough. There ought to be precision about this legislation. Workers ought to know where they stand and what is going to happen to them. It ought not to be left subsequent to an action taken by a group of workers.

I come back to the point that we have still not had a definition of what is an irregular industrial practice. What is it? The noble Lord has talked about concerted action. What does he mean by "concerted action "? It is a very vague, ambiguous and nebulous term. Is concerted action an irregular industrial practice of which a man may be found guilty? Will the noble Lord say whether that is what it means? I am bound to say that this is the least convincing reply from the Government that I have heard during the whole of this debate, and this is a very important matter.

As my noble friend Lord Stow Hill brought out so vividly, under a subsequent provision of the Bill, a union could be liable to pay £100,000 compensation if not only one employer but also a group of employers had been impeded in their desire to have a closed shop. The employers could be awarded £100,000 each. That is what is proposed in the Bill, and the noble Lord, Lord Stow Hill, was only too right when he said that, instead of trying to promote industrial relations of an orderly and constitutional character, we shall he in for more trouble. Is this what the Government are driving at? Sometimes I think they are; that they are out for a row. Have they not enough rows on their plate already, with what is happening in Europe—about which we are to hear this afternoon—and elsewhere, and with 800,000 unemployed, without trying to drive the workers of this country into more turbulence? If that is what they want, they are going to get it.

LORD SLATER

I posed a particular question because the matter comes under two measures. What is going to happen when this Bill becomes an Act? Provision is made for travelling time for a miner of 25 minutes to the mile when travelling underground. My noble friend Lord Shinwell referred to irregular industrial action. If men are caught coming out of a mine two minutes before their time, under what legislation would the management have power to take action against them? Would it be under the provisions of this Bill or under the 1958 legislation?

LORD DRUMALBYN

As I tried to explain to the noble Lord, whether an action has been an unfair industrial practice depends on the purpose of the action. I did not understand from the noble Lord that these men had started early. But even if they had, it was because they had a purpose: to establish a closed shop or anything else branded as an unfair industrial practice. I thought that the noble Lord was slightly "off beam " in his example, although I quite understand that he has had a traumatic experience.

BARONESS GAITSKELL

May I ask the noble Lord, Lord Drumalbyn, a very short general question? It is very difficult for me, not being a lawyer or a trade unionist, to follow this very crucial clause. May I ask whether the Government regard all concerted actions as irregular?

LORD DRUMALBYN

No, but they do regard all irregular actions as concerted where they are agreed upon by several people to achieve 2 certain purpose.

3.49 p.m.

LORD BROWN

I find myself in some disagreement with the noble Lord, Lord Shinwell, who is seeking more detail. I suggest that this sort or argument will come up many times in the discussions on future Amendments. The real cause of the argument is that the proposed legislation delves very deeply into very important things and deals with them at too superficial a level. Here we are concerned with three things: persuasion, use of authority and power. We understand what persuasion means. Authority ought to be defined somewhere in this Bill as being the right to act on the basis of policy and rules which have been agreed. Power is the right, unilaterally, to cause disruption in support of some activity which you want. If these conceptions had been understood and defined, one could deal with clauses and subsections such as this very much more simply. The argument that has been going on for the last half-hour is really about the authority which arises through agreed procedures. If those agreed procedures exist then the authority exists; but if they are not agreed, power must not be used in their place. That is what the Bill is trying to say. I agree with what the Bill is trying to say, but it has been said in a way which is on too high a level of superficiality.

3.50 p.m.

LORD POPPLEWELL

The whole essence of this argument once more highlights how impossible it will be for this legislation to work unless lawyers are brought in to interpret it. There has been much talk about rule books and suchlike, but what are those rule books for? Particularly on the railways they are to ensure the safety of the public. When a body of railwaymen decide, because they are arguing for a given action, that they will work to rule, what is to be done about it? This just indicates how difficult it will be to define " an irregular industrial action." Of course the Government will not move on this matter. One can understand that; but it once more highlights how ridiculous the Bill is and the impossibility of working it.

LORD ARWYN

In addition to the reference to railways and their main problem, I wish to draw the attention of the Minister to the Mines and Quarries Act. If a mine or a quarry is run in accordance with the Act, production is bound to be decreased. Is that an " irregular " practice? I have been in mining and quarrying all my life and I know that if any manager sticks to the rules and enforces them the output from the quarry is diminished. I should like to have some enlightenment about this question, especially on this clause. The Bill is already known as a personnel manager's nightmare.

3.52 p.m.

LORD DELACOURT-SMITH

I think the noble Lord, Lord Drumalbyn, is getting into some deep water, although it is nothing like so deep as the water will prove to be if the Bill in its present form becomes an Act and anyone actually attempts to apply the subsection to which some of my noble friends have directed particular attention, and to which perhaps we shall return on the Question, Whether the clause stand part of the Bill.

I wish to focus attention for a moment on the purpose for which these formidable penalties are being threatened. They are threatened against anyone who seeks by action specified in this clause to induce an employer or an employers' association to join in making an application under Part I of Schedule 1. I want to press the noble Lord on the point I raised earlier and with which I am bound to say I do not feel he dealt very satisfactorily or convincingly. That is the question of whether or not the delays which it will be possible for reluctant employers to impose are likely to be such as to cause very considerable frustration, which might well express itself in action or the possibility of action which would be caught under some subsections of this clause.

Is the Minister satisfied that the arrangements envisaged in the Bill are not such as to enable delayed action to be taken, even when there is a very clear case for a closed shop to be established and even when a substantial number of responsible employers are concerned and would like to see such a closed shop established? If, for example, on the employing side there is an organisation and not a single employer, are not the possibilities of delay greatly extended? Is the Minister satisfied that there is anything reasonably fair in threatening working people or their representatives with the draconic penalties under the Bill? Unless he is absolutely satisfied that there are no possibilities by which delays can be imposed on the procedures in the Bill—and those procedures are not very satisfactory; in fact, they are very unsatisfactory in any case—if they are to be subject to substantial delay, the position will be come intolerable and patience will reach breaking point. Has this factor been considered, and are the Government satisfied that there are not possibilities of delay on the part of employers in seeing the procedure carried out expeditiously if it is likely to lead to a result about which they are not very keen?

Secondly—and this, I think, is the last point on which we shall concentrate attention particularly on the closed shop, at any rate for some time—it is necessary for the Government, now that we have gone through this examination of all the various aspects of the closed shop provisions, to give us an answer to the question why they have chosen so flagrantly to disregard the advice of the Donovan Commission. The Donovan Commission examined this matter very carefully, more carefully than I think the Government have examined it. They examined it very judicially, more judicially than I suspect the Government have ever examined it. The Donovan Commission made it very clear that they did not recommend the imposition of enormous difficulties such as the Government envisage, and such as the noble Lord, Lord Drumalbyn, has envisaged, before a closed shop can be brought into being. If my memory serves me aright, they mentioned five points which they thought needed attention concerning the relationship between the closed shop and training arrangements. They thought that sometimes there were out-of-date training arrangements. I should have thought that one of the most important factors in industry to-day is training, I think it should play a more substantial part in the code of practice.

Then the Donovan Commission, I believe in paragraph 603, set out four sets of circumstances in which they thought the possibility of injustice could arise for individuals as a result of the operation of a closed shop. The first was where a man has a conscientious objection. That case has been dealt with, perhaps not in a very satisfactory way or in the most satisfactory way but it has been suggested that it could possibly lead to a widening of the conscience provision to cover many cases not normally thought of as coming within that term.

Secondly, the Commission thought that there could be a danger of individuals being unreasonably excluded from a trade union which operated a closed shop, and thus be disadvantaged. They went on to say that in their judgment if there were, as exists in the vast majority of cases, a proper appeal procedure within the union, this difficulty would largely disappear, but in cases which arose despite that fact the matter could be dealt with, if my memory serves me aright, by the review body mentioned in discussion on an earlier clause which was to operate in conjunction with the Registrar and which of course has no place whatever in the Government's plan. But at any rate I think it is reasonable to say that in one way or another this problem will be dealt with.

Thirdly, they thought there were possibilities, that there might arise cases of a union engaged in malpractice in a way which would prejudice the position of individuals. They were I think looking at very exceptional circumstances here, and certainly there is nothing in whatsoever in that proviso in the Donovan Report which justifies the elaborate paraphernalia which the Government are envisaging before a closed shop can be brought into being.

Fourthly, they thought then; was the possibility that an individual, a non-unionist, already employed in a concern. might be in danger of unfair treatment if a closed shop were introduced, and he was unwilling to join, having already had some years of service.

These were the four sets of circumstances which the Donovan Commission believed needed to be examined and dealt with. I hope the noble Lord will not misunderstand me. I am not for one moment suggesting that those four sets of circumstances cannot be described as being dealt with in the Bill. What I am saying is that the Government are going infinitely beyond what the Donovan Commission regarded as necessary to safeguard the position of individuals in relation to the closed shop. It really is not good enough for the Government to ride away again on one of their easy generalities, in the way in which they are placing obstacle after obstacle in the way of the achievement of a closed shop, even where employers and trade unionists want it. They really are going far beyond anything that the Donovan Commission regarded as necessary in dealing with the limitations of the closed shop and the criticisms which could legitimately be made of it.

The noble Lord ought to gave us a more convincing explanation, since we are now at the end of the Part of the Bill dealing particularly with this matter. about why the Government have chosen to disregard the implications of the Donovan Report, and have gone far far beyond steps which the Donovan Report recommended as necessary.

4.2 p.m.

LORD IDRUNIALBYN

I think it would be a mistake to go all over the arguments that we have gone over before. The Committee will be well aware that we have regarded the agency shop as the means by which the freedom of the individual and the needs of collective bargaining can be reconciled. We attach great importance to both of them. We have regarded the closed shop, particularly the pre-entry closed shop, as something which is in itself undesirable. We have in another place introduced provisions whereby a post-entry closed shop can be introduced in circumstances where this is approved after examination by the Commission for Industrial Relations. We have attached great importance to the need for agreement between the employer and the trade union in such an application for an approved closed shop.

The noble Lord expressed doubts about the delays which could ensue, but the circumstances here are quite different from those in the previous case in which he inquired about delays. There we were concerned with the agency shop, where the union itself could make an application, or for that matter the employer could make an application, for an agency shop to be introduced, subject to the approval of the workers themselves. As the Committee will now of course know, the agency shop can be agreed upon by the employer and the union together. But here we are dealing with something quite different, and that is where there is to be a closed shop, and here we think it is highly desirable that there should be this agreement as a precondition between the employer and the union. I did make some references earlier to the difficulty of seeing into the minds of people, and of the employer in particular, and in what circumstances he might agree, and what inducement would amount to. But I tried to make it clear that there should be real agreement between the employer and the unions on the necessity and the desirability of the closed shop. This is very likely to be the case, and we would not expect in these circumstances that unfair pressure should be exercised upon the employer to do something that he does not wish to do, or does not think it right to do.

If the employer thinks it necessary—and this is the operative word in the case of a closed shop—for the well-being of the industry as a whole, or of his own particular industry, as the case may be, then of course an application can be made by agreement. The noble Lord says it may take a long time to get all employers to come into line. This would be to look into the ways in which employers' associations reach agreement, but I would not have thought that employers' associations would necessarily have waited until all agreed on a particular action before they decided that they were in favour of a closed shop, and were prepared to join with an application for it. But if the employer really believes that a closed shop is not in the interests of the industry, or of his own industry as the case may be, then we think it would be wrong to let such an application go forward. I recognize—

LORD DELACOURT-SMITH

I think the noble Lord is about to go on to another point, but before he does so, can he give us an assurance that the circumstance will not arise in which, in an employers' association, one or two recalcitrant employers, constituting a minority, and perhaps employing a minority of the workers concerned, will be able to hold up action which is desired by the generality of the employers?

LORD DRUMALBYN

I could not give such an assurance, because I do not know how the affairs of individual employers' associations work. Of course I could not give such an assurance. But I think the noble Lord will agree with me that there are certain fields in which there is already evidence. and quite strong evidence, that both employers and unions are likely to make applications for an approved closed shop agreement. The difference is simply that the noble Lord, and noble Lords opposite, would like to see far more examples of applications for such closed shop agreements, and we believe that they should be limited to places where they are absolutely necessary, and where there is agreement between the two sides.

The noble Lord made reference to what the Donovan Commission said on this matter, and I think it is perhaps worth while to refer to what they actually did say. In paragraph 594 they said: It must not be supposed, however, that good industrial relations are the invariable accompaniment of the closed shop. On the contrary, the closed shop is widespread in motor manufacturing, shipbuilding. coal-mining and the docks, the four industries in which strikes in breach of agreement have been most common in recent years. They went on, in paragraph 598, to say: In our view the closed shop as it operates at present is not always in the best interests either of workers or of the community as a whole. It is liable from time to time to cause substantial injustice to individuals from which they have no effective means of redress. It also contributes to the maintenance of a system of training which is out of date and inadequate to the country's needs. Perhaps I might mention in passing that the Bill is by no means silent on training—

LORD LEATHERLAND

May I—

LORD DRUMALBYN

May I please deal with this point before I leave it? If the noble Lords will look at Clause 46(7) of the Bill they will see that in applications for sole bargaining agencies the Commission may attach such conditions as they think fit, and-— (a) may require an organisation of workers recommended for recognition as sole bargaining agent for a bargaining unit, or for inclusion in a joint negotiating panel so recommended, to make sufficient trained officials available for purposes of collective bargaining. This is one of the points the Donovan Commission also laid stress upon. Perhaps 1 may finish my quotations from the Donovan Commission Report by quoting from paragraph 602: We have also borne in mind that throughout this Report we advanced a number of proposals to assist trade unions to organise effectively and to reduce the incidence of strikes. The effect of our proposals should be to extend to more industries the conditions which now permit many trade unions to organise and bargain without need for the closed shop, and we believe, therefore, that in many cases unions should in time feel able to dispense with its aid. Many of those proposals are included in the Bill. In other cases we do things in a rather different way, but the Bill makes substantial provision to assist us to organise effectively. I believe that it would do it much quicker than was envisaged by the Donovan Commission, through the agency shop provisions. For example, there is the right to obtain recognition and bargaining rights, and information for bargaining purposes, to form agency shops, and the protection of the trade union member in exercising his right of membership.

LORD DELACOURT-SMITH

Would the noble Lord not agree that his quotations from the Donovan Report have been quite strikingly selective? I trust he is not going to suggest that the: Donovan Commission gives the impression that the closed shop is in general accompanied by bad industrial relations. Nor, hope, will he omit to take note of the fact that I listed in some detail, and I think with complete accuracy, the four points which the Donovan Commission thought ought to be attended to in order to remove the criticism and objections to which they drew attention. Will he further agree that I was quite right in saying that the Government's proposals go far, far, further to make the closed shop difficult to bring into existence than the Donovan Commission recommended?

LORD DRUMALBYN

I agree that the proposals in the Bill go further to make the closed shop difficult to bring about, but what I have said is that the points to which the Donovan Commission attach importance are either net in the Bill in the same way as the Donovan Commission recommended, or are met in a different way. Above all, there is this device of the agency shop agreement which should bring about, over a wide area of industry, the benefits at present enjoyed by the closed shop, without: the striking disadvantage that it has for the individual. That is what we have sought to achieve, and I believe that the Bill will achieve it.

LORD STOW HILL

Before the noble Lord sits down, I want to intervene on precisely this same point. The noble Lord read from the third sentence of paragraph 602 of the Donovan Report. Would it not have been a little more satisfactory also to have read the first two sentences of that paragraph, which read as follows: In our view prohibition of the closed shop must be rejected. It is better to recognise that under proper safeguards a closed shop can serve a useful purpose and to devise alternative means of overcoming the disadvantages which accompany it "?

LORD DERWENT

I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.