§ Mr. James Sillars (South Ayrshire)
I beg to move Amendment No. 800, in page 62, line 13, leave out subsection (2).
The Deputy Chairman
I remind the Committee that with this we are to take the following:
Amendment No. 462, in page 62, line 18, at end insert:(2A) A company shall not be regarded for the purposes of this section as an extraneous party in relation to an industrial dispute if—
Amendment No. 801, in page 62, line 19, leave out subsection (3).
- (a) it is a company associated to a company which is an employer who is a party to the industrial dispute, and
- (b) it has during the continuance of that dispute supplied goods or furnished services in lieu of goods or services which would. but for that dispute, have been supplied or furnished by the company which is a party to that dispute.
Amendment No. 463, in page 62, line 31, at end add:(4) For the purposes of this section two companies shall be taken to be associated one to another if one is a subsidiary of the other, or both are subsidiaries of a third company.
§ 7.30 p.m.
§ Mr. Sillars
In the course of these debates, the Secretary of State has been described as the Sorcerer's Apprentice. I regard the Solicitor-General as the Tory Party's friendly insurance agent. He is very adept with words. He has a beguiling tongue and all the skill and ability required of an insurance agent to sell a death policy as a life policy. The Bill which he is promoting, particularly Clause 87, and I am here concerned with subsections (2) and (3), is the death policy for certain traditional and basic rights which the trade union movement regards as essential for the legitimate conduct of its affairs.
As with all insurance policies, the small print of the document must be read. I have said before that the clear intention of the Tory Party is to maim the trade union movement. [HON. MEMBERS: "Nonsense."] We will see whether it is nonsense. Some parts of the document 1924 are fairly subtle. The right not to join a trade union seems on the surface to be reasonable, as does the establishment of the agency shop. Clause 61(3), which gives parliamentary licence to blackleg, appears to be on the surface to be reasonable. But on Clause 87(2) and (3) the fair and reasonable mask of the Tory Party starts to slip. This is where we get the more brutal application of the principle which the Tories have pursued since June of this year and before, and it is to damage, shackle, and inhibit the British trade union movement.
I do not doubt that in his friendly way over the Dispatch Box the Solicitor-General will say that that is not true and that the Government are being fair and reasonable and that their intention is to strengthen and not weaken the trade union movement. The test of their sincerity lies not in the imposition of policing duties on officials of that movement, but on the one test of whether in a situation of industrial conflict their actions strengthen the workers involved. I am a great believer in the litmus test in politics. Any situation can be dipped to see whether the litmus comes out red or blue, and if the Industrial Relations Bill is given the political litmus test, it is very "blue", and subsections (2) and (3) are the brightest hue of all.
We are bound to approach the Clause, as we approached all the others, with deep and profound suspicion. We believe that we are justified in that suspicion and that our accusations against the Tory Party of wanting to maim trade unions are fully justified and well founded. The Conservatives are primarily responsible for helping to create an environment of hostility against trade unions in British society. Anyone who doubts that should read reports of weekend gatherings of the Tory faithful.
We have witnessed the hysterical outburst by the Chancellor of the Exchequer on the T.U.C's document on inflation which every sensible person in the country thinks was a fair assessment of the problem and gave some indication of how to get out of it. Then there were the recent speeches in the Enfield, West constituency where the Tory candidate spoke of what he termed the arrogance of the trade unions. And we need go no further than the Young Tories conference where they were foaming at the mouth wanting to take away supplementary benefits from 1925 people who were on legitimate strike. Then there was the performance the Tory Party gave on the Consultative Document which gave less credence to the point of view of the T.U.C. than to the views of their friends in the B.M.A. Now we have the guillotine which is a contempt of working people.
We should also remember the conduct of the Conservative Party during the General Election. This is where I come to the interjection from one hon. Gentleman who shouted "Nonsense" at the beginning of my speech. If at the General Election Labour supporters had asked for details of the sort which are now to be found in Clause 87(3) and we had told them that the Tory Party meant to impose agreements on workers who do not want them the reply of the Tory Party would have been "You are far too suspicious. Our motives are pure and clear. We have no intention on those lines." That is what they would have said on 17th June. But they have not said it on this Bill in relation to Clauses 35 to 40. The clear pattern of Conservative strategy comes out clearly in Clauses 87(2) and (3). This is part of the Government's attack on the trade union movement, and is blatantly pro-employer.
The situation which will arise from the Bill is that workers are to be divided whereas employers are to be strengthened. Wedges are to be driven between workers on the shop floor since there are to be differences between registered and unregistered unions which will lead to the inability of one set of workers to help another. Even the rights of registered trade unions are to be impaired. Clause 87(2) and (3) will mean that the sympathetic strike will be ruled out. Indeed I suggest that any question of striking at all will for all practical purposes be ruled out. I shall come to that matter a little later.
Clause 87(3)(a) will strengthen employers and give them protection where they are already united and subsection (3)(c) encourages the unity for industrial political purposes where those employers are not bound under paragraph (a). We seem to be reaching the stage of the growth of a private political industrial fund organised by employers for employers which is to be used by them at their discretion without any restrictions being put on the use of that fund. Are 1926 we to anticipate the situation in America since it would appear that American law is being brought into this country? By bringing in American law and practices this could lead to anti-trade union vigilantes financed by this fund to strike-break; and a new age of Pinkerton will arrive on the British industrial scene.
§ Mr. Gower rose——
§ Mr. Sillars
I will give way to the hon. Gentleman a little later since I shall be mentioning him. The situation could arise in Clause 87(3)(a) in which an associated employer could be instrumental in imposing an agreement under Clauses 35 to 40 and it is to this practice we most object. Men who have been bound by an agreement to which they have never agreed could not strike justifiably because that would be regarded as an unfair practice and they would be forbidden to engage in any sympathetic action against an associated employer.
For a definition of "associated employer" we have to look forward to Clause 148(5) where we discover that the term will mean controlling employers, a situation which puts a different light on the words. The essential power of trade unions and the whole concept of trade union solidarity is being disrupted. The fiction is being introduced in Clause 87 that it will be the workers alone in an industrial dispute situation who would be regarded as being isolated and not part of a highly complex interrelated society and there will be no means for their colleagues to assist them. Then when the workers step into the real world situation and begin to ask their fellow workers for help in a dispute penalties will be imposed on the trade union.
The Tory Party appears to me to want to have it both ways. The Government Front Bench spokesman quote Victor Feather in terms of the idea that one man's strike is another man's lay-off. Perhaps I could interpose the point of view that one man's strike can also be another man's protection. This is one of the reasons we in the unions do not get hysterical about strikes. In voicing their contributions from the Conservative benches, Tory Party spokesmen recognise the interdependence of our whole complex society. They then come to the fictitional part that one man's strike must 1927 not be actively backed by another man. They deny to the worker the reality of having to live in the real world. This is the denial to the worker brought about by subsections (2) and (3) although there is no such denial for the employers. They are to be allowed to live in a world of reality. They will be able to get help, assistance, guidance, and people to join with them in decision-making and association in the dispute in terms of complete impunity.
We see from subsection (3,c) that employers by donating money to a fighting fund, which is what it will be, can play a key rôle in industrial disputes. They can inject cash into a dispute situation, they can buy labour and use it for strike-breaking. If that fund happens to be drained away because they decide to intervene in a dispute which they think is an essential matter of principle, in the long-term interests of employers they can evade Clause 87(3,c) as being directly or indirectly involved by writing an innocuous letter saying that, because of certain industrial disputes, the fund has drained away and they need another cash inflow. But they need not mention the dispute that is involved. We all know that in those terms a nod is as good as a wink. Again, they can get away with it with complete impunity.
The employers by the terms of the Clause are to be given room for manœuvre which is to be denied by the trades union movement. We all know that they can act secretly and discreetly as they always have done at the golf club, or in telephone calls, or in contacts with their interlocking directorships which we all read about, whereas the workers are always forced to be absolutely open about what they require to do. We are required to have mass meetings, but no private telephone calls. The employers will be able openly to taunt workers with the combined strength and the use of the political industrial fighting fund in a unity sanctified by Parliament in Clauses 85 to 87 of the Bill.
One of the ironies of the situation is that the political industrial fighting fund will come out of the pockets of the workers. The workers will be required by their efforts not only to put up the profits which will go in dividends or in 1928 directors' salaries or in investments. The workers will also be required to provide the profits for an employers' fighting fund. We are duty bound to ask the Solicitor-General whether money in that fund will be included in the information which employers will be required to give to the trade unions under some of the less objectionable Clauses of the Bill.
We have objections to almost the whole of the Bill. They are not academic, as some hon. Members opposite have suggested. They are based on the experience of the creation of similar types of fund. I refer to the political funds of Aims of Industry and the Tory Party. One knows that that sort of fund is used to influence decisions. This Bill is almost part of the pay-off for the increased cash flow into the Tory Party coffers before 18th June. It is a pay-off for services rendered.
The Labour Party and the trade union movement put a great deal of credence in the need for solidarity. In our view, a sympathetic strike is an essential weapon for working people. It is one of our weapons in a very limited armoury in the industrial relations situation. We do not use it terribly frequently. We intend to keep it for the basic principal industrial dispute, where something crucial is at stake. We do not use the sympathetic strike in every strike situation; we use it very rarely. But when we employ it we do so because there is something absolutely essential at stake for the whole trade union movement.
Yesterday the hon. Member for Barry (Mr. Gower) said—and I paraphrase his words—that if anyone could show him that the Tory Party would take away the worker's right to strike he would join us in the Lobby. He will have to join us in the Lobby in our fight against Clause 87 because subsection (1)(b), for all practical purposes, takes away the worker's right to strike. The Solicitor-General may deny that, but I do not think he can because the wording of subsection (1)(b)—and that is the crucial provision—is such that the worker's right to strike is taken away. The Government were bound to notice this. If they noticed it, we must ask why no Government Amendment to the Clause has been tabled to clarify the situation if they did not want to take away the worker's right to strike. 1929 Subsection (1) provides that any person—not a registered or unregistered trade union—who interfereswith the performance by another person of a contractto which that other person is a party shall be indulging in an unfair industrial practice if the other person is an extraneous party. It does not refer to any person stopping the performance of work upon a contract. It merely refers to a person interfering with the performance of a person who is extraneous to the industrial dispute. This would appear to be a blanket provision against the worker's right to strike, whether he be in a registered or unregistered trade union.
§ Mr. Sillars
There are different ways of skinning the industrial worker. If he engages in an unfair industrial practice there are other ways of getting him back to work without obviously ordering him to do so. The hon. Gentleman's excuse will not do and he will have to join us in the Lobby because all strikes interfere with someone's ability to perform a contract. What about the postmen? What about the railwaymen, if they decide to strike? Their strikes are bound to interfere with the performance of an extraneous party. A railwayman going on strike in Cumnock, in Ayrshire, could well interfere with the performance of a person extraneous to the industrial dispute. In Wolverhampton—well, we all know about people in some parts of Wolverhampton.
The Solicitor-General, if he agrees with my interpretation of the Clause, is bound to give us an assurance that he will undertake to amend it on Report.
I said that the solidarity of the Labour movement in a sympathetic strike situation is absolutely vital. The Labour Party rejects the philosophy not only of this Clause but of the Bill and I ask my hon. Friends to vote against it, although we shall get an opportunity to repeal it later.
§ Mr. Nicholas Scott (Paddington, South)
I congratulate the hon. Member for South Ayrshire (Mr. Sellars) on managing to stay in order while making remarks so irrelevant to the Clause.
§ Mr. Scott
None was intended. I was simply congratulating the hon. Gentleman on his skill to indulge in what appeared at times close to a general tirade against the Bill and yet speak to the Amendment.
The hon. Gentleman said that sympathetic strikes were rarely employed by the trade union movement. That may well be so. All that the Clause seeks to do is to ensure that it is not only rarely but fairly employed as a tactic, and I believe that Parliament has the right to lay down the circumstances which it regards as fair.
The hon. Gentleman also attempted to show that subsection (2)(b) affects the right of workpeople to strike and withdraws the provisions of Clause 114. But subsection (1)(b) refers not to people taking part in a strike but only to the steps set out in Clause 86(2)(a); that is,calling, organising, procuring or financing a strike",not taking part in a strike. Only those actions can conceivably come within Clause 87(1)(b).
But the effect of the Amendments would be, first to allow the calling of strikes and other industrial actions in support of primary strikes which are unfair. Surely that is a nonsense. I can understand hon. Members opposite disputing whether any industrial action should be unfair, but, having once said that certain industrial action is unfair, to say that there could be sympathetic strikes in support of it is a manifest nonsense.
Secondly, the Amendments would (allow industrial actions to be called against persons or firms not involved in the dispute. We can argue about precisely what "involved in a dispute" means and where one draws the line at the relationship between "actively involved" and "not actively involved". But the country widely recognises that so-called sympathetic strikes against firms which are totally uninvolved in the 1931 primary dispute are unfair, and Parliament should make it clear that they are unfair.
The hon. Member for Lewisham, North (Mr. Moyle), speaking in a previous debate, complained that those involved in industrial relations would be inhibited because they would feel that they had to have regard not only to industrial relations factors but to the background of the law. All I can say is that it may be a factor to bear in mind, but all of us in our lives, certainly those engaged in commerce, have always to bear in mind the background of the law. If society decides it is right that the law should make a dividing line between what is fair and what is unfair, of course that is right. Parliament will decide in this instance, and surely it is not too great a burden to ask those engaged in industrial relations to bear this provision in mind, as they do others.
I see no merit at all in these amendments, and I hope that they will be rejected by the Committee.
§ 8.0 p.m.
§ Mr. Bruce Douglas-Mann (Kensington, North)
I do not wish to make a speech which might be more appropriate to the Question, That the Clause stand part of the Bill, but in view of the points made by my hon. Friend the Member for South Ayrshire (Mr. Sillars) and by the hon. Member for Paddington, South (Mr. Scott), I think it should be made clear just to what extent this Clause as it stands will interfere with the fundamental right to strike. I do not think hon. Members opposite have fully understood this. At least I hope they have not, for I am prepared to credit them with the belief that they are preserving some of the vestiges of the right to strike.
The Clause as it stands, in my view—and I am speaking with some experience as a lawyer engaged in industrial matters —would destroy the right to strike in almost all circumstances, notwithstanding that all the requisite notices have been given, and despite lengthy negotiations beforehand and regardless of the fact that the union is a registered union. The right of workers, and their unions, to withdraw their labour is effectively abolished by this Clause.
The Solicitor-General in the debate on the last Clause said that it would be neces- 1932 sary in cases covered by the last Clause for the employer or person aggrieved, taking a claim for damages before the Industrial Court, to establish that the trade union knew of the specific contract which was involved. With respect to the Solicitor-General, this is completely contrary to the judgment of the House of Lords in the case of Stratford v. Lindley (1964 —3 All E.R. 102). In that case it was held by Lord Reid (p. 106), after reciting the facts:The respondents knew that barges were always returned promptly on the completion of the job for which they had been hired, and it must have been obvious to them that this was done under contracts between the appellants and the barge hirers. It was argued that there was no evidence that they were sufficiently aware of the terms of these contracts to know that their interference would involve breaches of these contracts; but I think that at this stage it is reasonable to infer that they did know that.I submit that, as the law is laid down by the House of Lords in that case, it is not necessary to establish that the union responsible for breaking the contract actually knew of it, if it is reasonable to infer that the union knew of the contract. If that is the case, then every strike is going to involve an unfair industrial practice, because every strike, as my hon. Friend the Member for South Ayrshire pointed out, results in other parties who are completely extraneous to the dispute breaking their contracts. I think that probably every business in the country has had to break some contract or another by reason of the postal dispute.
It is hypocritical for hon. Members opposite to say that the right to strike is being preserved, while at the same time they are declaring that every strike is unfair which involves any extraneous parties breaking their contracts, which the union ought reasonably to be capable of info ring existed. If that is so, then the right to strike is effectively abolished by this Clause. Every time there is a strike on a transport undertaking it involves breaches of contract between extraneous parties of contracts of which the union might well be held to have imputed knowledge, as in the decision in Stratford v. Lindley. Every time there is a strike on a building site between the employees of one contractor and his employers that strike will necessarily involve breaches of contract between other contractors on the site and the principal contractor and sub-contractors. Every time 1933 there is a strike in any firm in industry which is supplying components to another factory which in turn has contracts to deliver goods reprocessed to yet another concern, there will be a breach of contract. It must be obvious that it is likely to be established successfully before the Industrial Court that the union, particularly when a national union is concerned, knew that goods from factory A go to factory B and from there reprocessed to factory C, and that a strike at factory A affects factory B and factory C, and will involve a breach of contract between B and C.
If this Clause is not substantially amended the right to strike is completely and effectively abolished. I sincerely hope that we shall hear from the Solicitor-General an assurance that this Clause will be fundamentally amended, before we get to Report.
§ The Solicitor-General
I do not wish to intervene to curtail the debate but in order. I hope to clear the ground on which the discussion is taking place.
The intention of this Clause is to replace and clarify the present rather imprecise area in which the courts are developing the right to restrain certain kinds of strike which can be described as secondary boycotts. At the moment such strikes are actionable in the ordinary courts in some cases. The hon. Member for Kensington, North (Mr. Douglas-Mann) mentioned one example, Stratford v. Lindley. Johnson Matthey is a more recent case. The Torquay hotel case is another case. There is a growing number.
§ The Solicitor-General
That may be so. The hon. Member may have started it. I do not want to deny him his credit. That is something of which I was not necessarily aware.
This Clause is not intended to deny the right to strike or of secondary boycott but to redefine it. It has to be read alongside the provisions of Clause 118 which remove litigation about the inducement of breaches of contract from the ordinary courts.
So we are here concerned with the extent to which it should be an unfair 1934 industrial practice for certain kinds of secondary strikes to be called—secondary boycotts; by which I mean a strike designed and intended to procure breach by an innocent extraneous third party to a commercial contract. The intention here is that this should be done not by reference any longer to the maze of case law to which the Donovan Report referred, but only when it can be shown that somebody has intentionally set about securing or organising industrial action in order to induce a breach by another to produce the non-performance of a commercial contract.
Beyond that, the right is only to be available, as my hon. Friend the Member for Paddington, South (Mr. Scott) pointed out, when it can be said that the party who is being induced to break or not to perform a contract is extraneous, innocent, outside, not supporting the primary dispute.
The Committee will no doubt, want to discuss the merits or the demerits of that concept in whole or in part, whether we have tried to draw correctly this definition of the areas within which getting innocent parties to break their contracts should be fair or unfair—whether that has been properly drawn. That is a matter which the Committee will want to debate.
But there is one matter which both hon. Members opposite have already mentioned, the hon. Member for South Ayrshire (Mr. Sillars) and the hon. Member for Kensington, North when they said that the wording, as it stands, of subsection (1)(b)—and I take the point made by the hon. Member for Kensington, North—about interfering with the performance by another person of a contract, goes, or may go, too widely. That is certainly a point which has some force in it, and I undertake here and now that those words will be looked at.
It is not our intention to do anything along the lines which the hon. Member for Kensington, North suggested, namely, to produce a situation in which the calling of strike action which results inevitably, accidentally and consequentially in the breaking of commercial contracts by the employer against whom the strike is called is proscribed, struck at or impedes by the Clause. 1935 The intention is that the calling, procuring or organising of industrial action should be unfair within the concept of Clause 87(1) if the purpose or principal purpose of the person calling, procuring or organising that action is to induce another person to break—the existing words of Clause 87(1)(a)—or not to perform a contract to which that other person is a party. But there has to be a deliberate intention of the person who is possibly being proscribed by the Clause to produce the breach or non-performance of the contract; in other words the situation that arose in the Torquay hotel case where the intention of the party striking or the strike-calling party was to procure a breach of the oil delivery contracts or, at the very least, non-delivery of the oil under the contracts. The important thing is that it should be the intended result of the secondary unfair strike that someone innocent of the primary dispute should be obliged to break or not perform his contract.
That is clearly not the result of the wording as it now is, but I hope the Committee will accept from me that we do not want to waste our time in talking about a wrong form, we want to talk about the objective of the Clause.
§ The Solicitor-General
The hon. Member says that we shall have to change the words, and I accept that. Because the matter ranges more widely than this, the question is how far we should seek to describe a party as extraneous. It is plainly right that we should debate the scope of Clause 87 (2) and (3) before we come back to the Committee with an Amendment embodying what I have tried to tell the Committee.
§ Mr. Douglas-Mann
I am obliged for the assurance which the Solicitor-General has given. I hope that the Amendment will make it clear that it is necessary to establish the intent to break a specific contract, and that it will not leave the situation as it was left with Stratford v. Lindley, which I hope he will agree is also unsatisfactory.
§ The Solicitor-General
I take the hon. Gentleman's point. I am not sure that 1936 I go as far as he does in saying that Stratford v. Lindley or the other cases were wrong. The courts have said that it is not necessary for the person calling the strike to know the precise form and terms of a given contract if he plainly knows or must know of the existence of a contract of that kind. We do not want someone to be in jeopardy under the Clause if something which he knows not of or suspects not of is accidentally, consequentially broken. I undertake to look at the formulation of the knowledge point in the Stratford v. Lindley, the Torquay hotel and other cases to make certain that this is clearly met.
§ 8.15 p.m.
§ The Solicitor-General
That is the point which I was seeking to keep open, where the almost inevitable result is breach of contract where the strike-calling party must know or be taken 110 know. I shall of course have regard to the words drawn to my attention by the hon. Members for Barry (Mr. Gower) and Kensington, North. I am not seeking to mislead the Committee by saying that the undertaking I gave alters the substance of the intention of the Clause as hon. Members opposite are entitled to criticise it. I am merely trying to make clear, for the assistance of the Committee, the ground we are debating, which is the proposition that certain people wholly innocent of a primary industrial dispute are entitled not to be persuaded by industrial action to break contracts when they have done nothing whatsoever to intervene in or to support the party to the primary dispute. It is that which the Committee will want to debate, and I hope the Committee will forgive me for having intervened to deal with this narrow point.
§ Several Hon. Members rose——
Order. I am not clear whether the Solicitor-General has given way and, if he has, to whom he has given way.
§ The Solicitor-General
I am not seeking to curtail discussion. I will first give 1937 way to the hon. and learned Member for Montgomery (Mr. Hooson).
§ Mr. Emlyn Hooson (Montgomery)
I want to understand the Solicitor-General's point about the question raised by the hon. Member for Kensington, North. Is it the intention of the Government that if anybody is to be guilty under the Clause he must be shown to have a precise intention, and that it will not be left to such words as "in contemplation or furtherance" but will be a precise mens rea that is required?
§ The Solicitor-General
The reason for including the words "in contemplation or furtherance" is to confine the jurisdiction of the Industrial Court to an industrial disputes matter, but the point which the hon. and learned Member for Montgomery put is an important one distinct from that. Hon. Members have already put several different shades and nuances on this. The precise intention, with precise knowledge to secure the breach of a given contract, is putting it at its highest, and the hon. and learned Member will know several cases in which it is plain that the person inducing the strike, so it has been held, knew or must have known of the existence of a particular contract although he may not have seen the document in writing. I do not think that one can be required to go as far as that, but all the points made, including the one made by the hon. and learned Member, will be borne in mind.
§ Sir Harmar Nicholls (Peterborough)
I have much sympathy with the Solicitor-General's point about an innocent party being pushed to break a contract. Does he recognise the difference between using a strike to prevent a party entering into a contract and using a strike to break a contract? I will perhaps expand this if I say a word on my Amendment which comes in this group. There is a difference between preventing the carrying out of a contract and preventing a contract being entered into.
§ The Solicitor-General
That is a valid point, but the Clause as drawn does not seek to proscribe a strike which is designed to prevent a contract being entered into. It is designed to prevent a strike which is intended to secure the breach or non-performance of a subsisting contract. I do not think that any case law goes so 1938 far as to make unfair the prevention of someone from entering into a contract, and it is not the Government's intention to go that far. It would be a completely new principle in this field of law, as in any other, to say that people should be unable to take action to prevent the creation of new contractual relationships, so the point of the hon. Member is already borne in mind in the Clause.
I give way to the hon. Member for Kingston - upon - Hull, North (Mr. McNamara).
On a point of order, Miss Harvie Anderson. Was the Solicitor-General giving way on a point of information or was he concluding his speech?
§ The Solicitor-General
I was trying to deal with such points as have been put to me. It seems that the hon. Member whom I identified as a questioner has identified himself as a would-be speaker.
§ Mr. Arthur Lewis
On a point of order. Could I, with respect, ask you, Miss Harvie Anderson, to suggest to the Solicitor-General that he would be well advised to follow the usual custom when he is giving way, namely, to say that he is doing so and to whom he is giving way? That would help the Committee and the Chair.
The Deputy Chairman
I am sure that it was not the intention of the Solicitor-General to confuse the Committee, but I think that hon. Members would agree that in the event Mr. Hugh Jenkins has the floor.
§ Mr. Hugh Jenkins
I am grateful to you, Miss Harvie Anderson, for giving me the opportunity of putting a question to the Solicitor-General which I feel must be prefaced by some explanation. I felt it improper to intervene with my question because the introduction that would be necessary before coming to the question would be so long that you would have said that it was not an intervention. 1939 The Solicitor-General has said that he is dissatisfied with the Clause. I want to tell him that his dissatisfaction is only one-hundredth or possibly one-thousandth of the dissatisfaction felt with the Clause on this side of the Committee. I believe that my hon. Friends will feel that only the acceptance of the Amendment which seeks to dispose of this section entirely will be a satisfactory outcome and that no modification of the subsection will meet the case.
On the other hand it is a welcome sign that the Solicitor-General should have seen that what he is proposing could have serious consequences, going beyond even the Government's intentions. There are certain other circumstances not covered. The hon. and learned Gentleman has said that he proposes to modify the Clause so that people who are coincidentally affected are not brought within its range. What of the circumstances in which people, through trade union solidarity, are brought quite intentionally into a position of industrial dispute?
Hon. Gentlemen opposite underestimate the effects of taking one action upon such areas. They have seen already, and it was a surprise to many of them, that as the result of a previous Clause they have restricted the freedom of the Press. Similarly, as a result of this Clause—and I want to know whether the Amendment will cover it—traditional trade union solidarity will be seriously undermined.
I will give an example of what is a fairly frequent occurrence. Two or three times a year a situation arises in the film studios when technicians and actors are unpaid. The reason is the chaotic financing of the film industry, which has always been done on the basis that films are seldom made by the parent company. Generally speaking, even very major films are made by small companies created for the purpose with small capital, sometimes only £100.
The consequence of that is that in the event of a default in payment at the end of the film—unfortunately, this happens occasionally—the situation arises that the film is complete but payment is not made. In these circumstances it is not unusual for the Association of Cinematographic Technicians to give an 1940 instruction to workers in a film laboratory not to continue with the processing of this film until after the other people have been paid. Consider the situation that arises here. Here we do not even have the same employer because the film is made by one employer and by this time is the property, probably, of the distributor.
Hon. Members opposite have not given due weight to the effect of trade union solidarity. The example I have given can no doubt be matched elsewhere in industry. I am sure that my hon. Friends will have other examples of situations in which workers, on a sheer fraternal basis, possibly having in mind some long-term advantages—or the avoidance of disadvantages—will take this kind of action. In this case these people take such action because it is the only action which can be taken in the circumstances to ensure that those who made the film are paid. Often payment is not made by the company which owes the money, but by the distributor who has purchased the film. This is because he has a product and he wants to sell it. If he does not pay there is the possibility that his film will never get on the market. What is the situation here?
Here is a trade union giving official instructions to a group of members not directly involved in the original dispute. In some instances the instructions will be given not even on behalf of the members of the same union but on behalf of members in other unions. A decision of this sort has been taken in the Federation of Film Unions and all the parties are a party to the decision. Who is responsible? Who can be proceeded against under the Bill, and what is the consequence of that action?
I would like the Solicitor-General, when he returns to the defence, to tell us in these circumstances who is caught by the Bill. Is it the workers as trade unionists or the trade union officials, and if it is, then of which union? Will he also say whether, once the changes to the Bill have been made, this action will be impossible to operate? If this is the case, then certainly in this industry he will create more trouble than he imagines because it will then be necessary for the trade unions to take alternative action which will have repercussions far more severe, not only for the unions but for the employers. 1941 8.30 p.m.
Right hon. and hon. Gentlemen opposite may have wondered why the Federation of Film Producers decided to express its doubts and fears about the Bill. The reason is not that its members are not perhaps contributors to Conservative Party funds and that they do not approve of the Government's action in principle. The reason is that members of the federation are like very many other employers; and this is where disillusionment is beginning to set in among right hon. and hon. Gentlemen opposite. Even they are beginning to doubt the validity of the Bill.
The general proposition has been put out to the Press by the Conservative Party that something should be done about the trade unions, and it has gained general assent. Hon. Members have made these broad statements in their election addresses, and they have gained general consent. However, when they come to spell out these matters in detail in Clauses like this one, they begin to see that, not only for employees but for employers, something is being eroded which is precious to the trade unions, to employers and to the country as a whole.
I hope that the Solicitor-General will say that no Amendment or alteration is necessary because he thinks that the whole Clause should be deleted.
§ Mr. Daniel Awdry (Chippenham)
At the beginning of his speech, the hon. Member for Putney (Mr. Hugh Jenkins) said that the whole of Clause 87 should be deleted. However, I think that it is one of the most fundamental Clauses in the Bill, in which very important issues are at stake.
The present position on strikes is set out clearly in paragraph 888 of the Donovan Report. That says:At the present time, however, it is a familiar aspect of trade disputes that trade unions not only call out their members on strike but also endeavour to exert additional economic pressure on the employer in dispute by sealing off his sources of supply of materials or his outlet for sales, or both: and unless unlawful means are used to secure these ends, such action is permissible.Surely we are now debating whether such action ought to be permissible.
I hope that I can be considered a reasonable man who can see both sides of a case. Earlier in this Committee I sup- 1942 ported the Opposition on one Amendment. But, however hard I try, I cannot see any justification for sympathy strikes. If employees have a dispute with their management, clearly they are entitled to withdraw their labour. That is a formidable weapon, though it has been written down by hon. Gentlemen opposite who suggest that we are eroding the weapon. It is a weapon which can force employers into bankruptcy. Why should trade unions have an additional right to persuade the suppliers of materials to a factory to stop delivering their goods?
§ Mr. Douglas-Mann
The hon. Gentleman has just read paragraph 888 of the Donovan Report. Perhaps he will refer to paragraph 900, which is the Commission's conclusion on the very passages to which he has referred. The last sentence reads, having regard to all that has gone before:… we think that the second limb of section 3 should be retained as part of our Statute law.
§ Mr. Awdry
Those of use who have attended these debates realise that some hon. Members adopt some parts of Donovan—[Interruption.] That is a perfectly fair point. Neither side is using Donovan as its bible. I was trying to establish the facts, and I draw a different conclusion from Donovan.
Suppliers of materials to a factory who have no quarrel with the factory are persuaded, often with a good deal of threatening, to take action against the management of the factory. I believe that that is an abuse of power. It is an unpleasant weapon and it savours of bullying. It offends against the fundmental principles of justice, and it is a feaure of industrial action today which offends the general public more than any other.
The hon. Member for South Ayrshire (Mr. Sillars) made no attempt to justify the sympathy strike on its merits. I have always understood that right hon. and hon. Gentlemen opposite are anxious to promote the principles of justice. These principles, surely, involve the protection of the rights of the individuals and of companies and businesses.
§ Mr. David Stoddart (Swindon)
Perhaps the hon. Gentleman will listen to the following proposition. As I see it, under 1943 the Bill the Government are giving freedom to non-unionists on the same basis as it is given to unionists. In other words, they are given the right not to belong to a trade union, just as trade unionists have the right to belong to a union. In the circumstances, the Government are moving towards the position where blacklegs can go into a factory during an industrial dispute. In those circumstances, Clause 87 becomes very important to trade unionists. The only protection which trade unionists on strike will have against their own blacklegs is to try to prevent supplies going into the factory where the blacklegs are operating against probably the majority of the employees.
§ Mr. Awdry
I hope that the hon. Gentleman will have an opportunity of developing this point.
It is wrong and contrary to the principles of justice that employees having a dispute with a particular firm should be allowed to try to persuade and threaten other people who have no dispute with that firm not to deliver supplies. It seems to be an evil.
I am surprised that hon. Gentlemen opposite do not support me on this point, because they are keen to look after the rights of individuals. Yet these people and their businesses are threatened by outside forces.
§ Mr. McNamara rose——
§ Mr. McNamara
The hon. Gentleman is making a very important point about the protection of the individual. May I change that round and consider the position of the person engaged in an industrial dispute who is in fact on strike and a third party enters into a relationship with the employer to supply goods or produce so that he can fulfil his contract. The other person then says to his mates who work in that other firm, "Withdraw your labour. If you do not, your employer will be interfering with my right to strike." At that moment he cannot fail to be interfering with the other employer, nor can he under the Bill.
1944 There is no equal balance between the two.
§ Mr. Awdry
This is becoming an interesting philosophical discussion. My view is that the employee is entitled to withdraw his labour from the employer, but not to go beyond this and to bring pressure on other people supplying goods to break their contracts. I do not think that it would be helpful to take this philosophical discussion any further. The alternative to the Bill is a kind of jungle warfare in which the combatants in any dispute are no longer just the parties to it but anyone whom the unions can persuade to join in.
This may conform to the idea of solidarity, and we have heard a lot about solidarity. It may conform to the motto, "Let the workers unite." However, it does not lead to justice. In deciding how to frame the Clause we should be thinking of justice more than anything else. Therefore, I believe that the Clause is right.
§ Mrs. Castle
The hon. Gentleman talks about the innocent outside employer. May I ask him to address himself to the Amendment, which is designed to deal with the Government's definition of an innocent outside employer. Included in that definition is an associated employer with close financial connections and even an employer contributing to an indemnity fund. Where is the hon. Gentleman's innocent employer in all that?
§ Mr. Awdry
The right hon. Lady may have a good point on detail. The hon. Member for South Ayrshire and other hon. Members who have spoken have gone much further than taking Committee points. They have talked about solidarity. They have raised the entire concept of sympathetic strikes. However, the right hon. Lady may have a point. If the Clause is not correctly drafted, my hon. and learned Friend will certainly look at it, because he said that he would. We are dealing with the main principle of sympathetic strikes. Hon. Members opposite have said that they would like to throw out the whole Clause, and it is that issue on which I have been speaking.
§ Mr. John Golding (Newcastle-under-Lyme)
I should like to start on the 1945 narrow point before broadening out to the issue of solidarity.
Clause 87(2) makes it quite clear that it is an unfair industrial practice for any person, in furthering an industrial dispute, to interfere with the performance by another person of a contract to which that other person is an "extraneous party." What do we mean by "extraneous party"? We find thata person shall be regarded as an extraneous party … if he is not a party to that dispute, and he has not … taken any action in material support of a party to it.What is "material support"? We find that if he is an associated employer it gains him exemption. We then have to ask: what is an associated employer? We have to turn many pages of the Bill to find that definition, but we eventually find thatFor the purposes of this Act any two employers are to be treated as associated if one is a company of which the other (directly or indirectly) has control, or if both are companies of which a third person (directly or indirectly) has control; and in this Act 'associated employer' shall be construed accordingly.That is marvellous! There can be a strike in one firm, and under the provisions of the Bill it is not possible to bring pressure on the other firm because it is associated. Yet the two firms can be under common control and can have a common financial interest.
We can see the break-up of firms into associated companies, which would mean that the range of industrial action would become very narrow. That does not conjure up the image of an innocent party. One individual can own several companies. He may have a direct financial interest in every one of them. In one of those companies a dispute may break out. He decides to stand firm. He can afford to do so, because he may be supported by the receipts from 19 other plants. He will have those receipts and will be able to carry on the fight against the workers in one isolated factory. I shall refer to loyalty in a moment. That is the nub of the question of bringing about parity in bargaining situations.
Even under present regulations a worker who goes on strike will have to subsist on about £9 a week for himself, his wife and, perhaps, two kids. In that situation he is being asked to fight an employer who may be able to take advan- 1946 tage of the returns from 19 factories. That is not equality of bargaining. It is precisely because of the existence of inequality of this sort that 19th century employers decided that trade unions should be granted some immunity before the law.
The issue before us is clear. This is an attempt completely to change the balance of power between the trade union and the employer. [Interruption.] It will not be brought to parity. How can we talk of parity when postmen are on the streets in receipt of £9 a week to support them in their struggle, while the Deputy Chairman of the Post Office continues to live in comfort and continues to say, "No"? Is that parity? Does parity exist in a situation when postmen receive £9 a week while the State puts up however many millions of pounds it likes in the fight against them? If it is, it is a strange parity. I know which side I would rather be on in a dispute of that sort.
§ 8.45 p.m.
§ Mr. Golding Under the Labour Government many of us disputed the contention that the balance of power had shifted. This we know from our common experience. In view of these Clauses and the definition, it is clear that hon. Members opposite must ponder carefully before deciding not to support the Amendment.
§ The principle of loyalty has been mentioned. The traditional difference between the trade unions and the employers has been that whereas employers have had employers' associations we have had a trade union movement in which the doctrine of obligation has gained considerable ground. This is because we do not believe that in the industrial situation today there can be innocent third parties, because every wage claim and settlement has an implication for other settlements. Day by day and week by week the Government Front Bench tell us that each settlement has an implication for others.
§ It is very difficult to define who is and who is not a party to a dispute. The Clause would remove from trade unionists the freedom c: the worker to withdraw his labour if he does not like the use to which his products are being put. In the 1947 trade union movement our relationship to work is not just that of a contract of doing work for a certain sum of money. We have to be concerned with the use of the products.
§ It is reasonable for men who object to the use to which the employers put their product to say to the employer, "We are stopping work." This is true in the present Post Office dispute. The failure to distribute oil to a Torquay hotel has been mentioned. There are telephone exchanges which will face serious difficulties in the near future because oil is not being supplied to them. I would defend the right of the Transport and General Workers' Union members who are refusing to deliver that oil, because they are constantly told that the outcome of the postmen's dispute will have an effect on the wages of all workers.
§ We are constantly being preached at that wage settlements are not arrived at in isolation. How can the Government preach that at one minute and talk about settlements being taken in isolation at another?
§ On the Post Office dispute in another respect, it is possible for trade unions to have a vital interest in the outcome of negotiations without their being parties to a particular dispute. The U.P.W. is in dispute with the Government over the pay of postmen, telephonists and counter clerks. The union I represent—the Post Office Engineering Union—is not a party to the contract, and it is not for us to say whether the percentage arrived at in negotiation is right or wrong, but we are concerned about the principles being settled during the dispute. The Post Office says that what matters is not the percentage but the principles of pay.
§ The Post Office thus widens the interest in the dispute away from the U.P.W. to all the unions concerned in the Post Office, because they have a direct interest in the principles of pay established. Our interests are vitally bound up in the outcome of the dispute.
§ The Government are repeating the Post Office assertion that the union will not go to arbitration. Other unions would be upset if the principles of pay for the entire Post Office staff were settled by arbitration. Moreover, it is not correct to make the broad claim that the U.P.W. 1948 agreed to go to arbitration. All the Post Office unions agreed to go into the public Corporation on certain understandings set out in a White Paper, including an assurance that the Government would expect of the employer that industrial relations would be even better in the public Corporation than they had been in the old Post Office. We went in on that undertaking. The unions signed an agreement. There has been argument about whether it is ambiguous.
§ No union has been to arbitration about the principles of settling pay. Those principles have been established, and the arbitration court has been asked only to decide what percentage awards were just and desirable within the context of agreed principles of settling pay.
§ Mr. Golding
No, because, first, in the past there were agreed principles for settling pay which had been determined by the Tomlin and Priestley Commissions after years of study and work. There was no need to go to a mediator; neither side had said unilaterally that it was changing the principles of settling pay. Second, an arbitration court had been established.
To return to the main theme, it is difficult to determine who is a party to an agreement. It would be much fairer, in my view, if two additional points were made: first, that no employer be given exemption if he has either financial or physical control; and, second, that trade unions which have a direct interest in the outcome of negotiations should themselves be entitled to take action.
The Government's policy is to relate one wage claim to the next—X minus 1, X minus 2, and X minus 3. Given that policy, each union in the public sector must have an interest in the settlement of any dispute. If the Government intend to create a situation in which a certain formula is to be applied, and if there is to be parity of bargaining between workers and employers, the workers must be free to act in any dispute which they think will vitally affect their interests.
§ Mr. Golding
Hon. Members opposite are leading me into difficulty, Miss Harvie Anderson, tempting me into philosophical arguments which you would rule out of order. There is no logic in what the hon. Gentleman says. If 100 per cent. of workers were in the public sector, that would be right, but, of course, it is not so. The Post Office Engineering Union has not the same interest in the Ford dispute. We know that, whatever the productivity at Ford Motor Company, however bad the cars which it produces—it has just sold me a bad one—the workers will get their increases because they are in the private sector and because they are in a more powerful position—
The Deputy Chairman
Order. It is difficult for the Chair to restrict this debate, as all hon. Members who have read the Amendments will recognise, but I hope that, having been allowed the latitude which is necessary for our present purpose, hon. Members will not take overmuch advantage. We have been straying very far in the last few minutes. I appreciate that the hon. Member who has the Floor thinks that he was led astray by an intervention, but, though he is not yet strictly out of order, he is very near it. I hope that he will come back more closely to the Amendments.
§ Mr. Golding
I accept your rebuke at once, Miss Harvie Anderson. I saw the danger when the hon. Gentleman rose to intervene. It is difficult to remain within order on these matters.
Our objection to the Clause as it stands is of vital importance, vital to the essence of the Bill. I do not believe that the Bill is directed so much to the removal of strikes, or unofficial strikes, as to the transfer of power from shop floor to managers and the professional class. Clause 87, I believe, is one key to the Government's strategy in this respect. They are trying to do what managers traditionally have done; that is, divide the working class, take them section by section, and then, having done that, deal with the workers in weak groups, in that way gaining the domination which traditionally they have been able to hold because of their ownership of economic power.
§ [Sir ALFRED BROUGHTON in the Chair]
§ 9.0 p.m.
§ Sir Harmar Nicholls
It is very interesting that men who are equally alert and equally sincere look at the same thing and come to such diametrically opposite views. The hon. Member for Newcastle-under-Lyme (Mr. Golding) suggested that the Bill was moving away from the parity of bargaining strength. I believe that it brings us nearer real parity than we have been for half a century. The words of the Bill substantiate my point of view, but the lion. Gentleman is just as sincere and sees it differently.
§ Mr. McNamara rose
§ Sir Harmar Nicholls
I shall not give way to the hon. Gentleman, because I have a lot of sympathy with the right hon. Member for Blackburn (Mrs. Castle), who has chastised her hon. Friends in a Friendly way for not running the Committee as it should be run. She is right, and I do not give way to the hon. Gentleman because of this question of procedure. We discuss the principle on Second Reading and to some extent again on the Question "That the Clause stand part of the Bill". At this stage we should not be on different sides. The principle has been settled, and now our job, within the general scheme that we have either accepted or have had foisted upon us, is to try to make the Bill as good as we can. The right hon. Lady was trying to keep her hon. Friends within this stage, and I want to try to keep within it. If we do, the Parliamentary Committee system is pretty good and does a good job.
I hope that the hon. Member for Kingston upon Hull, North (Mr. McNamara) and others who follow him will confine themselves to this job, being good Committee men. I want to do so. It is obvious that we shall get the Bill on the Statute Book, but no one suggests that the words first printed are perfect. That is why we share minds and experiences within the general framework of the Bill to make it as good and acceptable as possible.
I have a complaint against the Member for Putney (Mr. Hugh Jenkins). He used the very example that I wanted to use. It is well founded, and I hope that my hon. and learned Friend the Solicitor-General 1951 will heed it. My Amendment No. 462, which I shall not move—[Horn. MEMBERS: "Oh."] On further consideration, I do not think that the words I put down are good——
§ Sir Harmar Nicholls
In the light of the explanation given by my hon. and learned Friend, it would not be appropriate to ask him to accept those words.
Now I shall be a good Committee man. I want my hon. and learned Friend to try before the Report stage to find better words than mine to face up to the situation put by the hon. Member for Putney. In the film industry a £100 company can hire technicians and artists and fail to pay them, or owe them part of their payment. Being a small company with nothing to lose, it can go into liquidation, leaving those technicians and artists high and dry. The company has the commodity in the can. It has the film that the technicians and artists have created. I hope that my hon. and learned Friend can find words to allow for the processors of the film not turning it into a saleable commodity until the company has settled its debts to the technicians and artists. He would not be weakening the general appeal of the Bill, and he would be plugging up a little hole which is disadvantageous and unfair.
§ Sir Harmar Nicholls
I hope that I am setting an example of brevity that others will follow. When a Committee is dealing with a matter like this, sugar is quite a potent weapon. I say to hon. Members opposite; use a bit of sugar instead of all that vinegar. We have a Solicitor-General answering these debates who is sincere, knows his job and wants to make this a good Bill. Hon. Members should stop being so antagonistic about it. The hon. Member for Woolwich, East (Mr. Mayhew) was right when he said that the Opposition were overreacting. Hon. Members opposite have lost the principle. The Bill is going to be put on the Statute Book. Let them help make it a better Bill by being good Committee men.
§ Mr, Hugh Jenkins
On a point of order, Sir Alfred. I beg to give notice that, at the appropriate time, I shall seek to move Amendment No. 462, standing in the name of the hon. Member for Peterborough (Sir Harmar Nicholls).
The Temporary Chairman
The Amendment has not been selected by the Chairman of Ways and Means for a vote.
§ Mr. Hugh Jenkins
Further to that point of order, Sir Alfred. The Amendment is on the Notice Paper, and I understood that if hon. Members wish to do so an Amendment on the Notice Paper can be moved.
§ Sir Harmar Nicholls
Further to that point of order, Sir Alfred. Is it not the case that one can move an Amendment only if one has attached one's name to it?
The Temporary Chairman
It is correct that an Amendment which appears on the Notice Paper in Committee can be moved by any hon. Member. But it can be moved only with the permission of the Chairman, and this Amendment has not been selected to be moved.
§ Mr. Hooson
The hon. Member for Peterborough (Sir Harmar Nicholls) has demonstrated what I call a saccharine paternalism towards the Committee, and it is to be hoped that in future when he addresses us he will take his own advice to heart.
I agree broadly with the principle stated by the Solicitor-General on this Clause, because there are dangers—and indeed, there have been examples—of great injustices being caused to independent and entirely innocent parties in disputes because it is thought that they should be involved so as to broaden the industrial front. They often suffer severely in the process. I am entirely 1953 with the Solicitor-General in desiring to give protection to that kind of person. I also agree with him that there are a number of decided cases—a labyrinth of cases—and that it would be a good thing if a clear position were to be enunciated and an end put to the disputes which arise from these causes.
Having said that, I am not at all convinced that the Clause is not drawn far too broadly. For example, it seems to me that the very concept of "extraneous party" is difficult to accept. If one is in a dispute, one is a party to a dispute. The very words "extraneous party" are self-contradictory. A person or association is either a party to the dispute or extraneous to the dispute.
Subsections (2) and (3) are very complicated. It would have been better for the unions if they had not existed and Clause 87(1) had read as it does but with the substitution of the words, "other person is a party or is not a party in relation to that industrial dispute". If the wording were in that form, it would be much better than it is now. I understand the hon. and learned Gentleman to have in mind a kind of protection to enable parties who are perhaps associated with companies involved in a dispute not to be drawn in. This is a crucial Clause and there is no doubt as to its wide ambit as drawn.
If there is an industry-wide dispute in which some firms are involved in association while producing the same kind of goods, but not in association with other companies, and there are union workers employed in each, the union workers employed in a company not associated with the others would be in breach if they took strike action. It is difficult to see how the Clause as drawn cannot work considerable injustice.
I say "as drawn", but we can consider the Clause only as drawn. The history of Parliament shows how the intentions of any Government are different from court decisions later, when the words enacted by Parliament are interpreted, and one sees how often right hon. and learned and hon. and learned Members and others on the Government Front Bench, of whatever party, have been found to be wrong.
The words of the Clause are far too wide, and I should support an Amend- 1954 ment for the deletion of subsection (2), because the Clause does not carry out the intention as stated by the Solicitor-General. The hon. and learned Gentleman has given an absolute undertaking about one matter, and, as I understand his present mood, he is prepared to look again at the whole Clause with a view to introducing different words to limit the intention he has stated. I do not think that any fair-minded person could dispute the intention he has delimited, but the words of the Clause, which is all the Committee has to consider, are so wide as to be likely to wreak injustice.
§ The Solicitor-General
The Committee is plainly anxious to move to the "Clause stand part" debate, and I should like to deal more generally with the Amendments.
I begin by taking up a point made by the hon. and learned Member for Montgomery (Mr. Hooson). He suggested that the industry-wide strike on terms and conditions of employment might be caught automatically by the Clause. Quite apart from what I have been looking at, the structure of the Clause, I suggest that it is not likely or possible that that would happen, because the Clause is not aimed at anyone who induces breaches of contract of employment.
If a sympathy strike throughout an industry takes place because of the claim by the workers in one part of it, a fair strike about their terms and conditions of employment, and the other workers throughout the industry join in, someone inducing them to break their contract of employment would not come within the Clause. Only if the person inducing the sympathetic strikers throughout the industry-wide strike were doing so with a view to securing breaches of contract other than contracts of employment would the Clause begin to bite.
I take the point that the Clause as drafted might inadvertently catch that, and that is why I have undertaken to look at it again, but it is certainly not the intention to prescribe calling or inducing strikes by other people throughout an industry simply because that involves them in breaking their contracts of employment; it is only if the secondary strikes are specifically directed to bringing about a breach of contract other than a contract of employment, and that is 1955 what the Clause is directed at. The position does not arise if the respondent can show that the party whose contract is being broken is not extraneous to but is supporting the original strike.
To deal with some of the particular points and examples which have been put to me, the important point to emphasise is that subsection (3) is saying that a person shall not be regarded as having taken supporting action by reason only that he is an associated employer, or member, of the same employers' organisation, and so on. It is not asserting that associated employers are automatically to be regarded as extraneous. All that is asserted is that the mere fact of association and common membership of an employers' association does not in itself establish that he is taking materially supporting action. Of course, a member of the same federation or the same group of employers would immediately become a supporting party if taking action in support of the employer primarily struck against. It is here we try to draw the line between the wholly innocent party away from a dispute altogether and people who are reasonably and legitimately involved.
The hon. Member for Newcastle-under-Lyme (Mr. Golding) raised the question of the relationship between the Post Office Engineering Union and the U.P.W. and the question of how far any supporting action might or might not be fair under the Bill. That, again, would not be affected by this provision. We start off with a fair primary strike by the U.P.W. about its new wage bargain, and if anyone sought to persuade the members of the P.O.E.W. to strike in support of that, that persuasion would be directed not to particular breaches of particular contracts by the Post Office but to persuading it to undertake a sympathy strike in support of the fair primary strike. There will be no question of that being caught by this Clause or in any other way.
The hon. Member for Putney (Mr. Hugh Jenkins)—and my hon. Friend the Member Peterborough (Sir Harmar Nicholls), though on a slightly different tack, but in general along the same lines—put an example to me of a situation which is not unfamiliar in the motion picture industry. The answer is that if under the present law officials of A.C.T.A.T. were to persuade 1956 the work people of the film processing company to break their contracts of employment with a view to procuring a breach by the film processing company of its processing contract, then, even with the law as it now stands, and subject to the way in which they did it and the way in which the particular facts fitted in with the maze described in the Donovan Report, the procurement by union officials of a breach of the processing contract could now quite probably be actionable and restrainable under the present law.
§ The Solicitor-General
In theory. It is a situation in respect of which actions have been brought, though not, so far as I know, in that particular situation.
The same could well be true of Clause 87(3) as drafted. The present position is that the people calling such a strike as individuals, though not the union, could be found liable under the present law. Under Clause 87 as drafted the people calling the strike could not be found liable but the union could be. It is difficult to say whether the affected party would or should be regarded as an extraneous party.
I am grateful to the hon. Member for Putney for raising that example, which illustrates the difficulty raised by the hon. and learned Member for Montgomery, of defining the extent to which we reserve the balance of the present law which gives some protection to the innocent, outside party and the extent to which we modify it so as to legitimise fair strikes which are in pursuit of a fair primary objective. The example given by the hon. Member is one to add to the many others which we have considered and at which we shall look in the course of the reconsideration of this Clause.
I invite the Committee to reject the Amendments, which go to the heart of the Clause, and to support the principle of the Clause on the basis that there is a clear distinction between the legitimate use of sympathetic supporting strike action and the use which goes further than can be justified in the complex state of modern society and involves innocent people who should not be involved in the dispute.
§ Mrs. Castle
As the Solicitor-General said, we are all anxious to get on to the 1957 Question, That the Clause stand part of the Bill, because my hon. Friends have been in great difficulty in having to discuss the vital principles associated with the Clause in the context of Amendments of limited scope. We have had this difficulty throughout our discussions on the Bill. We have all found it quite impossible, if we wanted to do so, which we certainly do not, to do what the hon. Member for Peterborough (Sir Harmar Nicholls) suggested, namely, to sit down together and improve the details of the Bill before we have had a chance to bring home to the Solicitor-General the fact that the details of the Bill are a reflection of a basically wrong principle. This has been our problem. It is not our fault that our Amendment dealing with the principle was not called. We are therefore merely discussing one aspect of the Clause.
The hon. Member for Peterborough, who pays us rather hurried visits from wherever it is he comes from and goes back again, having lectured us about how naughty we were to attack the Clause and how we should be sitting down with him to try to improve its detail, went on to quote examples of how bad the Clause was in its effect. I could not help feeling that circumstances alter cases. In discussing a Clause like this we can get involved in terrible abstractions and easily lose our way unless we are careful. It is interesting to note how, when any of us has had personal experience, the abstractions which sound so plausible in the mouth of the Solicitor-General turn out to be very different animals when aplied to concrete situations. That is the truth about some of the abstractions which we have heard from the Solicitor-General on these two Amendments.
The hon. and learned Gentleman admitted that valid points of detailed criticism had been made from this side of the Committee and went on to say that he would look into some of the wording of the Clause, thus proving what was clear, I should have thought, to anybody listening to this debate, that if the Clause was intended to clarify the obscurities of the law on the secondary boycott—obscurities of which the Donovan Report complained—it had failed dismally. All the Solicitor-General has managed to do is to make the legal situation still more 1958 obscure and still more of a minefield for any trade unionist trying to thread his way through it.
That is why the Donovan Report said that the only way to deal with this situation was to clarify the law. The Donovan Report said that the principle of borrowed strength was not only a traditional principle of industrial relations but a hallowed principle by any standards responding to natural human needs and the needs of those trying to organise for certain ends. Donovan wanted the law clarified to make the path forward more sure for trade unionists. What the Solicitor-General is doing by this Clause, as he has made clear in his remarks to us, is attempting to clarify the law by increasing the restrictions on trade unions, and that is why we have this phony distinction which is put before us of the difference between an "innocent" employer caught up in the wicked machinations of trade unions and the employer who may be said to have a real interest in the strike though not an immediate and direct party to it.
So we come to this definition of the extraneous employer who, in the words of the Solicitor-General, is an innocent employer and ought therefore to be left alone. What the Clause as it now stands says is that an extraneous party is an employer who is
- "(a) … not a party to that dispute, and
- (b) has not … taken any action in material support"
First and foremost, of course, this adds nothing to the relief of obscurity, because it is certainly not easy to define the concept of who is and who is not a party to the dispute. We had some exchanges about that earlier in connection with the dockyards, and I hope my hon. Friends will be following this up in the wider discussion on the Question, That the Clause stand part of the Bill.
When we turn to the other limb of this part of the Clause, namely, what constitutes material support, we are entering a very wide field indeed, for subsection (2)(b) says that if an employer is to be considered extraneous and therefore innocent he must not have given material supportin contemplation or furtherance of that dispute".1959 I am sure that we on this side are still totally unsatisfied that this does not mean that the ordinary supplier of goods who knows that his supplies are helping to break a strike does not then become an extraneous or an innocent party, because if that is so, if it is true that the ordinary supplier of goods who knows that his supplies are helping to break a strike becomes an innocent party so that there may be no action against him by his own workers, then this eliminates almost every supporting employer. Every supporting employer becomes extraneous. The extension of this meaning is very wide indeed, and we believe that it was intended to be wide. We believe that the purpose of these words is really to compound the apparent obscurity of the law instead of clearing it up, and to make darn sure that there will be very few guilty employers indeed under these secondary boycott provisions and, therefore, very few employers against whom it will be legal to take secondary boycott action.
Then the Government go even further —in subsection (3). As my hon. Friend the Member for South Ayrshire (Mr. Sillars) pointed out, the Government go out of their way to ensure that whole groups of employers whom the ordinary layman would consider certainly to have an interest in and an influence upon a strike are rendered immune from sympathetic action.
The Solicitor-General gave an interesting explanation of the reference to the associated employer in subsection (3)(a). It is remarkable that he should say that an associated employer should be immune. An associated employer may have financial, commercial and possibly negotiating and bargaining links with the employer who is involved in the original strike. It is contrary to all commonsense that an associated employer should be called an innocent party. I am glad to see the hon. Member for Sudbury and Woodbridge (Mr. Stainton) nodding his head—
§ Mr. Keith Stainton (Sudbury and Woodbridge)
I cannot extend my area of agreement with the right hon. Lady over the entire range of what she is saying, but on this point I am disturbed, and I should like it to register with the Solicitor-General.
§ Mrs. Castle
We have had an explanation from the Solicitor-General. The Solicitor-General was challenged on this by several of my hon. Friends. He said that he was merely saying that a person shall not be regarded as having taken the action mentioned by reason only that he is an associated employer, and he shall not be regarded as having given material support by reason only that he is an associated employer. We say that an associated employer must be deemed to be guilty in the Solicitor-General's sense, namely the opposite of innocent or extraneous, because he is associated. Why is this reference to the associated employer spelt out in subsection (3)? The Solicitor-General said that all he was saying was that he shall not automatically be regarded as guilty, not extraneous. To that we reply, why not automatically assume that there is a connection?
I do not use "guilty" in an emotive sense. It is the Solicitor-General who uses these emotive terms about people being innocent or guilty employers. It is an absurd concept, because the opposite of innocence is guilt. There is no guilt in being an associated employer and having an interest in whether a strike succeeds or is broken. In commercial terms it is a straight piece of negotiation. The Solicitor-General loves wheeling out these moving phrases which make the general public feel that the Government are on the side of God.
§ Mr. Hooson
I want to reinforce the right hon. Lady's point. I had not noticed until now that "associated employer" is defined for the purpose of the Bill in Clause 148(5) and has a very narrow meaning indeed.
§ Mrs. Castle
I was coming to that point.
Then the Government go out of their way in the interpretation Clause to define the associated employer in subsection (5). That definition has already been read by my hon. Friend the Member for South Ayrshire (Mr. Sillars). It says clearly that an associated company is one that has a linked control. It cannot possibly be extraneous. My hon. Friend the Member for Doncaster (Mr. Harold Walker) has just pointed out to me that the definition of associated company in this Bill is the definition of associated employment which we put into the Equal Pay Act. 1961 Why did we do that? We did that to say that a woman shall be given equal treatment with men in the same employment and then we went on to define the same employment as being the same employment by men employed by her employer or any associated employer because there is a common interest and responsibility and a common link.
The Government are standing the whole concept on its head. They are saying that the very fact that there is this kind of link, commercial, financial, negotiating and all the rest, does not automatically mean that the employer is guilty. If it does not mean that what does it mean? Does it mean that he is extraneous? The hon. and learned Gentleman cannot have it both ways. He has to put it positively, we cannot be left in the air with this negative. Trade unionists and workers can be penalised by law once the Bill is passed and they have a right to have it put the positive way round, not the double negative way. If it does not automatically follow that because an employer is associated he is guilty, and therefore the action against him is legal, when will the action against him be illegal? Tell us that. Tell the trade union movement. It is intolerable to add to the obscurity of the present law. This is a classic example of the double talk and double meanings which we are getting from the Government together with all of the double dangers.
Secondly, says the Solicitor-General, the mere membership of an employer's organisation does not destroy the innocent status of the secondary employer. However, that organisation may have decided to use its collective strength to resist strikes. Thirdly, subsection (3) spells it out, an employers' organisation or any group of employers may actually set up a strike indemnity fund, as the Engineering Employers Federation has done, to compensate any one of its members against loss which they may incur in resisting strikes generally.
That is to become legal under the Bill. The fact that an employer is contributing to a common indemnity fund to resist strikes does not deprive him of his innocence under the Clause. It is an intoler-
§ able example of the incompatibility between what the Government do and say. No wonder they have been accused of hypocrisy by my hon. Friend the Member for Liverpool, Walton (Mr. Heffer). I think that his language was remarkably restrained in view of the enormity of this Measure. I say to the Solicitor-General, "Come on, let's be adult, let's play it straight with one another". Will he not admit that Clause 87(3)(c) was put into the Bill at the specific request of the Engineering Employers Federation? The Federation has been running this indemnity fund; it can hardly come before any common sense audience and claim to be entirely innocent in the situation when it has its indemnity fund as part and parcel of its apparatus for fighting strikes. But if a trade union tries to use borrowed strength against the collective strength of the Federation, the Solicitor-General will have it up and see that it suffers the penalties of this law.
The Committee may be interested to know that the final crux of the situation is that contributions to strike indemnity funds are probably allowable for tax purposes. My hon. Friend the Member for Doncaster asked a pertinent Question about this on 12th February. He asked the Chancellor of the Exchequer
… if a company's contributions to a strike indemnity fund of an employers' association are allowable for tax purposes.
The Financial Secretary to the Treasury replied:
This would depend on the constitution of the association and the rules governing the indemnity fund."—[OFFICIAL REPORT, 12th February, 1971; Vol. 811, c. 287.]
§ There is an admission that these indemnity funds can even be financed by the taxes of the strikers whom they are out to penalise. How far can we go in the enormities of this Clause?
§ Having listened to the Solicitor-General's pathetic travesty of an argument, I ask the Committee seriously to back this Amendment.
§ Question put, That the Amendment be made:—
§ Committee divided: Ayes 241, Noes 276.1967
|Division No. 166.]||AYES||[9.42 p.m.]|
|Abse, Leo||Archer, Peter (Rowley Regis)||Ashton, Joe|
|Allaun, Frank (Salford, E.)||Armstrong, Ernest||Atkinson, Norman|
|Allen, Scholefield||Ashley, Jack||Bagier, Gordon A. T.|
|Barnes, Michael||Hardy, Peter||O'Halloran, Michael|
|Barnett, Joel||Harrison, Walter (Wakefield)||O'Malley, Brian|
|Beaney, Alan||Hart, Rt. Hn. Judith||Oram, Bert|
|Benn, Rt. Hn. Anthony Wedgwood||Hattersley, Roy||Orbach, Maurice|
|Bennett, James (Glasgow, Bridgeton)||Healey, Rt. Hn. Denis||Orme, Stanley|
|Bidwell, Sydney||Heffer, Eric S.||Oswald, Thomas|
|Bishop, E. S.||Hilton, W. S.||Owen, Dr. David (Plymouth, Sutton)|
|Blenkinsop, Arthur||Hooson, Emlyn||Palmer, Arthur|
|Boardman, H. (Leigh)||Horam, John||Pannell, Rt. Hn. Charles|
|Booth, Albert||Houghton, Rt. Hn. Douglas||Parker, John (Dagenham)|
|Bottomley, Rt, Hn. Arthur||Howell, Denis (Small Heath)||Parry, Robert (Liverpool, Exchange)|
|Boyden, James (Bishop Auckland)||Huckfield, Leslie||Pavitt, Laurie|
|Bradley, Tom||Hughes, Rt. Hn. Cledwyn (Anglesey)||Peart, Rt. Hn. Fred|
|Brown, Bob (N'c'tle-upon-Tyne, W.)||Hughes, Mark (Durham)||Pendry, Tom|
|Brown, Hugh D. (G'gow, Provan)||Hughes, Robert (Aberdeen, N.)||Pentland, Norman|
|Brown, Ronald (Shoreditch & F'bury)||Hughes, Roy (Newport)||Perry, Ernest G.|
|Buchan, Norman||Hunter, Adam||Prentice, Rt. Hn. Reg|
|Butler, Mrs. Joyce (Wood Green)||Irvine, Rt.Hn. Sir Arthur (Edge Hill)||Prescott, John|
|Callaghan, Rt. Hn. James||Janner, Greville||Price, J. T. (Westhoughton)|
|Campbell, I. (Dunbartonshire, W.)||Jeger, Mrs. Lena (H'b'n&St.P'cras, S.)||Price, William (Rugby)|
|Cant, R. B.||Jenkins, Hugh (Putney)||Probert, Arthur|
|Carmichael, Neil||John, Brynmor||Rankin, John|
|Carter, Ray (Birmingh'm, Northfield)||Johnson, James (K'ston-on-Hull, W.)||Reed, D. (Sedgefield)|
|Castle, Rt. Hn. Barbara||Johnson, Walter (Derby, S.)||Rhodes, Geoffrey|
|Clark, David (Colne Valley)||Joncs, Barry (Flint, E.)||Roberts, Rt. Hn. Goronwy (Caernarvon)|
|Cocks, Michael (Bristol, S.)||Jones, Dan (Burnley)||Roderick, Caerwyn E. (Br'c'n&R'dnor)|
|Cohen, Stanley||Jones, Rt.Hn. Sir Elwyn (W.Ham, S.)||Roper, John|
|Coleman, Donald||Jones, Gwynoro (Carmarthen)||Rose, Paul B.|
|Concannon, J. D.||Jones, T. Alec (Rhondda, W.)||Ross, Rt. Hn. William (Kilmarnock)|
|Corbet, Mrs. Freda||Judd, Frank||Sheldon, Robert (Ashton-under-Lyne)|
|Cox, Thomas (Wandsworth, C.)||Kaufman, Gerald||Shore, Rt. Hn. Peter (Stepney)|
|Crawshaw, Richard||Kelley, Richard||Short, Rt.Hn. Edward (N'c'tle-u-Tyne)|
|Cronin, John||Kinnock, Neil||Short, Mrs. Renée (W'hampton, N.E.)|
|Crosland, Rt. Hn. Anthony||Lambie, David||Silkin, Rt. Hn. John (Deptford)|
|Cunningham, G. (Islington, S.W.)||Lamond, James||Sillars, James|
|Dalyell, Tam||Latham, Arthur||Silverman, Julius|
|Davidson, Arthur||Leadbitter, Ted||Skinner, Dennis|
|Davies, Denzil (Llanelly)||Lee, Rt. Hn. Frederick||Small, William|
|Davies, G. Elfed (Rhondda, E.)||Leonard, Dick||Smith, John (Lanarkshire, N.)|
|Davies, Ifor (Gower)||Lever, Rt. Hn. Harold||Spriggs, Leslie|
|Davis, Clinton (Hackney, C.)||Lewis, Arthur (W. Ham, N.)||Stallard, A. W.|
|Deakins, Eric||Lewis, Ron (Carlisle)||Stewart, Rt. Hn. Michael (Fulham)|
|Dell, Rt. Hn. Edmund||Lipton, Marcus||Stoddart, David (Swindon)|
|Dempsey, James||Lomas, Kenneth||Stonehouse, Rt. Hn. John|
|Doig, Peter||Loughlin, Charles||Strang, Gavin|
|Dormand, J. D.||Lyons, Edward (Bradford, E.)||Strauss, Rt. Hn. G. R.|
|Douglas, Dick (Stirlingshire, E.)||Mabon, Dr. J. Dickson||Summerskill, Hn. Dr. Shirley|
|Douglas-Mann, Bruce||McBride, Neil||Taverne, Dick|
|Driberg, Tom||McCartney, Hugh||Thomas, Rt.Hn. George (Cardiff, W.)|
|Duffy, A. E. P.||McElhone, Frank||Thomas, Jeffrey (Abertillery)|
|Dunn, James A.||McGuire, Michael||Thomson, Rt. Hn. G. (Dundee, E.)|
|Dunnett, Jack||Mackenzie, Gregor||Tinn, James|
|Eadie, Alex||Mackie, John||Tomney, Frank|
|Edelman, Maurice||Mackintosh, John P.||Torney, Tom|
|Edwards, Robert (Bilston)||Maclennan, Robert||Tuck, Raphael|
|Edwards, William (Merioneth)||McMillan, Tom (Glasgow, C.)||Urwin, T. W.|
|Ellis, Tom||McNamara, J. Kevin||Varley, Eric C.|
|English, Michael||MacPherson, Malcolm||Wainwright. Edwin|
|Evans, Fred||Mahon, Simon (Bootle)||Walden, Brian (B'm'ham, All Saints)|
|Fernyhough, E.||Mallalieu, J. P. W. (Huddersfield, E.)||Walker, Harold (Doncaster)|
|Fisher, Mrs. Doris (B'ham, Ladywood)||Marks, Kenneth||Wallace, George|
|Fletcher, Raymond (Ilkeston)||Marquand, David||Watkins, David|
|Fletcher, Ted (Darlington)||Marsh, Rt. Hn. Richard||Weltzman, David|
|Foley, Maurice||Mason, Rt. Hn. Roy||Wellbeloved, James|
|Ford, Ben||Meacher, Michael||Wells, William (Walsall, N.)|
|Forrester, John||Mellish, Rt. Hn. Robert||White, James (Glasgow, Pollok)|
|Fraser, John (Norwood)||Mendelson, John||Whitehead, Phillip|
|Freeson, Reginald||Mikardo, Ian||Whitlock, William|
|Galpern, Sir Myer||Milian, Bruce||Williams, Alan (Swansea, W.)|
|Gilbert, Dr. John||Miller, Dr. M. S.||Williams, Mrs. Shirley (Hitchin)|
|Ginsburg, David||Milne, Edward (Blyth)||Williams, W. T. (Warrington)|
|Gordon Walker, Rt. Hn. P. C.||Morgan, Elystan (Cardiganshire)||Wilson, Alexander (Hamilton)|
|Gourlay, Harry||Morris, Alfred (Wythenshawe)||Wilson, Rt. Hn. Harold (Huyton)|
|Grant, George (Morpeth)||Morris, Charles R. (Openshaw)||Wilson, William (Coventry, S.)|
|Griffiths, Eddie (Brightside)||Morris, Rt. Hn. John (Aberavon)|
|Griffiths, Will (Exchange)||Moyle, Ronald||TELLERS FOR THE AYES:|
|Grimond, Rt. Hn. J.||Mulley, Rt. Hn. Frederick||Mr. Joseph Harper and|
|Hamilton, James (Bothwell)||Murray, Ronald King||Mr. John Golding.|
|Hannan, William (G'gow, Maryhill)||Ogden, Eric|
|Adley, Robert||Archer, Jeffrey (Louth)||Awdry, Daniel|
|Alison, Mickael (Barkston Ash)||Astor, John||Baker, Kenneth (St. Marylebone)|
|Allason, James (Hemel Hempstead)||Atkins, Humphrey||Baker, W. H. K. (Banff)|
|Balniel, Lord||Grieve, Percy||More, Jasper|
|Batsford, Brian||Griffiths, Eldon (Bury St. Edmunds)||Morgan, Geraint (Denbigh)|
|Beamish, Col. Sir Turton||Grylis, Michael||Morgan-Giles, Rear-Adm.|
|Bell, Ronald||Gummer, Selwyn||Morrison, Charles (Devizes)|
|Bennett, Sir Frederic (Torquay)||Gurden, Harold||Mudd, David|
|Benyon, W.||Hall, Miss Joan (Keighley)||Murton, Oscar|
|Berry, Hn. Anthony||Hall, John (Wycombe)||Nabarro, Sir Gerald|
|Biffen, John||Hall-Davis, A. G. F.||Neave, Airey|
|Biggs-Davison, John||Hamilton, Michael (Salisbury)||Nicholls, Sir Harmar|
|Blaker, Peter||Hannan, John (Exeter)||Noble, Rt. Hn. Michael|
|Boardman, Tom (Leicester, S.W.)||Harrison, Brian (Maldon)||Normanton, Tom|
|Body, Richard||Harrison, Col. Sir Harwood (Eye)||Nott, John|
|Boscawen, Robert||Haselhurst, Alan||Onslow, Cranley|
|Boyd-Carpenter, Rt. Hn, John||Havers, Michael||Oppenheim, Mrs. Sally|
|Braine, Bernard||Hawkins, Paul||Orr, Capt. L. P. S.|
|Bray, Ronald||Hayhoe, Barney||Owen, Idris (Stockport, N.)|
|Brewis, John||Hicks, Robert||Page, Graham (Crosby)|
|Brinton, Sir Tatton||Hiley, Joseph||Parkinson, Cecil (Enfield, W.)|
|Brocklebank-Fowler, Christopher||Hill, John E. B. (Norfolk, S.)||Peel, John|
|Brown, Sir Edward (Bath)||Hill, James (Southampton, Test)||Percival, Ian|
|Bruce-Gardyne, J.||Holland, Philip||Pike, Miss Mervyn|
|Bryan, Paul||Holt, Miss Mary||Pink, R. Bonner|
|Buchanan-Smith, Alick (Angus, N&M)||Hordern, Peter||Powell, Rt. Hn. J. Enoch|
|Buck, Antony||Hornsby-Smith, Rt.Hn. Dame Patricia||Price, David (Eastleigh)|
|Bullus, Sir Eric||Howe, Hn. Sir Geoffrey (Reigate)||Prior, Rt. Hn. J. M. L.|
|Burden, F. A.||Howell, Ralph (Norfolk, N.)||Proudfoot, Wilfred|
|Butler, Adam (Bosworth)||Hunt, John||Pym, Rt. Hn. Francis|
|Campbell, Rt.Hn. G. (Moray&Nairn)||Hutchison, Michael Clark||Quennell, Miss J. M.|
|Carlisle, Mark||Iremonger, T. L.||Raison, Timothy|
|Cary, Sir Robert||James, David||Ramsden, Rt. Hn. James|
|Channon, Paul||Jessel, Toby||Rawlinson, Rt. Hn. Sir Peter|
|Chapman, Sydney||Johnson Smith, G. (E. Grinstead)||Redmond, Robert|
|Chataway, Rt. Hn. Christopher||Jones, Arthur (Northants, S.)||Reed, Laurance (Bolton, E.)|
|Chichester-Clark, R.||Jopling, Michael||Rees, Peter (Dover)|
|Clark, William (Surrey, E.)||Joseph, Rt. Hn. Sir Keith||Rees-Davies, W. R.|
|Clarke, Kenneth (Rushcliffe)||Kaberry, Sir Donald||Rhys Williams, Sir Brandon|
|Clegg, Walter||Kellett, Mrs. Elaine||Ridley, Hn. Nicholas|
|Cockeram, Eric||Kershaw, Anthony||Ridsdale, Julian|
|Coombs, Derek||Kilfedder, James||Roberts, Michael (Cardiff, N.)|
|Cooper, A. E.||Kimball, Marcus||Roberts, Wyn (Conway)|
|Cordle, John||King, Evelyn (Dorset, S.)||Rossi, Hugh (Hornsey)|
|Cormack, Patrick||King, Tom (Bridgwater)||Rost, Peter|
|Costain, A. P.||Kinsey, J. R.||Russell, Sir Ronald|
|Critchley, Julian||Kirk, Peter||St. John-Stevas, Norman|
|Crouch, David||Knight, Mrs. Jill||Scott, Nicholas|
|Crowder, F. P.||Knox, David||Scott-Hopkins, James|
|Curran, Charles||Lambton, Antony||Sharples, Richard|
|Dalkeith, Earl of||Lane, David||Shaw, Michael (Sc'h'gh & Whitby)|
|d'Avigdor-Goldsmid, Sir Henry||Langford-Holt, Sir John||Shelton, William (Clapham)|
|d'Avigdor-Goldsmid, Mai.-Gen. Jack||Legge-Bourke, Sir Harry||Simeone, Charles|
|Sinclair, Sir George|
|Dean, Paul||Le Marchant, Spencer||Skeet, T. H. H.|
|Digby, Simon Wingfield||Lewis, Kenneth (Rutland)||Smith, Dudley (W'wick & L'mington)|
|Dixon, Piers||Lloyd, Rt.Hn. Geoffrey (Sut'nC'dfield)||Soref, Harold|
|Dodds-Parker, Douglas||Lloyd, Ian (P'tsm'th, Langstone)||Speed, Keith|
|Douglas-Home, Rt. Hn. Sir Alec||Longden, Gilbert||Spence John|
|Drayson, C. B.||Loveridge, John||Sproat, Ian|
|du Cann, Rt. Hn. Edward||McAdden, Sir Stephen||Stainton, Keith|
|Dykes, Hugh||MacArthur, Ian||Stanbrook, Ivor|
|Edwards, Nicholas (Pembroke)||McCrindle, R. A.||Stodart, Anthony (Edinburgh, W.)|
|Elliot, Capt. Walter (Carshalton)||McLaren, Martin||Stoddart-Scott, Col. Sir M.|
|Elliott, R. W. (N'c'tle-upon-Tyne, N.)||Maclean, Sir Fitzroy||Stokes, John|
|Emery, Peter||McMaster, Stanley||Stuttaford, Dr. Tom|
|Eyre, Reginald||Macmillan, Maurice (Farnham)||Sutcliffe, John|
|Farr, John||McNair-Wilson, Michael||Tapsell, Peter|
|Fenner, Mrs. Peggy||McNair-Wilson, Patrick (NewForest)||Taylor, Sir Charles (Eastbourne)|
|Fidler, Michael||Maddan, Martin||Taylor, Edward M. (G'gow, Cathcart)|
|Fletcher-Cooke, Charles||Madel, David||Taylor, Frank (Moss Side)|
|Fookes, Miss Janet||Maginnie, John E.||Taylor, Robert (Croydon, N.W.)|
|Foster, Sir John||Marples, Rt. Hn. Ernest||Tebbit, Norman|
|Fowler, Norman||Marten, Neil||Temple, John M.|
|Fox, Marcus||Mather, Carol||Thomas, John Stradling (Monmouth)|
|Fry, Peter||Maude, Angus||Thomas, Rt. Hn. Peter (Hendon, S.)|
|Galbraith, Hn. T. G.||Mawby, Ray||Thompson, Sir Richard (Croydon, S.)|
|Gardner, Edward||Maxwell-Hyslop, R. J.||Trafford, Dr. Anthony|
|Gibson-Watt, David||Meyer, Sir Anthony||Trew, Peter|
|Gilmour, Ian (Norfolk, C.)||Mills, Peter (Torrington)||Tugendhat, Christopher|
|Gilmour, Sir John (Fife, E.)||Mills, Stratton (Belfast, N.)||Turton, Rt. Hn. R. H.|
|Glyn, Dr. Alan||Miscampbell, Norman||van Straubenzee, W. R.|
|Goodhart, Philip||Mitchell, Lt.-Col. C. (Aberdeenshire, W.)||Vaughan, Dr. Gerard|
|Goodhew, Victor||Mitchell, David (Basingstoke)||Vickers, Dame Joan|
|Gorst, John||Moate, Roger||Waddington, David|
|Gower, Raymond||Molyneaux, James||Walder, David (Clitheroe)|
|Grant, Anthony (Harrow, C.)||Monks, Mrs. Connie||Walker, Rt. Hn. Peter (Worcester)|
|Green, Alan||Montgomery, Fergus||Walker-Smith, Rt. Hn. Sir Derek|
|Wall, Patrick||Wiggin, Jerry||Wylie, Rt. Hn. R.|
|Walters, Dennis||Wilkinson, John||Younger, Hn, George|
|Ward, Dame Irene||Wolrige-Gordon, Patrick|
|Warren, Kenneth||Woodhouse, Hn. Christopher||TELLERS FOR THE NOES:|
|White, Roger (Gravesend)||Woodnutt, Mark||Mr. Bernard Weatherill and|
|Whitelaw, Rt. Hn. William||Worsley, Marcus||Mr. Tim Fortescue.|
§ Mr. Hugh Jenkins
On a point of order. As you are aware, Sir Alfred, during the course of a debate fresh points sometimes arise as a result of which it is decided that it would help generally if a vote were taken on a subsidiary Amendment. I submit for your consideration that such a fresh point has arisen in relation to Amendment No. 462, in the name of the hon. Member for Peterborough (Sir Harmar Nicholls). In the course of our discussion it was clearly shown that that Amendment raised issues not covered by the Amendment that was moved. It deals with a separate issue, which ought to be decided separately by the Committee. You have been here throughout the discussion, Sir Alfred, and you will doubtless recognise that a fresh point was raised. In those circumstances I beg to ask leave formally to move Amendment No. 462 for a Division.
The Temporary Chairman
Let me say at once that I cannot grant permission for Amendment No. 462 to be moved. Very careful consideration of all the Amendments has been given by the Chairman of Ways and Means. He has made a selection, and I do not have the power to vary it.
§ Question proposed, That the Clause stand part of the Bill.
§ Mr. Heffer
My hon. Friends and I wish to debate this Clause in a little more detail than we have been able to do up to now. A great deal of what has been said by my right hon. Friend the Member for Blackburn (Mrs. Castle) covers many of the arguments that we would deploy. I pay tribute to my right hon. Friend; the contribution that she has made has emphasised precisely how difficult it is for the layman to get to grips with the Bill and to understand it. We shall want some very clear answers from the Solicitor-General in relation to the points made by my right hon. Friend.
I shall have to be a little careful about what I say during the debate, as I seem to have run into a little local difficulty on a couple of occasions today. 1968 I will do my best to keep strictly in order.
We regard not only the Clause but the whole of Part V as one of the most pernicious parts of the Bill as far as it operates against the trade union movement. The Clause is probably the most pernicious Clause of a Bill which is full of pernicious Clauses. We shall make it clear during the next two or three hours that this part of the Bill and especially this Clause ought to be withdrawn. I am very interested to note that even the representative of the Liberal Party also appealed to the Solicitor-General to withdraw this part of the Bill.
In the course of an earlier brief speech, the Solicitor-General made it absolutely clear that whereas Clauses 85 and 86 could well apply to unregistered trade unions and to unofficial strikers—although there was argument about interpretation—nevertheless this Clause, to use his words, is directed in a different way and it affects strikes whether they are official or unofficial, whether the strike began as a so-called fair strike or as an unfair industrial practice. This is the basic point on the Clause.
The Roberts Arundel dispute was mentioned both yesterday and today. I know that the hon. and learned Gentleman would say that that dispute would be covered by the fact that within the Bill the union could apply for recognition and the American employer would be forced to grant it. It may well be that an employer could be forced to grant recognition under the Bill. But, having been forced to accept recognition of the trade union, an employer could then carry out a series of actions which could lead to the workers taking what hon. Members on the other side of the Committee would regard as a fair action and calling an official dispute at that firm. We should remember the type of management with which we would be dealing. It is one that has made it perfectly clear that it really objects to the principle of trade unions. But it has been forced into a position of having to accept a trade union. Nevertheless, it will then conduct 1969 the dispute in every possible way to ensure the defeat of the trade union.
Under the Bill the trade union would face an immediate problem. A firm which was supplying goods, perhaps on a long-term contract, could well argue that it had no particular association with the dispute but was merely supplying on the basis of a long-term contract entered into years before when the firm was a British firm.
In those circumstances, under this Part of the Bill, the trade union could not ask the workers in the factories supplying the goods to take action against the supplier.
§ Mr. Heffer
Hon. Gentlemen are agreeing, yet hon. Members opposite deny the argument adduced by many of my hon. Friends to the effect that the Clause tilts the balance entirely in the employer's favour. If there can be no right to appeal to trade unionists in supplying factories, the employer starts off with a 100 per cent. advantage over the union. This is not parity.
§ Mr. Orme
Is my hon. Friend aware that fundamentally the Roberts Arundel strike was not about trades union recognition. It was about bad management. It lasted two years and was resolved only by the union eventually taking three actions—trying to prevent the supply of goods, blacking all sub-contract work in the area, where ever it was being done, and imposing a levy on members throughout the district concerned? All three actions would be illegal under the Clause.
§ Mr. Heffer
I am grateful to my hon. Friend. A study of this dispute shows that for the trade union to be able to defeat this anti-trade union firm it was necessary for pickets to follow certain lorries at night to discover where the goods were coming from and then to appeal to the workers in those factories not to allow the goods to be sent to Roberts Arundel. The trade union had to go further and appeal to trade unionists in Europe. Solidarity on this national 1970 and international scale was necessary to defeat this anti-trade union firm.
§ Mr. David Mitchell
The hon. Gentleman has spoken of the need for solidarity and of the way in which solidarity brought about an end to the Roberts Arundel dispute. In that case, why was not the union able to obtain solidarity in the works? If it had succeeded in achieving that, it would not have needed to take any further action, because no firm can operate without labour?
§ Mr. Heffer
To use an old cliché, I am glad that the hon. Gentleman raised that point, because it leads me on to my next point.
The hon. Member for Chippenham (Mr. Awdry) said that he could not understand why we felt so strongly on this matter. I believe that the hon. Gentleman is genuinely trying to understand our point of view, as I hope that we are trying to understand his. I would not say that of all hon. Members opposite, but I believe that the hon. Member for Chippenham is genuinely trying to understand our point of view.
In reply to the hon. Member for Basingstoke (Mr. David Mitchell), the firm continued with a very small group of workers, all of whom were non-trade unionists. Many of them were paid over the union rates. This rate was paid to get them there for the time being; and then, when the union was destroyed, they would not be paid the official union rates.
The Government say that workers should have a legally protected right not to join a trade union. Let us suppose that a group of these workers, not trade unionists, remained at work and other workers took action because they were not trade unionists. First, that would be an unfair industrial practice, and, second, they would be caught under this Clause at a later stage. So there are two bites at the cherry. Obviously, we cannot accept that.
Now, the question of solidarity. In his excellent speech, my hon. Friend the Member for Doncaster (Mr. Harold Walker) spoke about employers' contributions to an indemnity fund. Indemnity funds are known particularly in the engineering industry, but they are not 1971 confined to engineering. Many employers' associations have them. An indemnity fund is for the purpose of assisting other members who may be involved in a trade dispute or for other reasons regarded as entitled to support.
Apparently, it is perfectly all right for employers to assist one another and to show solidarity—they are not caught under the Bill—but it is no good the workers thinking that they may show solidarity and support one another through sympathetic action. We are told that the balance is not tipped in favour of the employers and the system is perfectly fair. Yet employers may assist one another and, what is more, it is all right if they are members of the same association.
Clause 148(5) means that there could be a number of associated companies with direct financial interests in one another, but under separate forms of management, which could assist one another; yet if the workers decide to take sympathetic action in relation to those managements, they would be in trouble under the Bill. Do hon. Members honestly think that this is fair and not intended to weaken the trade union movement? Of course it is not. I have never seen anything more blatant. We could not possibly accept it.
So often in these debates, I have had to promise my hon. Friends that I would make a short speech so that as many others could take part, and I have done the same tonight, but I wish, before I close, to draw attention to one or two other aspects of the Clause. I take, first, the part which directly relates to the dispute which took place between the Transport and General Workers' Union and the Torquay hotel.
Lord Denning gave this judgment on that occasion:The time has come when the principle—of liability in common law—extends to a case where the third person ate and direct interference with the execution of a contract without that causing any breach.So we have a new concept. It does not even have to cause a breach to be interference with the execution of a contract. He added that such interferenceextends to a case where the third person prevents or hinders a party from performing his contract.1972 In the Clause we find the words: …to interfere with the performance by another person of a contract (not being a contract of employment) to which that other person is a party,It is clear that hon. Members opposite have lifted the judgment of Lord Denning and put it into the Clause. I understand from my legal friends that that is a novel situation in the law. If it is not, I am certain that lawyers on the other side of the Committee will be only too keen to put me right.
This part of the Bill, like most of the Bill, is based upon the Taft-Hartley Act. There is no question about that. I have a copy of that Act. Section 8(b)(4), dealing with this matter, is headed,Unfair labour practices".That Section is taken out almost word for word, though put in a different way—[Interruption.] The words can be the same, but they can be rearranged. If hon. Members opposite do not know that, they do not know anything. The Clause comes straight out of the Taft-Hartley Act.
What exactly does that mean? Again I quote Professor Wedderburn, who, the Solicitor-General says, is a dedicated leftist, or something like that. I can only assume that the Solicitor-General is a dedicated rightist. The hon. and learned Gentleman does not like us referring to what Professor Wedderburn says. In the speech of 12th January Professor Wedderburn said:Clause 87 would make unlawful sympathetic and other secondary strike and solidarity action which has been lawful in Britain for decades. Two leading professors at Yale Law School put it well when they said about the similar Taft-Hartley law in the USA, that curtailing secondary action makes unions 'enter the economic struggle with one hand tied'.That is precisely what happened.
I should now like to quote another passage from Mr. Meany's letter to Mr. Victor Feather. He wrote:Our legislation does not, however, by any means make all forms of secondary industrial action unlawful.' Indeed, questions of what sorts of secondary actions are permissible and what are illegal are the most complex and difficult to answer in our whole body of labor law.That is going to be the position. We shall get into the most difficult and complicated situations in discussing this whole question. 1973 10.15 p.m.
I do not care whether a strike begins as an official strike or as an unofficial strike or whether it starts as an unofficial strike and is made official. We do not always agree with unofficial strikes. Many of us have made statements to unofficial strikers urging them perhaps to take a different line of action. But we have always regarded the right to strike—any form of strike—as one of the most important principles of freedom. It is a principle which The Spectator pointed out a few weeks ago as being undermined by the Bill. It warned us, "Be careful as to what is happening in this country". That principle is not a dangerous philosophy. The dangerous philosophy is that of the Government, who are slowly but surely eroding fundamental rights in this country which have been built up by the trade union movement and by democrats throughout the centuries.
§ Sir Harmar Nicholls rose——
§ Mr. Heffer
I hope the hon. Gentleman will forgive me if I do not give way. I am coming to my conclusion. I am making the point that as far as we are concerned workers have the right to take industrial action to fight for better conditions.
§ Sir Harmar Nicholls rose——
§ Sir Harmar Nicholls
I have great respect for the hon. Gentleman. He is talking from the Opposition Front Bench. He, as an official trade union leader, has just upgraded the value of an unofficial strike.
§ Mr. Heffer
I have not upgraded an unofficial strike. Nor have I downgraded an official strike. I have said that the right to strike, officially or unofficially, is one of the basic freedoms which the working people or any other people have in this country, and that this part of the Bill is taking away the right of workers to take that action without incurring the wrath of the law.
This can be the first step on a very difficult road which the Government are taking, and it is a very serious step. We have seen this sort of thing before in other parts of the world. The process begins like this. A right is eroded very slowly. Then the process builds up. When 1974 there is a continuation of strikes—and this provision will not prevent them from taking place—voices on the benches opposite will be raised, as they are now being raised in the United States, to say, "We have to go further." The question of secondary boycotts is interesting in this context. In 1947, when the Taft-Hartley Act came in, there were very few illegal secondary boycotts. Then the Landrum-Griffin Amendment was introduced and the law was tightened up. Voices are being raised now saying that it should be tightened up even further.
Before we know where we are, we in this country will find that the trade union movemetn is completely tied up-—and all this despite the fact that hon. Members opposite, with their hands on their hearts, are constantly telling us that they are fair in their attitude towards the trade unions.
§ [Miss HARVIE ANDERSON in the Chair]
§ Mr. Ian Percival (Southport)
I was glad to hear the hon. Member for Liver-polo, Walton (Mr. Heifer) assert and acknowledge that there are many of us on both sides of the Committee trying genuinely to understand each other's point of view. I hope that he will he good enough to include me amongst them. I understand the reasons for some of the fears arising from the Clause. I can understand the uneasiness about the words "associated employer". But I suggest to the hon. Gentleman, and to other hon. Members opposite who spoke on the Amendment, that perhaps they are overstating the case on this Clause quite substantially.
§ Mr. Percival
The hon. Gentleman wags his head. If, when I sit down, he is still wagging his head, I shall have failed to make any impression on him. But that should not deter one from trying. I do not challenge his sincerity, but in his peroration the hon. Member for Walton got a little carried away. He said the Clause is intended to tilt the balance wholly in favour of an employer. [Laughter.] Hon. Members may laugh, but we have sat and listened to some of their arguments, some of which might have made us laugh if we had not been considering the matter seriously.
§ Mr. Percival
I shall not rise to that, having been here trying all evening to make the point which I have been rising time and again to make.
The hon. Gentleman might consider the other point of view, that the intention and effect of the Clause is not to tilt the balance in anybody's favour, and most especially not to favour the employer.
What it does is to protect the person who has no part in the dispute from the damage which may be done to him and which may be extremely serious to him and to persons employed by him when he has no connection with it, when there is no fault on his part and when he has no interest. That is another way of looking at it. Is it necessarily wrong to seek to protect that person?
Of course we recognise that the right to strike is something which has been fought for and established, and we recognise it as a perfectly legitimate bargaining weapon and the right to strike is built into the Bill. But should there be a right to take action to damage an innocent party? That is what the Clause is all about. What we are talking about is whether it shall be an unfair industrial practice to take action against a person, who is not a party to the dispute and who has done nothing material in that dispute, for the purpose of injuring him and making someone else do what one wants, by inducing him to break a contract to which he is a party, perhaps with serious consequences for him, or to prevent him, a person not a party to the dispute and who has done nothing in connection with it, from performing a contract into which he has entered and by which he is bound and upon which his livelihood and that of his employees may well depend.
§ Mr. Percival
I am coming to that. What I have done is to say that this is what we are talking about, whether it should be an unfettered right for people to act in that way and so to cause harm 1976 to people who are not a party to and have not taken an active part in the matter.
Having said that, I entirely accept that there is considerable room for discussion as to the precise terms of what is and is not allowed, and I believe that the hon. Member for Salford, West (Mr. Orme) has a substantial point in the wording of subsection (1)(b). I am sure that the Committee was much obliged to my hon. and learned Friend the Solicitor-General for intervening much earlier on to say that he was not happy with it.
§ Mr. Percival
I thought that that was what Parliament was all about—to discuss what was in a Bill. The House of Commons is often more generous than may sometimes appear and I hope that hon. Members will be quick to respond when a Minister in charge acknowledges that the wording is not satisfactory and that changes must be made.
I would suggest one other possibility. The Solicitor-General made it clear that the revised wording is intended to cover preventing somebody from performing his contract. He made it clear that it would not cover preventing somebody from entering into a contract. There is one other matter which arose in the Torquay Hotel case. A contract can often be determined by a week's or a fortnight's notice. I hope that it will be made clear in the revised wording that action to force somebody to terminate a contract which they would not otherwise have terminated will be among actions which constitute an unfair industrial practice. I take the point made by the hon. Member for Salford, West (Mr. Orme) who is concerned that this should not apply to any contract which is broken or interfered with quite incidentally as a result of a strike. However, we have had such a clear assurance that we need not spend more time on that matter.
I understand the misgivings about the use and definition of the phrase "associated employer". It is tolerably clear that because of the use of the word "only" this is not intended to have such wide repercussions as some hon. Members thought. I hope that the Solicitor-General in his revised wording will make 1977 a little clearer that what is meant is that the mere fact that companies are associated shall not prevent somebody being an extraneous party; that there must be some greater connection than a mere association as defined. If there is a way of making it even clearer that that is what is meant, I should welcome it. We do not want to leave room for misgivings. May I as a lawyer say that the one thing we do not want to do is to leave room for argument and litigation—
§ Mr. Percival
I thought that might raise a smile, but there are some of us who have a catalogue of the number of occasions when we have told this House that if it passes something in a particular form it will create work for the lawyers.
1978 The House has usually passed it nevertheless and our point has soon been proved. We are as anxious as anybody to make sure that when legislation leaves this place it is intelligible. Let us accept that there is considerable room for improvement on the detail of the Clause.
What we are concerned with in this debate is whether or not it is right that any person, whether a trade union, unregistered organisation, or anybody else should be free to cause damage to an entirely innocent party in the furtherance of their own interest. I believe it is not right that that position should continue; that it is no infringement of anybody's liberty to say that should not be done. It is the barest protection which should be given to the other members of society who are in no way responsible for or concerned in the dispute.
§ 10.30 p.m.
§ Mr. McNamara
I am grateful for catching your eye at last, Miss Harvie Anderson. I do not mean that in any rude way. It was just an expression of relief, having sat here for nearly seven hours without being called.
The hon. and learned Member for Southport (Mr. Percival) said that we on this side of the Committee were overstating our case and that perhaps some of the fears which my hon. Friend the Member for Liverpool, Walton (Mr. Heffer) outlined would not be realised or were far too great and that it was wrong to say that we were tilting the balance in the employers' favour. But I think that that is correct. I. do not think that the balance was ever tilted in our favour. I do not think that there was ever an equilibrium. The balance has not been "tilted" in the employers' favour; it has been "tilted further" in the employers' favour—much further.
The hon. and learned Gentleman said that the right to strike was built into the Bill. It is. It is walled up. The right to strike has been so limited and curtailed that we shall need the services of the hon. and learned Gentleman every time we have a dispute on the shop floor to be able to see our way through the maze of legislation and conditions which have been discussed before we can decide whether a person is entitled to withdraw his labour.
My trade union has a particular interest in this set of Clauses. The general workers' unions were built up purely and simply on the basis that they would be able to establish their right to strike and to take sympathetic action in order to protect one another. This was learned in Liverpool and other places from Connolly and Larkin, and it gave us our strength so that we could take on employers one by one and use our collective strength to protect ourselves. This right has been taken away by the Bill.
May I say how glad I am to see one of the Under-Secretaries of State for the Environment on the Front Bench. I hope that he will be able to give us some elucidation on the points raised earlier with the same success as he had last time. The Solicitor-General was some- 1980 what shy when we were discussing Clause 86. He said that we should discuss certain matters on Clause 87. When we discussed Clause 87, some of the points raised were not answered by the Solicitor-General when he spoke to the Amendments. Therefore, I should be grateful if the Under-Secretary could answer some of the points which are of considerable concern to us.
We started with a situation in which we had a primary employer in a dispute with a trade union, and we put forward a number of cases concerning lines 36 and 37 of Clause 86 and the interpretation being placed on line 4 of Clause 87. We said that if pressure were put on an employer directly to intervene—[Interruption.] Does my hon. Friend wish to make a point?
§ Mr. Arthur Lewis
A remark was made by an hon. Member opposite and I wrongly replied—for which I apologise to my hon. Friend. The hon. Member opposite said that I should sit on the Opposition Front Bench to make up the sparse numbers. I said that it was not the Opposition Front Bench but the Government Front Bench which needed reinforcement, and it would be nice to see the Attorney-General, who has never put his nose in the Chamber during the discussions on this Bill.
§ Mr. McNamara
I would say that my hon. Friend would be an excellent person to be there, considering how it was that the Leader of the House was yesterday persuaded to reserve for the Order Paper those iniquitous proposals to be put on the Statute Book.
To come back to what is far more serious, for the benefit of the Under-Secretary of State I will repeat the situation. An employer has a strike on his hands. We come to the second employer. The second employer deliberately decides to go to the help of the first employer, who, for the purpose of this Clause, is not an extraneous party. We now come to the second situation. The second employer already has a contract existing with the first employer. A union brings pressure to bear on him not to fulfil his contract, because if he fulfils his contract the primary employer will not be damaged. Is that employer in that case, who is only normally fulfilling the contract, extraneous for this purpose, or not? 1981 The third situation which arises is where the employer has a contract with another employer who is still in dispute, and then the other employer takes on a further obligation under the existing contract to make good losses which the employer in dispute is having as a result of the dispute which is going on. If a union brings pressure to bear on that employer who has the existing contract and has taken on a further burden, and if that employer suffers damage on his existing contract by virtue of taking on the extra burden, is that an extraneous matter under the Clause?
Fourth, what happens if in normal commercial negotiations there is a dispute and another employer negotiates a fresh contract with the employer in dispute and starts to perform it? Is he thereby endamaged as an extraneous person if a union brings pressure to bear upon the employer in order to prevent the employer in dispute from being successful in his dispute?
There are four fairly easy matters, and I look forward to the hon. Gentleman's reply to them.
The next point I want to make—and it is important—is this. We had a statement by the Solicitor-General, when he was talking about action taken under this Clause in relation to action under Clause 86——
§ Mr. McNamara
With due respect to my hon. Friend, we have the attendance of the Under-Secretary, and we know how good he is in replying to these matters. I have no objection if the Minister is not here. He has not answered all our points before, and he has been in attendance for much of the debate and, therefore, I think it is quite fair that he should get some refreshment. It is not our intention to starve out the Government, though there are rumours that the Department of Health and Social Security is doing that with the families of strikers.
§ Mr. Dudley Smith
Will the hon. Member allow me to disabuse hon. Members about the situation? The hon. Member surely knows that my right hon. Friend the Secretary of State is involved with negotiations over the Post Office dispute. I will say no more than that. I think the Committee would at least ex- 1982 cuse him on that ground. The Solicitor-General, who will be replying to the debate, is having a very brief break, having sat here since 3.30 this afternoon.
§ Mr. McNamara
I am glad to know that the Secretary of State is not deliberately an extraneous party to the debate. I accept that he is engaged in serious negotiations, and I am glad his Department is working on conciliation, which it has failed to do for so long. I appreciate that the Solicitor-General has been here all day, and that he has attempted to answer our questions, but he has failed to do so.
The Solicitor-General said that if sympathetic action was taken in support of a strike by a registered trade union which was originally unofficial, that secondary action was unfair industrial practice. However, if the trade union executive made that strike official, the unfair industrial practice which constituted the secondary boycott became official, and the actions of those people were one minute regarded as unofficial and the next minute as official. But in a constitutional strike which later becomes unofficial, the secondary boycott is at first official and legitimate and then becomes unofficial. So the answer is a banana. What is the logic of this? The hon. Member for Nelson and Colne (Mr. Waddington) said that we had been talking midsummer madness about the Bill, but the Solicitor-General made confusion worse confounded by his attitude.
Under the Bill, action which is not official industrial action is unfair, and if unfair action is taken by a registered trade union, that union may be liable to pay damages of up to £100,000. But when a trade union which is not registered or a group of people take part in an action which may at one time be legal and become illegal, or at one time be illegal and become legal, where will the quantum of damages and the limitation be placed? We are making an ass of the law.
To take this one stage further, two unions may be involved in a dispute. For the sake of argument I assume that they are both registered and that the dispute is legal. One of those unions may recognise the dispute and the other may not. The workers may belong to two separate 1983 unions. If one group of workers belongs to the A.E.F., for example, and the A.E.F. recognises the strike, they are justified as a secondary industrial boycott. But say they are members of the Transport and General, which does not recognise the strike. They can say: "We support the A.E.F. which is an official strike but not the unofficial T.G.W.U. strike because if we do we shall be subject to the penalties of the Bill." It is a banana. Whichever way you go you slip on it.
§ Mr. McNamara
The Solicitor-General is making the law asinine and is in danger of bringing the whole of the law into disrepute. Law can so easily be destroyed by actions which are shown to be so class-motivated and against the working class. Weighting the scales in this way is not a new idea. I would like to read a quotation from the debate on the Trade Unions (No. 2) Bill on 30th May, 1911:It is not good for trade unions that they should be brought into contact with the courts, and it is not good for the courts. The courts hold justly a high and, I think, unequalled prominence in respect of the world in criminal cases, and in civil cases between man and man, no doubt, they deserve and command the respect and admiration of all classes in the community, but where class issues are involved, and where party issues are involved, it is impossible not to pretend that the courts command the same degree of general confidence. On the contrary, they do not, and a very large number of our population have been led to the opinion that they are, unconsciously no doubt, biassed."—[OFFICIAL REPORT, 30th May, 1911; Vol. 26, c. 1022.]
§ Mr. McNamara
The former Prime Minister had to some extent overcome the effect of his original sin.
Not only are these Clauses basically unfair, not only do they hit at the strong, but they hit those in small institutions who cannot look towards a greater institution to protect them. More than this they show the bias contained in the Bill.
1984 Employers can pay into a strike fund to indemnify themselves against a strike but if a trade union wants to help a strike fund it will be punished. What happens if trade unions say that they will have a general strike fund to be used at their discretion in industrial disputes? Will this be caught by the Bill.
I see the hon. Member for Bridgwater (Mr. Tom King) shaking his head. Does he wish to say something?
§ Mr. McNamara
If the hon. Gentleman looks at Clause 86 he will see that the provisions for a strike will have to be drawn very carefully. If there is a collection, like the whip-round we had for the Post Office workers or in support of a strike, then the people doing that are likely to be caught by the Bill. I ask the Minister to look at these problems and give me the answers. We want to know the Government's intentions.
§ Mr. Ray Mawby (Totnes)
The hon. Member for Kingston upon Hull, North (Mr. McNamara) described this problem as "a banana". But it appeared to me that the greater part of his speech was concerned with Clause 86. In Clause 87 the secondary boycott applies to both fair and unfair actions, whereas there is a distinction in Clause 86.
§ Mr. McNamara
Clauses 86 and 87 are interlinked. Though hon. Members on this side tried to raise these points when we were discussing Clause 86, the Solicitor-General said that we would be dealing with them when we came to Clause 87. In view of that, though some of us wanted to speak on Clause 86, we held our fire so that we could raise these matters on Clause 87. That is the point.
§ Mr. Mawby
I make no complaint about it, because the hon. Gentleman made some fair points. I wish merely to make it clear that it is Clause 86, and not 87, which differentiates between a fair and an unfair dispute.
We have been discussing whether the words in the Clause will be construed in the way in which this Committee would wish. In other words, this is a matter, first, of the intention, and then of the wording necessary to ensure that our intention is put into effect. My hon. and 1985 learned Friend has assured us that he will look closely at several parts of the Clause to which his attention has been drawn. In view of that, I am inclined to leave the lawyers to argue about the wording, and I am no lawyer.
As for the intention, it was interesting to hear the hon. Member for Liverpool, Walton (Mr. Heifer) cite the case of the Imperial Hotel, Torquay, versus the Transport and General Workers' Union. He described it as a legal ruling. However, in my part of the world it was a little more than a decision of the court, because it affected the future livelihoods of many people.
As my hon. and learned Friend said, Clause 118 will prevent the courts entertaining another case of this sort, and, if they do, they will be unable to reach the same conclusion. For that reason, it is important to know what the case involved.
It was about an inter-union dispute. The Municipal and General Workers' Union had organised catering workers in Torquay for many years. The Transport and General Workers' Union came along——
§ Mr. Mawby
We have to remember what we have been told by hon. Members opposite so often. They maintain that the voluntary solution of these problems can be safely left to the T.U.C. What happened in this case was that not only was the T. and G.W.U. in dispute with a number of hotels, but it operated a secondary boycott against the Imperial Hotel and also against a number of smaller hotels which had nothing to do with the dispute. No employer could find a solution in any event, because it was an inter-union dispute and had to be resolved by the unions concerned.
§ Mr. Heffer
I am sure that the hon. Gentleman will agree that I was citing a legal judgment and not discussing the rights and wrongs of the dispute. Will he also agree that some employers will make agreements with those whom they regard as tame unions, and then, when another union secures a majority of members, they argue that their agreement is with the tame union, even though it has the smaller membership?
§ Mr. Mawby
I do not think that any members of the M.G.W.U. present tonight would be inclined to agree with the hon. Gentleman's reference to its being a tame union. [Interruption.] Is it a tame union? This was the inference. If not. I apologise.
I have known of staff associations, for instance, which have been and would be the type of organisation to which one would refer as "tame" and to which employers can say, "There is no need for us to recognise you as another bona fide union because we have one." I accept that point.
To return to my point, the hon. Gentleman was either suggesting or inferring that the M.G.W.U. was a tame union. [Interruption.] If not, we can forget about that particular argument.
There were two bona fide T.U.C. affiliated unions in dispute with each other. The M.G.W.U. had had recognition agreements with the hoteliers of Torquay over many years. Then the Transport and General Workers' Union walked in and declared that it would organise Torquay. The Transport and General Workers' Union has a perfect right——
§ Mr. Mawby
—to be in dispute with a particular employer, and it has its own ways and means of pursuing that matter. But many hoteliers in Torquay not involved in that dispute in any way had their businesses damaged because the Transport and General Workers' Union operated a secondary boycott by preventing fuel oil and other supplies going to other hotels. In common decency——
§ Mr. McNamara rose——
§ Mr. Mawby
We have been reminded that under Clause 118 the power of the 1987 civil court to deal with these matters is to be restricted, because there will be other ways to deal with them. Had the Imperial Hotel not had the funds to entertain a court case—most of the other hotels would probably not have taken the risk—I question whether it would have got to court at all. Yet many hoteliers who were not involved in the primary dispute were put in extreme danger.
The Clause will at least cover that point. A small employer will not have to ask the civil court to make a decision and, because of different legal opinions and decisions in various cases, not know until the case has been decided how much expense he has incurred in trying to pursue his protection, as was proved in the Imperial Hotel case. There could be another case which could go the other way, and Clause 118 takes away the right to take it up in a civil court. This is a much more sensible way of doing it.
The principle of the Clause has been explained time and time again. Where some other employer is closely connected, either as a party to the dispute or as having taken action in material support of the primary party, the Clause will not apply. There would be complete justification for a secondary boycott being operated in that other company because it was materially connected with the original dispute.
On the other hand, where one has organisations, companies, and small businesses which have no connection whatever with the dispute and which can do nothing about it because it is none of their business, unless the Clause is there they could be damaged and even put out of business by a secondary boycott, although they could do nothing about the dispute. Some rewording will be needed, but the principle of the Clause is correct in protecting those not materially connected with a dispute from a secondary boycott.
My hon. and learned Friend has given an undertaking that we can look at this again on Report, but the principle is good and it will prevent some unfair damage in certain circumstances.
§ Mr. Orme
The hon. Member for Totnes (Mr. Mawby) set off on a long road in explanation of the Torquay case, but gave his case away because when it went to law the Transport and General 1988 Workers' Union lost the case. Why, then, should he want to change the law by the Bill if such cases are already trapped by existing law?
§ Mr. Orme
The hon. Member might tell us what expense the new Industrial Courts will cost the country with the salaries of High Court judges and the paraphernalia which will surround them.
The question of secondary boycott and blacking of work is germane to industrial solidarity in this country. My right hon. Friend the Member for Blackburn (Mrs. Castle) and my hon. Friend the Member for Liverpool, Walton (Mr. Heller) earlier said that this was a vital industrial activity which was not practised to extreme in this country, but there are occasions when it is necessary.
The Roberts Arundel case was given as an instance. It was a classic case. That was an engineering firm producing engineering equipment for the cotton industry. It employed skilled engineers. The interesting thing was that the firm would not become a member of the Engineering Employers' Federation. The voluntary code of conduct that exists between the trade unions and the Federation would have prevented the very things that happened at Roberts Arundel. It would have preserved the basic right of trade union recognition and basic negotiating rights. These are agreed by established firms as being fundamental rights that operate throughout the engineering industry.
Secondary boycotts arise in most cases with firms that are non-federated. They are normally small firms; very often the employers are of the militant type, who take an individualistic view of trade unions. They adopt a 19th century attitude. In consequence, disputes often arise.
In the South-West the workers in an engineering firm recently went on strike for about nine months—not on the question of trade union recognition but as a result of a wages case. My union paid the strike pay for nine months, and in the end had to impose a levy on its members. It circulated all the branches of my organisation asking that all the work coming from that firm should not be handled—in other words, that it should be blacked. There was no calling out of 1989 members of the union in the other firms. That is why the Solicitor-General has worded the Bill in such a way as to catch action other than strike action. The members of the union were not called out and were not instructed not to handle the sub-contract work; they took their own decision.
Apparently it is all right for an employer to send out his work for subcontract in case of a dispute; he is covered by the law. But if a trade union tries to prevent that sub-contract work being done it is acting outside the terms of the Bill.
The hon. Member for Peterborough (Sir Harmar Nicholls) mentioned the protection that exists for employers' indemnity funds in Clause 87(3). It is an affront to the trade union movement that in the very Clause that takes away some of the basic rights of trade unions and penalises them for taking secondary action the employers are having their position strengthened. It is incredible.
There is no defence for that sort of thing. Nobody objects to an employer having an indemnity fund, like a trade union's strike fund, but if the hon. Member for Peterborough and the Solicitor-General think that the provisions of the Clause represent an evening out of the imbalance between unions and employers their idea of natural justice is different from that of my hon. Friends and me.
I turn to the question of preventing secondary boycotts, and the effect that that has had in the United States. The 1947 Taft-Hartley Act was found to be not strong enough, so the Landrum-Griffin Amendment was brought in. In November, 1969, I was in the United States—in California—when the General Electric Company strike was on at Los Angeles and San Francisco. I visited some of the firms involved and talked to the men on the picket lines. I found that an official dispute was taking place throughout the whole of the General Electric Company's factories in the United States, involving about 148,000 employees, who were out for about six months. They were forbidden to ask for support from other unions, such as the Teamsters, who were bringing in supplies. The President of the Teamsters told me that they were liable to a fine of about 50,000 dollars a. day if they told their members not to take goods in. It 1990 was far stricter even than that; if any of his members acted unilaterally, the union was still responsible.
Ironically, the effect of this was to extend the length of the dispute. We all know the figures for the length of the official disputes in the U.S.A., and one of the reasons is that, because of the rigours of the law, unions in a dispute cannot take secondary action. This tends to solidify the situation: the employers sit it out and the unions have to do the same.
We are always being told about the detrimental effect of strikes on the British economy. The British economy. unlike the American, cannot sit out strikes. If we want to rejig our union structure so that there are frontal industrial battles lasting for months, not weeks, in the central heavy industries, this is what the legally binding contracts and procedure agreements tend to bring. They bring rigidity, because there can be no movement throughout the period of the deal in question.
§ Mr. Adam Butler
The hon. Member makes this comparison between the position in the United States and the position here. In the automobile industry in the United States, there are, at the end of probably a three-year agreement, these long strikes, which may run, normally, for six or eight weeks—perhaps longer, but that is the normal length. Our own automobile industry lost in 1970 very roughly 25 per cent. of production through strikes. That is 10 weeks in one year. I suggest that six to eight weeks in every three years is preferable.
§ Mr. Orme
I do not have the comparative figures here now, but hon. Members recognise that the American strike record last year was about three or four times as bad as our own. The disputes now in the United States are by unions which are acting illegally under American law—by school teachers, refuse collectors, policemen and so on. The hon Gentleman can see from the comparative figures what I am getting at.
§ Mr. Heffer
In his very interesting booklet, "Greener Grass", on page 47. Mr. Lowry says:If anything that I have written in this report should give the impression that unconstitutional strikes do not take place in the U.S.A., this must be corrected. Wild cat 1991 strikes, as they are called, do take place, and are becoming a cause of increasing concern.So, despite all the legal paraphernalia, they still take place and still cause concern.
§ 11.15 p.m.
§ Mr. Orme
My hon. Friend underlines what I have said by calling in aid Mr. Lowry, who has wide experience in industrial relations on the employers' side.
What would be the position if secondary action were to be taken by a registered or an unregistered trade union—let us say it was my union, the A.E.U.W.—circularising its branches asking members to black work done at a certain firm—for example, Fine Tubes? This would be the case of a firm producing a commodity and having sub-contractors which were not directly concerned in the dispute.
What would be the position if my union had a ballot of members in a district asking them to contribute money with a view to supplementing the strike pay of members on strike? Would that be construed as a secondary act, and would the union be liable? What would be the position if a multi-national company or a large combine with plants in different parts of Great Britain and abroad decided, because of a dispute, to transfer work to a plant abroad? Fords decided to transfer work from a plant in Britain to a plant at Ghent. The workers took action, because they did not want the work to go to Ghent, as the matter had not been cleared properly in the British plant. They warned their brethren in Europe to this effect.
The Solicitor-General usually bristles when we mention Professor Wedderburn.
§ Sir Harmar Nicholls
My hon. and learned Friend has only said that Professor Wedderburn is not the last word on everything. The professor is an authority, but by hon. Members opposite he is quoted as though he is a paragon.
§ Mr. Orme
He is a good authority. His analysis of the situation is as good as that which can be introduced on the Bill. The Solicitor-General does not like the professor's politics. We do not like the Solicitor-General's politics, but we do not question his right to be Solicitor-General, nor do we assert that he is not an adequate or qualified lawyer. 1992 Some of the lawyers opposite seem to think that Professor Wedderburn has escaped from the trap and is not playing the game. We pray the professor in aid because he is a most valuable and outstanding authority on American and British law.
Who is to explain the meaning of Clauses 85 to 87 to rank and file trade unionists and shop stewards? The Solicitor-General would not be a good person to send on that errand. Much more will be heard about these Clauses, because people will be trapped by them when seeking to exercise their fundamental trade union rights. These Clauses will probably be some of the first Clauses which will impinge upon the trade union movement. The unions should study these Clauses in great detail. We can merely vote against this matter.
§ Sir D. Walker-Smith
I intervene only to make a brief comment on the doctrine or principle of interference, which has had some rough treatment during the debate, and to take up two observations which fell from the hon. Member for Liverpool, Walton (Mr. Heifer) in what I freely concede was a carefully considered opening speech.
The subsection dealing with the matter of interference is comparatively friendless, and I understand that my hon. and learned Friend the Solicitor-General has expressed himself as not content with the drafting. For my part, having looked at it, I find the drafting wide and somewhat imprecise. One hon. Gentleman earlier quoted an observation of Sir Winston Churchill in his Liberal days. I can express my view of the drafting in terms of an observation of Sir Winston Churchill in his Conservative days: I can without difficulty confine my enthusiasm within the bounds of decorum.
But the criticism has gone a good deal wider than the drafting. It has gone to the principle, and I wish now to point out that this principle has a better background of respectability than might have been thought from some of the comments made.
The hon. Member for Walton quoted the passage in Lord Denning's judgment in the case of Torquay Hotel Company v. Cousins, in which he said:The time has come when the principle should be further extended to cover deliberate and direct interference with the execution of a contract without that causing any breach".1993 The hon. Gentleman did not like those last words, but it is fair to say that the reason for their incorporation was that there was in the contract for the delivery of oil between the Imperial Hotel and Esso an exception clause, a force majeure clause, which freed Esso from liability for non-fulfilment of contract to supply due to labour dispute.
It follows, therefore, where there is a force majeure clause of that kind that, however great or gross the interference, there can never be any breach of contract. I imagine that that is the reason why Lord Denning expressed himself in that way.
If it had been a lawyer who had said, "We must look only at whether there was a breach of contract between the parties," we should have come under instant attack from hon. Members opposite, who would have said, "You must not look at this just within the narrow confines of commercial contract. That shows your lawyer-like predilection for these things." But I am turning the tables on the hon. Gentleman. It is he who, at any rate by implication, is now saying that we must look at it in that narrow form, and it is I who, though a lawyer, am saying that we must not look at it merely like that but must look at it in its broad social context. That, I think, was what Lord Denning was doing.
The other observation that the hon. Gentleman made was that the principle of interference was, in effect, a revolutionary departure in the law relating to these matters.
§ Mr. Rose rose——
§ Sir D. Walker-Smith
I realise that when the hon. Gentleman made that observation it was a case of "The hand is the hand of Esau, but the voice is the voice of Jacob", because I realise that he was being prompted. Nevertheless, he was doing it very well.
§ Mr. Rose
The right hon. and learned Gentleman is nothing if not amusing. Does he agree that this emphasises the point being made throughout on this side that the implication of giving such wide powers to the judiciary as are being given to what is, in effect, a new industrial branch of the High Court is that the judiciary will be able to make law, just as Lord Denning made law in that case by extending the concept of a breach of contract 1994 to the concept of interference with contract?
§ Sir D. Walker-Smith
I think not. The hon. Gentleman is really inviting me to anticipate the content of the next Clause, which, unhappily, we probably shall not be able to discuss. I should be out of order to do so. I would only say in parenthesis that this is all very reminiscent to me. I heard all the same arguments about these matters when I stood night after night at the Dispatch Box 14 or 15 years ago with part-Ministerial responsibility for the passage of the Restrictive Trade Practices Act, when we set up the Restrictive Practices Court. Not only did we win in the Division Lobbies, which is important; not only did we win in argument, which is more important; but, most important of all, we won by the test of time and the practical experience of the workings of that Court. Therefore, I must reject the hon. Gentleman's argument on that.
§ Mr. Heffer
I should like to set the record straight about my quotation from Lord Denning. My hon. Friend the Member for Manchester, Blackley (Mr. Rose) had no knowledge that I would raise that point.
§ Sir D. Walker-Smith
In that case the hon. Gentleman did even better than we thought. When the long days and laborious nights of this Committee stage are over, it is not too late for him to read for the Bar. If he joins the Middle Temple and wants a Master of the Bench to sponsor his application and testify to his credentials, I should be only too happy to oblige.
The principle of interference has a longer ancestry than perhaps we would think from the hon. Gentleman's remark about its being a revolutionary departure. The original concept of inducement to break a contract goes back about 120 years to the case of Lumley v. Gye. If the concept of interference does not go back so far, at any rate the words are found in the celebrated trade union case of Quinn v. Leathem at the turn of the century. In that case the principle was that each of the parties has a right to have the contractual relations with the other duly observed. The judgment there contained the following passage:It is a violation of legal rights to interfere with contractual relations recognised by law if there be no sufficient justification for interference.1995 It is right and proper to say, in explanation of a very good contemporary judge, that it is against that background that Lord Denning made his dictum. But, of course, he did not suggest that interference should be written into the law simply in that general, abstract and undefined term. On the contrary, as we would expect of him, he defined quite precisely the requisites that there must be to constitute interference. There must be, first, a preventing or hindering; secondly, the interference must be deliberate; and, thirdly, the, interference must be direct.
These matters do not seem to have been written into the Clause as it stands, and it may be for that reason that my hon. and learned Friend was dissatisfied with the drafting. But I feel that it is right that the Committee should have in mind that the concept of itself in the most strictly defined and more limited form is a respectable concept, and it may well be that, if it is defined by reference to these essential ingredients to which Lord Denning referred, we can, as the House of Commons, properly give statutory effect to the gist of what he said in the Torquay case—that the common law would be seriously deficient if it did not condemn such interference.
It is the business of Parliament to buttress and reinforce the common law by Statute when it is so required, and that is what, when put into proper form, this Clause, as I see it, seeks to do.
§ [Sir ROBERT GRANT-FERRIS in the Chair]
§ Mr. Eadie
I cannot hope to emulate the right hon. and learned Member for Hertfordshire, East (Sir D. Walker-Smith) because, as must be obvious, I am not a lawyer. But at one point in his charming and witty speech he talked about being "not content", and I thought that perhaps he had some nostalgia for another place. Some of us exercised a self-denying ordinance on the Amendments to this Clause, and I intend my remarks on the Clause to be brief so as to give other hon. Members a chance to take part in the debate.
The Solicitor-General said earlier that he had been persuaded to some extent 1996 that Clause 87 was unsatisfactory in its drafting. However, I have since become somewhat worried in that perhaps some of his hon. Friends are beginning to persuade him that the Clause does not, after all, need so much redrafting. I hope that he will confirm that he will reconsider the drafting. Indeed, I hope that he will eradicate the Clause altogether.
If Clause 87 is implemented, many good, God-fearing, decent people will probably be in dispute and in violation of the law for the rest of their lives. I want to give a simple example. Sympathy strikes have been mentioned. I have referred before to my experience in the mining industry. One can get sympathy strikes of such a nature that if one were to suggest to the men that they were in violation or in dispute with the law, one would arouse a great deal of ire and would. in fact, probably cause more industrial disputes.
There was an old tradition in the mining industry whereby whenever a man was killed the pit was idle for that day. This was done for two reasons. The first was that, with the daily toll in the mines, a death was something which people—not only the miners—were distressed about. Secondly, the miners believed that it was the only way in which they could make their protest and teach management to make sure that conditions were safe.
But they withdrew their labour at a cost to themselves. As time went on, not the management but the union tried to alter that. We tried to persuade miners that we would build up a fund, that there would be contributions from management and union to ensure that dependants received additional compensation. I speak from vivid experience, for my father was killed in the pit.
It was difficult to implement that scheme. Sometimes we can manage to persuade the men, but lawyers never will. I have had the experience of going to the pit and meeting men walking off the night shift saying that they were going home because John Smith or John Brown had been killed, that they had been saying for weeks that the area was unsafe. They are not always justified, but they go home as a protest.
The Solicitor-General may institute fines and penalties on men going home, 1997 but they fine and penalise themselves by doing so, for, because of the bonus shift system, they lose more than one day's pay. But they do so as a token of their respect to the individual who has been killed and as a protest against unsafe working conditions. No lawyer in the House of Commons could solve that problem, nor compel the miners to work in a section in which a man has been killed if they feel that they will not work, not even if they are penalised, put in gaol and lose their furniture.
§ Mr. Tom King
I appreciate the hon. Member's deep feelings on this matter, but it is not lawyers who will do the compelling but the attitude of the employer. Has he any reason to expect a different attitude?
§ Mr. Eadie
I do not want to be distracted from my theme. The hon. Member must have heard the contributions of eminent legal gentlemen who suggest that we can solve the problem in a context of legality, within a legal framework. I assume that when he was fighting the General Election the hon. Member himself spoke about a legal framework for industrial relations. I am saying that industrial relations is a human problem which cannot be dealt with in a legal framework.
I should like to allow time for more hon. Members to speak and I shall curtail what I would have said about the sympathy strike. I agree with what my hon. Friend the Member for Salford, West (Mr. Orme) said about these disputes. In the mining industry the men take the view, "If you injure one, you injure all." We have had many unofficial disputes, and there have been many in which I have tried to persuade men to go back to work and try to negotiate. I was an official at an unofficial strike. I defend the right to go on unofficial strike, for sometimes there is an increase in productivity as a result and sometimes there is an improvement in the relationship between management and men.
Under this Clause, managements will be able to indemnify themselves, but if a pit is on strike and the families of the men are suffering, miners in that part of the coalfield will be in violation of the law if they take up a collection for those families. This is a tradition. We have 1998 had it for 100 years. Even if they are 100 per cent. wrong, miners will not allow men, women and children to suffer hardship because of money problems.
If the Government put this Clause into operation, they will put many decent, God-fearing people in such a position that they will violate the law. We were elected to uphold parliamentary democracy and to represent the people. It will be a serious violation of parliamentary democracy if we pass the Clause, never mind the Bill, and place people in such a position that, through no fault of their own, they are in breach of the law.
§ The Solicitor-General
I acknowledge the obvious sincerity and force with which the hon. Member for Midlothian (Mr. Eadie) addressed the Committee. I underline what I have tried to make clear throughout our proceedings. We are not seeking to introduce a law to regulate or transform human relationships in an unrealistic way or attempting to deal with the human and real problems about which the hon. Gentleman was talking. There is no suggestion of remedies being brought to bear against individuals leaving their place of work in the circumstances which the hon. Gentleman described. There is no possibility of remedies being sought or invoked against people leaving their place of work or being persuaded to do so on grounds of safety. It is inconceivable that any lawyer will advise under these provisions that proceedings should be commenced against people leaving the coal face in the circumstances described by the hon. Member. It is not our intention, it is not a possibility and it is not the objective.
Hon. Members on both sides of the Committee fully appreciate the explosive conditions in which industrial disputes can sometimes occur, provoked by misconduct or incompetence by management or by dangerous or adverse conditions. The Bill is not designed to check, and will not have the effect of checking, the ordinary right of industrial protest. But we cannot accept the way in which the hon. Member for Liverpool, Walton (Mr. Heller) invited the Committee to approach the problem. He put the matter as widely as this: the right to strike in any form of dispute and to call 1999 any form of strike is basic and fundamental and cannot be tampered with. That is an unrealistic and, I suggest, unacceptable proposition in this day and age.
We live in a country in which the balance of industrial bargaining power is not so adverse to organised labour or to workers as it was 50 or 60 years ago when the law first took its present form. We live in a society in which people are more and more interrelated, and the harm which can be done by precipitate and unnecessary calling of industrial action outweighs the advantage, which can be secured for anyone concerned in it.
We suggest that it is reasonable to see in what ways the balance needs to be altered. The Committee deceives itself if it does not acknowledge that in almost every other sophisticated modern industrialised society the right to call strikes does not exist in such an unrestrained and unrestricted form as it does in this country.
§ The Solicitor-General
I have not very much time. Whatever hon. Members opposite may say, I am not seeking to advance a system of industrial relations comparable to that which prevails east of the Iron Curtain. [An HON. MEMBER: "What about Poland?] The hon. Gentleman talks about Poland. [HON. MEMBERS: "What about Spain and Greece?"] Hon. Members opposite must try to live in the real world. Time and again in these proceedings we have had fanciful speeches suggesting that we are taking the first step towards the corporate State. One does not even understand what this concept with which we are being charged is meant to mean.
All we are doing is looking round at almost every other comparable country facing the same kind of industrial problems in the second half of the twentieth century and recognising that balances and checks upon the freedom to induce industrial action are different almost everywhere else and that we are getting further and further behind the field in the industrial race. It is for that reason that we introduce these proposals here.
2000 In the context of this Clause my hon. and learned Friend the Member for Southport (Mr. Percival) and my hon. Friend the Member for Totnes (Mr. Mawby) both gave a very clear exposition of the basic object of the Clause, and the description of the Torquay case indicated why it is necessary to get away from the maze through which the Torquay hotel proprietors were able to steer themselves. I am very grateful to my right hon. and learned Friend the Member for Hertfordshire, East (Sir D. Walker-Smith) for his own very clear exposition of the object of the Clause and his explanation of the words of Lord Denning which the hon. Member for Liverpool, Walton quoted.
The intention here is to provide a remedy in respect of procuring deliberately and directly a breach of a contract or deliberately and directly interfering with the execution of a contract. That is the objective, and there is no novelty in trying to achieve that.
My hon. and learned Friend the Member for Southport asked me to confirm that it was not intended to restrict strikes designed to prevent entry into a contract. That is not the intention. He invited me to look at the effect of calling strikes intended to bring about the termination of a terminable contract. I will look at that. It is obviously an example taken from the Torquay hotel case. He commented—I have taken a note of what he said—on possible misunderstanding of inclusion of the words "associated employers". Again, the key to the inclusion of those words is the proposition that somebody shall not be taken to be supporting by reason only of the fact that he is an associated employer by reason only of the fact that he is a member of the employers' federation.
§ Mr. Ronald King Murray (Edinburgh, Leith)
Then can the hon. and learned Gentleman explain to the Committee why in Clause 86, when dealing with workers, it is "aiding and abetting" but that when dealing with the employers' side, in subsection (2)(b) of this Clause, it is thathe has not … taken any action in material support of a partyto the industrial dispute?
§ The Solicitor-General
Because I suggest to the Committee that taking any 2001 action in material support is a much wider concept than the rather narrower proposition of aiding and abetting, and the employer who has taken any action in material support of another employer party is immediately in jeopardy in this situation. That is certainly the way in which I read it.
The comparison which might also be made, and has been made by some hon. Members, is the fact that the employer is not to be regarded as supporting by reason only of the fact that he is contributing to a general strike insurance fund, and the parallel to that is that the worker or organisation which is contributing ordinary membership dues whether to the organisation itself or to a federation of workers' organisations is not for that reason supporting or giving assistance to any particular strike.
I was asked about the extent to which a strike levy amongst the workpeople, either in a given town or in a given group of industries, is raising money to produce funds for workpeople elsewhere on strike. That would not be indirect or supporting action because it would not be action taken to call a strike because it was intended to aid and abet a strike which was unfair. It would only be making money available to people taking part in a strike and would not in itself give rise to any difficulties at all.
I was asked a number of questions about the Roberts Arundel case, and I hope what I say will not be misunderstood. That case has a long and particularly complicated factual history, with an emotive background, and I will not answer the questions with specific reference to that case. It is right to say in that kind of case that new recognition remedies would provide an alternative earlier remedy. There would be no restraint on any official strike which was subsequently called about the terms which the employer was offering, nor would there be any difficulty about calling a strike designed to persuade suppliers not to renew their contracts, nor on striking against people taking material action in support of the original employing company—
§ The Solicitor-General
—I am coming to that next—nor on inducing action designed to prevent any new, fresh or further sub-contracting or giving material support to action designed to secure the breach of pre-existing agreements. So sub-contractors would be within the scope of the Clause. I hope that answers the hon. Member's point.
If I may come back to the more general point—
§ Mr. Harold Walker
Will the hon. and learned Gentleman deal with the point raised by my right hon. Friend about what seems to us to be the exceptional position of employers in relation to strike indemnity funds and the allowability of contributions for tax purposes?
§ The Solicitor-General
I have already explained that contributions to a strike indemnity fund of a general kind are in the same category as contributions to a union's strike fund not directed to any particular strike. They are in exactly the same position.
On the question of tax liability, I cannot add anything to what my hon. Friend the Financial Secretary said in the answer he quoted. It depends no doubt on the structure and construction of the fund of the association or body. Far be it from me to challenge what the Financial Secretary said about that.
To come back to the central point with which the hon. Member for Liverpool, Walton began, he suggested that we are here out-Taft-Hartleying Taft-Hartley. Not so. The points made by the hon. Member for Salford, West (Mr. Orme) demonstrated how much further American legislation goes, so he says, in attempting to restrain secondary boycotts. It deals specifically with refusal to handle, refusal to deal with, refusal to deliver-blacking is very generally defined. The hon. Gentleman quoted the case of the long General Electric strike; but there is something odd about the criticism being made that we are going unduly far when, on the observations made by hon. Members opposite, it seems that we are not going anything like as far down that particular road, let alone many other roads.
We come back to the point that there is here a legitimate objective. The hon. and learned Member for Montgomery 2003 (Mr. Hooson) agreed that it was a legitimate objective, and invited us, as we shall, to look again at the formulation of the Clause. The hon. Member for Walton intervened to quote a sentence or two from Mr. Pat Lowry's book about the situation in the United States. He quoted the first two sentences of the paragraph which I am looking at now which sought to suggest that wild-cat and unconstitutional strikes are a problem in the United States, whatever system they may have there. He did not quote the immediately preceding sentences:The great majority of strikes are constitutional and tend to be lengthy. What is more important, they are a contingency which can be precisely forecast in terms of time and, equally important, they can be planned against with great care. The impact of a strike of this character is therefore much less severe than the more frequent unconstitutional strikes which are so typical of the British situation.It is precisely for that reason, against that diagnosis, that I invite the Committee to support the Clause.
§ Mr. McNamara
On a point of order. Sir Robert. You will remember that when we were discussing Clause 86 you ruled that we could make a reference to Clause 87 but we should not go into details. On the basis of that ruling many of us who wished to raise points on Clauses 86 and 87, because we felt that they were linked, waited until the discussion on Clause 87. When Clause 87 came I was fortunate enough to catch your eye. The Solicitor-General said that he would answer questions on Clause 87 when he came to deal with it. He was not in the Chamber at the time, and I understand that, because he had been here for a long time, and, like the rest of us, needed some refreshment. However, I gave him four specific cases on which I asked for his legal opinion. I asked the Under-Secretary to take them down. I gave him a further number of cases on Clause 86 and raised points about a strike fund. At no time have we had an answer to these points from the Solicitor-General. With respect, you said that on Clause 86 we could refer to Clause 87 in passing. We did this, and we had an undertaking from the Solicitor-General that he would answer the points on Clause 87, but we have not had this.
§ The Chairman
I have the hon. Gentleman's point. I am able to say that 2004 it is not a point of order, because I cannot control exactly what the hon. and learned Gentleman says. All that I can do is to say what would be in order and what would not. There is nothing that the Chair can do to assist the hon. Gentleman. I cannot compel the Solicitor-General to make his speech in a certain way. That is not to say that I do not have sympathy with the hon. Gentleman. There is nothing I can do.
§ Mr Rose
If the Solicitor-General refuses to answer my hon. Friend's questions, perhaps he will, at even this late stage, answer some questions. Would he say whether, in his view, under this Clause an ordinary supplier who knows that his supplies are bound to break a strike by giving material support will come under Clause 87(2)? Will he get up and tell us whether this Clause reverses the decision in Thompson and Deakin? Will he give his opinion? He has just got time to do that in spite of the guillotine.
§ The Solicitor-General
The question of an ordinary supplier, looked at in the context of Clause 87(2), depends on the words of Clause 87(2)(b). If the ordinary supplier is supplying ordinary supplies in the course of his normal trading relationship, then he has not, in contemplation or furtherance of a dispute, taken action in material support of the party to it. If he changes his trading pattern and begins doing work on a contracting-out basis or a sub-contracting basis, then he allies himself with the primary employer and immediately becomes exposed and cannot complain of strike action taken against him. The person who is following the normal pattern of trading is entitled to stand apart from the issues unless he takes some action to make himself a part of it.
§ Mr. Heffer
Will the hon. and learned Gentleman clarify this a little further? It really is a most fundamental point. What he is saying underlines my point. If there is a long-term contract and the contractor has the contract before the dispute takes place——
§ It being Twelve o'clock, The CHAIRMAN proceeded, pursuant to Standing Order No. 43 (Business Committee) and the Orders [25th and 27th January], to put forthwith the Question already proposed from the Chair.
§ Question put, That the Clause stand stand part of the Bill:—
§ The Committee divided: Ayes 284, Noes 255.
§ [For Division List 167 see col. 2023.]
§ Clause 87 ordered to stand part of the Bill.
§ The CHAIRMAN then proceeded to put forthwith the Questions necessary for the disposal of the Business to be concluded at Twelve o'clock.