HC Deb 23 February 1971 vol 812 cc444-70
Mr. Rose

I beg to move Amendment No. 866, in page 82, line 37, leave out 'in tort'.

The Temporary Chairman

With this Amendment it will be convenient if we also discuss Amendment No. 867, in page 83, line 3, leave out 'in tort'. Amendment No. 868, in line 9, leave out 'in tort', and Amendment No. 869, in line 12, leave out 'in tort'.

Mr. Rose

The first, second and third of these Amendments have the intention of reinstating in substance protection of a type similar to that extended by Section 3 of the 1906 Trade Disputes Act. Earlier we debated rather exhaustively Clauses 85 and 87. This Amendment underlines what has happened during the passage of the Bill, namely, that we have by back-door stealth, brought about the destruction of such protection as remained under the 1906 Act simply by the introduction of this alien new concept of an unfair industrial practice and the provisions of Clauses 85 and 87.

These provisions virtually take away the right to strike in a large number of cases, for example, the secondary boycott and the sympathy strike, where the original strike was called without the sanction of the union even if it was subsequently endorsed by the union. At the same time as this new concept has been introduced, the Solicitor-General says that he is keeping the law of tort as an additional weapon in his armoury against the trade unions. My hon. Friend the Member for Norwood (Mr. John Fraser) and I have drawn attention to the problems which will arise as a result of overlapping jurisdiction as between torts, on the one hand, and unfair industrial practices, on the other.

Clauses 6 and 85 deal with individuals inducing a breach and virtually take away protection from those individuals, be they trade union leaders, people commenting on television or political commentators. Because the Solicitor-General refused to answer this question at about a minute to midnight last Wednesday, there is a strong suspicion that Clause 87 overrules Thompson v. Deakin. The decision in Rookes v. Barnard has been reinstated through Clause 6 and Clauses 85 to 87 and the Trade Disputes Act, 1965, has been swept away.

The purpose of the Amendment is merely to underline that by this backdoor method we have not only the refusal of the protection offered by Section 3 of the Trade Disputes Act, but additional hazards for the trade union movement for those involved in trade disputes. By leaving out the words "in tort", those facing an action would face an action only in one court and for one offence, whereas by retaining both concepts the Solicitor-General has the trade union movement both ways: either it goes before the court as defendants because of an unfair industrial action, or it goes before the other court because it is guilty, or allegedly guilty, by reason of a tort.

We wish to extend the protection which can be given under the Clause in only a very modest way to get back to something like the position of 1906. We do not think that this is a particularly large or difficult demand to meet. This is a very modest Amendment to reinstate a certain degree of protection, in tort, bearing in mind that under Clauses 85 to 87 an intolerable burden has been imposed upon the trade union movement by virtually outlawing in a large area of industrial action the right to strike.

The Solicitor-General

There may be a misunderstanding about the object of the Amendment, but the intention of Clause 118, including the words which the Amendment seeks to leave out, is to preserve the exclusion from the ordinary courts of actions which were excluded from them by Section 3 of the 1906 Act and other statutory provisions. The intention is to make it clear that proceedings in respect of industrial relations complaints about unfair industrial practices can be brought only before the Industrial Relations Court. That is the object of the exercise. The Bill identifies a number of unfair industrial practices and provides remedies for them which are to be granted and considered in the Industrial Relations Court. The object of the exercise is to give the Industrial Relations Court exclusive jurisdiction over such matters.

The purpose of Clause 118 is not to expose people concerned with industrial relations to an alternative or additional liability in tort but expressly to provide that matters which could be actionable in the Industrial Relations Court shall not be actionable in tort in the ordinary courts. It is to make plain that the exclusion of the ordinary courts is to be effective over a wider field than it has been under the 1906 Act up to now. That is why, for example, Clause 118(1)(a) drops the familiar words "of employment" from Section 3 of the 1906 Act.

The Clause as now formulated achieves the object of protecting people concerned with industrial relations from proceedings in the ordinary courts rather further than has been the case up to now, and preserves our intention, with which there is disagreement on the other side of the Committee, to give to Industrial Courts exclusive jurisdiction in respect of these industrial matters.

Mr. Orme

This is reversing 64 years of law which has stood since the 1906 Act, arising out of the Taff Vale judgment. Will cases such as the Taff Vale case be taken to the Industrial Court and not to the ordinary court?

The Solicitor-General

The Taff Vale judgment involved two concepts. One was the basis of liability and the other was the extent to which the trade union could be found liable. Possible liability is dealt with by the extent to which a trade union can be liable in respect of compensation up to the limit specified in Clause 103. Speaking from instant memory, I think that the exact foundation of liability in the Taff Vale case was in respect of inducing breaches of contracts of employment.

Mr. Orme


The Solicitor-General

To reverse that aspect, it would have been necessary to repeal, lock, stock and barrel, Section 3 of the 1906 Act. We have not done that. What we have done is to preserve the extent of Section 3 of the 1906 Act in the ordinary courts but, to a limited extent, to repeal it in the Industrial Relations Court. To make plain the nature of the limit, it is still open to a registered union or its officials acting on its behalf to induce breaches of contract of employment, just as they could under Section 3 of the 1906 Act. It is only the unregistered, unofficial organisation which has had withdrawn from it the Section 3 privileges. In accordance with the recommendations of the Donovan Commission, these Clauses are preserving the exclusion of industrial relations cases from the ordinary court.

Mr. John Mendelson

The Solicitor-General should add, should he not, that, to the extent that the Bill is shot through with other provisions removing the protection of Section 3 of the 1906 Act, he is effectively abolishing the protection of Section 3 over a wide range of industrial practice?

The Solicitor-General

Not so. I am redefining the extent of the immunities conferred by it, as advertised in "Fair Deal at Work" three years ago. I am certainly identifying some unfair practices in respect of which the inducing of industrial action is unfair. To that extent for specific purposes it is being done. In the context of this Clause the protection of the ordinary court remains, and it is the Industrial Court which will be seized of the new jurisdiction.

It is unnecessary to contemplate acceptance of this group of Amendments, although it has been useful for the Committee to have this explanation of the object of the exercise.

Question put, That the Amendment be made:—

The Committee proceeded to a Division:—

The Temporary Chairman

Lock the doors.

Mr. William Rodgers (Stockton-on-Tees) (seated and covered)

On a point of order, Mr. Mallalieu. Can you, in the first place, assure us that the doors were closed six minutes after the Division was called? In the second place, will you take note of the fact that a number of hon. Members were seeking to enter the Chamber but were prevented by an exodus of other hon. Members? In the circumstances, will you consider calling the Division again?

The Temporary Chairman

The correct time of six minutes was allowed. I have taken note of what the hon. Gentleman has said.

Mr. Rodgers

You say that you have taken note of what I have said. What significance are we to attach to that? May we be assured that, in future Divisions, the entrance to the Chamber will not be blocked? Or are we to take it that you now propose to call the Division again?

The Temporary Chairman

Since the full time for the Division was allowed, it is not for me to take any further action.

Mr. Rodgers

Will you be good enough to say in what circumstances action will be taken to ensure that hon. Members leaving the Chamber do not prevent other hon. Members entering in order to vote? With the greatest respect, it is not satisfactory simply to say that you have taken note of my point. What action will be taken to enable hon. Members to record their votes?

The Temporary Chairman

The rules governing Divisions will of course be

Division No. 192.] AYES [9.44 p.m.
Abse, Leo Douglas, Dick (Stirlingshire, E.) Johnson, Walter (Derby, S.)
Allaun, Frank (Salford, E.) Douglas-Mann, Bruce Jones, Barry (Flint, E.)
Allen, Scholefield Driberg, Tom Jones, Dan (Burnley)
Archer, Peter (Rowley Regis) Duffy, A. E. P. Jones,Rt.Hn.SirElwyn(W.Ham,S.)
Ashley, Jack Dunn, James A. Jones, Gwynoro (Carmarthen)
Ashton, Joe Dunnett, Jack Judd, Frank
Atkinson, Norman Eadie, Alex Kaufman, Gerald
Bagier, Gordon A. T. Edwards, Robert (Bilston) Kelley, Richard
Barnett, Joel Edwards, William (Merioneth) Kerr, Russell
Beaney, Alan Ellis, Tom Kinnock, Neil
Bennett, James (Glasgow, Bridgeton) English, Michael Lambie, David
Bidwell, Sydney Evans, Fred Latham, Arthur
Bishop, E. S. Fernyhough, E. Lawson, George
Blenkinsop, Arthur Fisher, Mrs. Doris(B'ham,Ladwood) Leadbitter, Ted
Boardman, H. (Leigh) Fitch, Alan (Wigan) Lee, Rt. Hn. Frederick
Booth, Albert Fletcher, Ted (Darlington) Leonard, Dick
Bradley, Tom Foley, Maurice Lestor, Miss Joan
Brown, Bob (N'c'tle-upon-Tyne, W.) Ford, Ben Lewis, Arthur (W. Ham N.)
Brown, Hugh D. (G'gow, Provan) Forrester, John Lewis, Ron (Carlisle)
Brown, Ronald (Shoreditch & F'bury) Fraser, John (Norwood) Lipton, Marcus
Buchan, Norman Freeson, Reginald Lomas, Kenneth
Butler, Mrs. Joyce (Wood Green) Galpern, Sir Myer Loughlin, Charles
Callaghan, Rt. Hn. James Gilbert, Dr. John Lyon, Alexander W. (York)
Campbell, I. (Dunbartonshire, W.) Ginsburg, David Lyons, Edward (Bradford, E.)
Cant, R. B. Golding, John Mabon, Dr. J. Dickson
Carmichael, Neil Gourlay, Harry McBride, Neil
Carter, Ray (Birmingh'm, Northfield) Grant, George (Morpeth) McCartney, Hugh
Carter-Jones, Lewis (Eccles) Grant, John D. (Islington, E.) McElhone, Frank
Castle, Rt. Hn. Barbara Griffiths, Eddie (Brightside) McGuire, Michael
Clark, David (Colne Valley) Griffiths, Will (Exchange) Mackenzie, Gregor
Cocks, Michael (Bristol, S.) Hamilton, James (Bothwell) Mackie, John
Cohen, Stanley Hamilton, William (Fife, W.) Mackintosh, John P.
Coleman, Donald Hamling, William Maclennan, Robert
Concannon, J. D. Hannan, William (G'gow, Maryhill) McMillan, Tom (Glasgow, C.)
Conlan, Bernard Hardy, Peter McNamara, J. Kevin
Corbet, Mrs. Freda Harper, Joseph MacPherson, Malcolm
Cox, Thomas (Wandsworth, C.) Harrison, Walter (Wakefield) Mahon, Simon (Bootle)
Crawshaw, Richard Hart, Rt. Hn. Judith Mallalieu, J. P. W. (Huddersfield, E.)
Cronin, John Heffer, Eric S. Marquand, David
Crosland, Rt. Hn. Anthony Hilton, W. S. Mason, Rt. Hn. Roy
Crossman, Rt. Hn. Richard Horam, John Mayhew, Christopher
Cunningham, G. (Islington, S.W.) Houghton, Rt. Hn. Douglas Meacher, Michael
Dalyell, Tam Howell, Denis (Small Heath) Mellish, Rt. Hn. Robert
Darling, Rt. Hn. George Huckfield, Leslie Mendelson, John
Davidson, Arthur Hughes, Rt. Hn. Cledwyn (Anglesey) Mikardo, Ian
Davies, Denzil (Llanelly) Hughes, Mark (Durham) Millan, Bruce
Davies, G. Elfed (Rhondda, E.) Hughes, Roy (Newport) Miller, Dr. M. S.
Davies, S. O. (Merthyr Tydvil) Hunter, Adam Milne, Edward (Blyth)
Davis, Clinton (Hackney, C.) Irvine,Rt.Hn.SirArthur(Edge Hill) Molloy, William
Deakins, Eric Janner, Greville Morgan, Elystan (Cardiganshire)
Delargy, H. J. Jay, Rt. Hn. Douglas Morris, Alfred (Wythenshawe)
Dell, Rt. Hn. Edmund Jenkins, Hugh (Putney) Morris, Charles R. (Openshaw)
Dempsey, James John, Brynmor Morris, Rt. Hn. John (Aberavon)
Doig, Peter Johnson, Carol (Lewisham, S.) Moyle, Roland
Dormand, J. D. Johnson, James (K'ston-on-Hull, W.) Malley, Rt. Hn. Frederick

observed. That should enable hon. Members to record their votes correctly.

Mr. Rodgers

Will you confirm that there are precedents for Divisions being cancelled and called again in cases where hon. Members are prevented from voting because the entrance to the Chamber is blocked by an exodus of other hon. Members? That being the case, will you ensure by your action that we are not prevented from entering the Chamber in the course of the next Division?

The Temporary Chairman

I shall of course do my best to see that no hon. Member is obstructed wilfully.

The Committee having divided: Ayes 240, Noes 286.

Murray, Ronald King Roberts,Rt.Hn.Goronwy(Caernarvon) Thomas, Jeffrey (Abertillery)
Ogden, Eric Robertson, John (Paisley) Thomson, Rt. Hn. G. (Dundee, E.)
O'Halloran, Michael Roderick, Caerwyn E.(Br'c'n&R'dnor) Tinn, James
O'Malley, Brian Roper, John Tomney, Frank
Oram, Bert Rose, Paul B. Tuck, Raphael
Orme, Stanley Ross, Rt. Hn. William (Kilmarnock) Urwin, T. W.
Oswald, Thomas Sheldon, Robert (Ashton-under-Lyne) Wainwright, Edwin
Owen, Dr. David (Plymouth, Sutton) Shore, Rt. Hn. Peter (Stepney) Walker, Harold (Doncaster)
Paget, R. T. Short,Rt.Hn.Edward(N'c'tle-u-Tyne) Wallace, George
Palmer, Arthur Short, Mrs. Renée (W'hampton,N.E.) Watkins, David
Pannell, Rt. Hn. Charles Silkin, Hn. S. C. (Dulwich) Weitzman, David
Parker, John (Dagenham) Sillars, James Wellbeloved, James
Parry, Robert (Liverpool, Exchange) Silverman, Julius Wells, William (Walsall, N.)
Pavitt, Laurie Skinner, Dennis White, James (Glasgow, Pollok)
Peart, Rt. Hn. Fred Small, William Whitehead, Phillip
Pendry, Tom Smith, John (Lanarkshire, N.) Whitlock, William
Pentland, Norman Spearing, Nigel Willey, Rt. Hn. Frederick
Perry, Ernest G. Spriggs, Leslie Williams, Alan (Swansea, W.)
Prentice, Rt. Hn. Reg. Stallard, A. W. Williams, W. T. (Warrington)
Prescott, John Stoddart, David (Swindon) Wilson, Alexander (Hamilton)
Price, J. T. (Westhoughton) Stonehouse, Rt. Hn. John Wilson, Rt. Hn. Harold (Huyton)
Probert, Arthur Strang, Gavin Wilson, William (Coventry, S.)
Rankin, John Strauss, Rt. Hn. G. R.
Reed, D. (Sedgefield) Summerskill, Hn. Dr. Shirley TELLERS FOR THE AYES:
Rees, Merlyn (Leeds, S.) Swain, Thomas Mr Kenneth Marks and
Rhodes, Geoffrey Thomas,Rt.Hn.George (Cardiff,W.) Mr. Ernest Armstrong.
Roberts, Albert (Normanton)
Alison, Michael (Barkston Ash) Crowder, F. P. Harvey, Sir Arthur Vere
Allason, James (Hemel Hempstead) Curran, Charles Haselhurst, Alan
Astor, John Dalkeith, Earl of Havers, Michael
Atkins, Humphrey Davies, Rt. Hn. John (Knutsford) Hawkins, Paul
Awdry, Daniel d'Avigdor-Goldsmid, Sir Henry Hayhoe, Barney
Baker, Kenneth (St. Marylebone) d'Avigdor-Goldsmid, Maj.-Gen, Jack Heseltine, Michael
Baker, W. H. K. (Banff) Dean, Paul Hicks, Robert
Balniel, Lord Digby, Simon Wingfield Higgins, Terence L.
Barber, Rt. Hn. Anthony Dixon, Piers Hiley, Joseph
Batsford, Brian Dodds-Parker, Douglas Hill, John E. B. (Norfolk, S.)
Bell, Ronald Drayson, G. B. Hill, James (Southampton, Test)
Bennett, Sir Frederic (Torquay) du Cann, Rt. Hn. Edward Holland, Phillip
Bennett, Dr. Reginald (Gosport) Dykes, Hugh Holt, Miss Mary
Benyon, W. Eden, Sir John Hooson, Emlyn
Berry, Hn. Anthony Edwards, Nicholas (Pembroke) Hordern, Peter
Biffen, John Elliot, Capt. Walter (Carshalton) Hornby, Richard
Biggs-Davison, John Elliott, R. W. (N'c'tle-upon-Tyne,N.) Hornsby-Smith,Rt.Hn.Dame Patricia
Blaker, Peter Emery, Peter Howe, Hn. Sir Geoffrey (Reigate)
Boardman, Tom (Leicester, S.W.) Eyre, Reginald Howell, David (Guildford)
Body, Richard Farr, John Howell, Ralph (Norfolk, N.)
Boscawen, Robert Fell, Anthony Hunt, John
Bossom, Sir Clive Fenner, Mrs. Peggy Hutchison, Michael Clark
Bowden, Andrew Finsberg, Geoffrey (Hampstead) Iremonger, T. L.
Braine, Bernard Fisher, Nigel (Surbiton) James, David
Bray, Ronald Fletcher-Cooke, Charles Jenkin, Patrick (Woodford)
Brewis, John Fookes, Miss Janet Jessel, Toby
Brocklebank-Fowler, Christopher Fox, Marcus Johnson Smith, G. (E. Grinstead)
Brown, Sir Edward (Bath) Fry, Peter Jopling, Michael
Bruce-Gardyne, J. Galbraith, Hn. T. G. Joseph, Rt. Hn. Sir Keith
Bryan, Paul Gardner, Edward Kaberry, Sir Donald
Buchanan-Smith, Alick(Angus,N&M) Gibson-Watt, David Kellett, Mrs. Elaine
Buck, Antony Gilmour, Ian (Norfolk, C.) Kershaw, Anthony
Bullus, Sir Eric Gilmour, Sir John (Fife, E.) Kilfedder, James
Butler, Adam (Bosworth) Glyn, Dr. Alan King, Evelyn (Dorset, S.)
Campbell, Rt.Hn.G.(Moray&Nairn) Godber, Rt. Hn. J. B. King, Tom (Bridgwater)
Carlisle, Mark Goodhart, Philip Kinsey, J. R.
Cary, Sir Robert Goodhew, Victor Kirk, Peter
Channon, Paul Gorst, John Kitson, Timothy
Chapman, Sydney Gower, Raymond Knight, Mrs. Jill
Chataway, Rt. Hn. Christopher Grant, Anthony (Harrow, C.) Knox, David
Chichester-Clark, R. Gray, Hamish Lambton, Antony
Churchill, W. S. Green, Alan Lane, David
Clark, William (Surrey, E.) Grieve, Percy Langford-Holt, Sir John
Clarke, Kenneth (Rushcliffe) Griffiths. Eldon (Bury St. Edmunds) Legge-Bourke, Sir Harry
Clegg, Walter Grimond, Rt. Hn. J. Lewis, Kenneth (Rutland)
Cockeram, Eric Grylls, Micha[...] Lloyd,Rt.Hn.Geoffrey(Sut'nC'dfield)
Cooke, Robert Gummer, Selwyn Lloyd, Ian (P'tsm'th, Langstone)
Coombs, Derek Gurden, Harold Longden, Gilbert
Cooper, A. E. Hall, Miss Joan (Keighley) Loveridge, John
Corfield, Rt. Hn. Frederick Hall, John (Wycombe) MacArthur, Ian
Cormack, Patrick Hall-Davis, A. G. F McCrindle, R. A.
Costain, A. P. Hamilton, Michael (Salisbury) McLaren, Martin
Critchley, Julian Hannam, John (Exeter) Maclean, Sir Fitzroy
Crouch, David Harrison, Brian (Maldon) McMaster, Stanley
Macmillan, Maurice (Farnham) Percival, Ian Stodart, Anthony (Edinburgh, W.)
McNair-Wilson, Michael Pike, Miss Mervyn Stoddart-Scott, Col. Sir M.
McNair-Wilson, Patrick (NewForcest) Pink, R. Bonner Stokes, John
Maddan, Martin Pounder, Rafton Stuttaford, Dr. Tom
Madel, David Powell, Rt. Hn. J. Enoch Sutcliffe, John
Maginnis, John E. Price, David (Eastleigh) Tapsell, Peter
Marples, Rt. Hn. Ernest Prior, Rt. Hn. J. M. L. Taylor, Sir Charles (Eastbourne)
Marten, Neil Proudfoot, Wilfred Taylor, Frank (Moss Side)
Mather, Carol Pym, Rt. Hn. Francis Taylor, Robert (Croydon, N.W.)
Maude, Angus Quennell, Miss J. M. Tebbit, Norman
Maudling, Rt. Hn. Reginald Raison, Timothy Temple, John M.
Mawby, Ray Ramsden, Rt. Hn. James Thatcher, Rt. Hn. Mrs. Margaret
Maxwell-Hyslop, R. J. Rawlinson, Rt. Hn. Sir Peter Thomas, John Stradling (Monmouth)
Meyer, Sir Anthony Redmond, Robert Thompson, Sir Richard (Croydon, S.)
Mills, Peter (Torrington) Reed, Laurance (Bolton, E.) Trafford, Dr. Anthony
Mills, Stratton (Belfast, N.) Rees, Peter (Dover) Trew, Peter
Miscampbell, Norman Rees-Davies, W. R. Turton, Rt. Hn. R. H.
Mitchell,Lt.-Col.C.(Aberdeenshire,W) Renton, Rt. Hn. Sir David van Straubenzee, W. R.
Mitchell, David (Basingstoke) Rhys Williams, Sir Brandon Vickers, Dame Joan
Moate, Roger Ridley, Hn. Nicholas Waddington, David
Molyneaux, James Ridadale, Julian Walder, David (Clitheroe)
Money, Ernie Rippon, Rt. Hn. Geoffrey Walker, Rt. Hn. Peter (Worcester)
Monks, Mrs. Connie Roberts, Michael (Cardiff, N.) Walker-Smith, Rt. Hn. Sir Derek
Montgomery, Fergus Roberts, Wyn (Conway) Wall, Patrick
More, Jasper Rodgers, Sir John (Sevenoaks) Walters, Dennis
Morgan, Geraint (Denbigh) Rossi, Hugh (Hornsey) Ward, Dame Irene
Morgan-Giles, Rear-Adm. Rost, Peter Warren, Kenneth
Mudd, David Royle, Anthony Weatherill, Bernard
Murton, Oscar Russell, Sir Ronald Wells, John (Maidstone)
Nabarro, Sir Gerald St. John-Stevas, Norman White, Roger (Gravesend)
Neave, Airey Scott-Hopkins, James Wiggin, Jerry
Nicholls, Sir Harmar Sharples, Richard Wilkinson, John
Noble, Rt. Hn. Michael Shaw, Michael (Sc'b'gh & Whitby) Wolrige-Gordon, Patrick
Normanton, Tom Shelton, William (Clapham) Woodhouse, Hn. Christopher
Nott, John Simeons, Charles Woodnutt, Mark
Onslow, Cranley Skeet, T. H. H. Worsley, Marcus
Oppenheim, Mrs. Sally Smith, Dudley (W'wick & L'mington) Wylie, Rt. Hn. N. R.
Orr, Capt. L. P. S. Soref, Harold Younger, Hn. George
Osborn, John Spence, John
Owen, Idris (Stockport, N.) Sproat, Iain TELLERS FOR THE NOES:
Page, Graham (Crosby) Stainton, Keith Mr. Tim Fortescue and
Page, John (Harrow, W.) Stanbrook, Ivor Mr. Keith Speed.
Parkinson, Cecil (Enfield, W.) Stewart-Smith, D. G. (Belper)
Mr. John Prescott (Kingston upon Hull, East)

I beg to move Amendment No. 862, in page 82, line 38, leave out `only'.

Many hon. Members who are not trained in the legal profession may think that missing out one word does not mean a great deal. But, after the debates about "may", "shall" and "will" and the connotations which they can have in a Bill of this nature, one wonders how important a single word can be. Certainly the word "only" takes on a tremendous significance.

I tread with some trepidation into this legal sphere, particularly as I am surrounded by many lawyers on both sides. I have spent considerable time listening to the Solicitor-General say that in many cases it is difficult to give a proper answer to the situation and the court will decide. I wonder in that situation whether we may reach the position in Australia where the Solicitor-General, introducing similar laws, was eventually promoted to the court as a judge and had to interpret and define what was meant.

I enjoy one advantage, because I wish to draw the attention of the Committee to the Merchant Shipping Acts and the relevance of the Clause to merchant seamen.

Clause 118 deals with Section 3 of the 1906 Act and also rectifies the 1965 Act which was brought in to deal with the situation brought about by the Rookes v. Barnard decision.

As I understand, and as was pointed out on an earlier Clause, certain difficulties will arise regarding actions in tort out of the mere narrowing of the definition from "trade dispute" to "industrial dispute". I think that other hon. Members may wish to develop that point in regard to the trade unions ashore concerning their activities and liability for actions in tort for what has been considered to this day a normal industrial practice. For example, in the Torquay hotel case the definition of "trade dispute" and "industrial dispute" came clearly to the fore.

The point which I wish to develop concerns the word "only" in Clause 118 which states: An act done by a person in contemplation or furtherance of an industrial dispute shall not be actionable in tort on the ground only—

  1. (a) that it induces another person to break a contract or
  2. (b) that it consists in his threatening that a contract … will be broken".
It is important to draw to the attention of the Committee that there is a separate penal provision in the Merchant Shipping Act, 1970, in which certain acts ranging from wilful disobedience to certain lawful commands to being absent without leave at the time of sailing can constitute criminal offences.

Section 31 of the Merchant Shipping Act, which deals with being absent without leave at the time of sailing, is pertinent to this point about the word "only" in that if a man who has signed on a ship and signed separate articles, that being his contract of employment, fails to join the ship when it sails, he will be absent without leave and in breach of his contract. Under the Merchant Shipping Act, he will be liable, on summary conviction, to a fine not exceeding £100.

One can imagine the industrial problems which can arise in that situation. For example, if seamen in the course of their employment on a ship find that the captain wishes to dismiss a man in a situation where they feel that something wrong has been done and they do not wish to sail on the ship, but the captain wants to put to sea within 24 hours so that they are not able to give sufficient notice to end their contracts and they walk off, yet the reason is sufficiently strong for the trade union official to say, "Yes, I think you are right to come off the vessel", he will be inducing a breach of contract. In inducing a breach of contract that official, like most other trade union officials in this situation, will be covered, except that he also induces the men to commit a criminal offence—the offence laid down in the Merchant Shipping Act to which I have just referred. This is where the protection becomes important. The Clause states: … shall not be actionable in tort on the ground only— (a) that it induces another person to break a contract, or … threatening that contract.

In this case I am led to believe that the very inducing a person to commit a criminal act in breach of contract would also lead to the possibility of an action in tort against the official and the men concerned, and the trade union.

Clause 117 refers to Avoidance of encroachment on jurisdiction of Industrial Court or of industrial tribunals in such matters, but it would offer no protection in this case because the act itself is a criminal act and would be dealt with by another court.

10.0 p.m.

To make my point I refer to other Clauses. Clause 85 is clearly designed to offer protection to the trade union official or those acting on behalf of the union who induce others to breach their contract. This would not be guaranteed to the seaman, again, because of the suggestion that he would be getting them to commit an unlawful act. Therefore, the third parties would have an action in damages against the owners, against the union, and possibly against the officials and the men also. In inducing a breach of contract they commit an unlawful act.

The Cunard v. Stacey case is one of a number in law where this has been brought up. I do not have the necessary confidence in the law to develop the points arising out of that. I seek the Solicitor-General's views on this matter. Does this mean that the trade union official performing his normal industrial function would be made liable to an action in tort against which other trade union officials in their normal affairs are protected?

Other difficulties would arise if this interpretation were accepted, especially regarding Clause 87 and extraneous parties. I do not feel able to develop that legal point. I hope that the Solicitor-General will give guidance as to the role of the trade union official, in regard to shipping, where he commits not only an inducement to breach a contract but also a criminal act.

[Sir ROBERT GRANT-FERRIS in the Chair]

The Solicitor-General

The point has been raised again in a narow compass by the hon. Member for Kingston upon Hull, East (Mr. Prescott) obviously in the context of the particular difficulties which he visualises in the merchant shipping industry, because the inclusion of the word "only" from every other point of view—and as I shall show, from his point of view—repeats the corresponding provisions in existing statute law.

The provisions of the 1871 Act, Section 2, are reproduced in Clause 122(a). The provisions of Section 3 of that Act are reproduced in Clause 122(b). The provisions of the 1906 Act, Section 1, are reproduced in Clause 118(3), and those of the 1906 Act, Section 3, first limb, in Clause 118(1) and of the 1906 Act, Section 3, second limb, Clause 118(2).

There is no change in the substantial provision against the background of which the Merchant Navy's problems have to be considered. The particular part relevant to its problems arises in the context of the Cunard v. Stacey case to some extent from the 1875 Act and to some extent from uncertainty about the effect of that on their position.

As the hon. Gentleman will know better than I, the Merchant Shipping Act, 1970, made changes in that. Indeed, the hon. Member for Doncaster (Mr. Harold Walker), replied to the Standing Committee debate on this Clause in relation to the corresponding provisions in the Merchant Shipping Act, 1970. The effect of the 1970 Act provisions was twofold. They are in Section 42. The effect was to make plain that, notwithstanding any agreement, a merchant seaman can give 48 hours' notice of termination of his contract; so he is able to terminate his contract on that notice, provided that the ship is securely moored in a safe berth in the United Kingdom.

The beneficial effects of that were extended by saying that the 1875 Act would apply to seamen, contrary to the original exception from the 1875 Act. So to that extent the doubts raised by Cunard v. Stacey were removed by the 1970 Act.

The Bill does nothing to disturb that balance. I appreciate that the hon. Gentleman and his colleagues were not altogether happy that the last Government had gone as far as they would have liked in the context of the 1970 Act. I appreciate that the hon. Gentleman, again with others, has suggested that this would be an opportunity for us to march further down the road away from the 1896 Act. However, as the 1970 Act has been on the Statute Book for only a few months—indeed, I am not sure that all of it has been in force for even that long—we do not consider that this is the time or place in which to begin disturbing the uneasy settlement which the hon. Member for Doncaster defended in Standing Committee on the 1970 Bill.

The point about which the hon. Gentleman is anxious is whether anything has been done in the Bill to disturb that balance adversely.

Mr. Prescott

I appreciate fully that the Bill does not change the position under the Merchant Shipping Act, 1906, the previous Merchant Shipping Acts, or the 1970 Act. My case is that a trade union official, be he an official of the seamen's union or an official of a trade union ashore, should have the right to call upon people in a dispute situation to come out on strike, which would be an inducement of a breach of contract. By so doing he would render himself liable to an action in tort for damages, something which would not apply to any other trade union official in a similar situation. The Consultative Documents says that the Government wish to remove the aspect of criminality from industrial relations. Indeed, they do this, by means of a later Clause, in respect of gas and electricity workers and the 1875 Act. Is it fair to leave an official of the seamen's union who is performing his normal trade union function liable to a action in court?

The Solicitor-General

The fact that the criminal law is involved to the extent specified in the 1970 Act is something which was the subject of an uneasy compromise last year, and we do not propose to alter that balance. The criminal nature of the provisions in the 1970 Act are those which represent an advance from the 1894 Act. That is a different argument, not in the context of this debate.

The hon. Gentleman raises the separate point that, because merchant seamen can in certain circumstances commit a criminal offence under the 1970 Act by breaking their contracts of employment or by doing other things, therefore the trade union organiser of merchant seamen is unusually exposed to a certain type of action because he would be inducing, not breaches of contract of employment, but the commission of criminal offences.

It is doubtful whether that gives rise to a separate cause of action in conspiracy against such an official. Cunard v. Stacey was only an interim decision. It was given in circumstances when the 1875 Act plainly did not apply to seamen; and, if anything, it is even less likely that a decision would be given adverse to the trade union official now than it was then. This Bill does not change that provision. We have not thought it right to do so. I am not prepared to tell the hon. Gentleman that we will take this opportunity to change that part of the law specially designed to affect merchant seamen.

Mr. Prescott

Except that the Government have said that the Bill is to strengthen trade unionism. This is a classical example of how they can do it.

The Solicitor-General

We are doing great things in the Bill, but we are not necessarily undertaking to redress, restore or rewrite all the positions of balance so recently reached by the previous Administration on this topic. I know that the general application of the criminal law to the contracts of merchant seamen has been long debated and will continue to be debated, but this is not for this Bill.

The narrower point of the hazards has been diminished by the 1970 Act and has not been increased by this Bill. It is right for the hon. Gentleman to ventilate again the case he has ventilated so often before, but it is not necessary to change this Bill to deal with that case.

Mr. Loughlin

Is not part of my hon. Friend's case the fact that a trade union official dealing with merchant seamen will be exposed under the Bill to a further sanction—a liability to actions in tort? This means that it is a double-ended weapon. Could the hon. and learned Gentleman look into this to see whether some assistance could be given?

The Solicitor-General

The hon. Gentleman misunderstands. The Bill does not expose the union official dealing with seamen to actions in tort any more than he is already. It is maintaining the immunity from such actions to the existing extent. There is no change on that. It is doubtful whether there is any special liability to an action for the tort of conspiracy for those organising merchant seamen, even as the law stands.

The Bill does not change that—

Mr. Prescott

It is not improving it.

The Solicitor-General

No, we are improving many things but we have not taken that on board, and this does not seem to be the right time or place to do it.

Mr. Harold Walker

I hope that the Solicitor-General was not taking refuge in what I said when the Merchant Shipping Bill was going through the House in 1970. I would remind him of two things that I said on Report dealing with the penal provisions of the Bill. The first was the important principle that no Government can govern without the consent of those to whom their laws apply, and that, if it was the wish of the industry to pursue the path being proposed to the House by my hon. Friends, we, the then Government, would be all too ready sympathetically to respond.

The second important point which we expressed then—I do not want to rely too much on memory here or to over-commit myself—was that we gave in that situation, which is changed by this Bill, a pledge to the National Union of Seamen to review the situation in a short time to see whether the new machinery being created in the industry necessitated the perpetuation of the penal provisions.

10.15 p.m.

Mr. McNamara

I rise simply to underline the point made by my hon. Friend the Member for Doncaster (Mr. Harold Walker) because it was my hon. Friend the Member for Liverpool, Walton (Mr. Heffer) and I, when we pressed the then Government on the question of penal sanctions, were given the impression that this matter would be reviewed in about two years' time. As about one year has passed and as the then Opposition did not dissent from what was said, we are looking forward to the time when the present Government will review the situation.

Question put, That the Amendment be made:—

Division No. 193.] AYES [10.15 p.m.
Abse, Leo Galpern, Sir Myer Mellish, Rt. Hn. Robert
Albu, Austen Gilbert, Dr. John Mendelson, John
Allaun, Frank (Salford, E.) Ginsburg, David Mikardo, Ian
Allen, Scholefield Golding, John Millan, Bruce
Archer, Peter (Rowley Regis) Gourlay, Harry Miller, Dr. M. S.
Armstrong, Ernest Grant, George (Morpeth) Milne, Edward (Blyth)
Ashley, Jack Grant, John D. (Islington, E.) Molloy, William
Ashton, Joe Griffiths, Eddie (Brightside) Morgan, Elystan (Cardiganshire)
Atkinson, Norman Griffiths, Will (Exchange) Morris, Alfred (Wythenshawe)
Bagier, Gordon A. T. Hamilton, James (Bothwell) Morris, Charles R. (Openshaw)
Barnett, Joel Hamilton, William (Fife, W.) Morris, Rt. Hn. John (Aberavon)
Beaney, Alan Hamling, William Moyle, Roland
Bennett, James (Glasgow, Bridgeton) Hannan, William (G'gow, Maryhill) Mulley, Rt. Hn. Frederick
Bidwell, Sydney Hardy, Peter Murray, Ronald King
Bishop, E. S. Harrison, Walter (Wakefield) Ogden, Eric
Blenkinsop, Arthur Hart, Rt. Hn. Judith O'Halloran, Michael
Boardman, H. (Leigh) Hattersley, Roy O'Malley, Brian
Booth, Albert Heffer, Eric S. Oram, Bert
Bradley, Tom Hilton, W. S. Orme, Stanley
Brown, Bob (N'c'tle-upon-Tyne,W.) Horam, John Oswald, Thomas
Brown, Hugh D. (G'gow, Provan) Houghton, Rt. Hn. Douglas Owen, Dr. David (Plymouth, Sutton)
Brown, Ronald (Shoreditch & F' bury) Huckfield, Leslie Paget, R. T.
Buchan, Norman Hughes, Rt.Hn. Cledwyn (Anglesey) Palmer, Arthur
Butler, Mrs. Joyce (Wood Green) Hughes, Mark (Durham) Pannell, Rt. Hn. Charles
Callaghan, Rt. Hn. James Hughes, Roy (Newport) Parker, John (Dagenham)
Campbell, I. (Dunbartonshire, W.) Hunter, Adam Parry, Robert (Liverpool, Exchange)
Cant, R. B. Irvine, Rt.Hn.SirArthur(Edge Hill) Pavitt, Laurie
Carmichael, Neil Janner, Greville Peart, Rt. Hn. Fred
Carter, Ray (Birmingh'm, Northfield) Jay, Rt. Hn. Douglas Pendry, Tom
Carter-Jones, Lewis (Eccles) Jeger,Mrs.Lena(H'b'n&St.P'cras,S.) Pentland, Norman
Castle, Rt. Hn. Barbara Jenkins, Hugh (Putney) Perry, Ernest G.
Clark, David (Colne Valley) John, Brynmor Prentice, Rt. Hn. Reg.
Cocks, Michael (Bristol, S.) Johnson, Carol (Lewisham, S.) Prescott, John
Cohen, Stanley Johnson, James (K'ston-on-Hull, W.) Price, J T. (Westhoughton)
Concannon, J. D. Johnson, Walter (Derby, S.) Price, William (Rugby)
Conlan, Bernard Jones, Barry (Flint, E.) Probert, Arthur
Corbet, Mrs. Freda Jones, Dan (Burnley) Rankin, John
Cox, Thomas (Wandsworth, C.) Jones,Rt.Hn.Sir Elwyn(W. Ham,S.) Reed, D. (Sedgefield)
Crawshaw, Richard Jones, Gwynoro (Carmarthen) Rees, Merlyn (Leeds, S.)
Crosland, Rt. Hn. Anthony Judd, Frank Rhodes, Geoffrey
Crossman, Rt. Hn. Richard Kaufman, Gerald Richard, Ivor
Cunningham, G. (Islington, S.W.) Kelley, Richard Roberts, Albert (Normanton)
Dalyell, Tam Kerr, Russell Roberts, Rt. Hn. Goronwy(Caernarvon)
Darling, Rt. Hn. George Kinnock, Neil Robertson, John (Paisley)
Davidson, Arthur Lambie, David Roderick, Caerwyn E.(Br'c'n&R'dno)
Davies, Denzil (Llanelly) Latham, Arthur Rogers, William (Stockton-on-Tees)
Davies, G. Elfed (Rhondda, E.) Lawson, George Roper, John
Davies, S. O. (Merthyr Tydvil) Leadbitter, Ted Rose, Paul B.
Davis, Clinton (Hackney, C.) Lee, Rt. Hn. Frederick Ross, Rt. Hn. William (Kilmarnock)
Deakins, Eric Leonard, Dick Sheldon, Robert (Ashton-under-Lyne
de Freitas, Rt. Hn. Sir Geoffrey Lestor, Miss Joan Shore, Rt. Hn. Peter (Stepney)
Delargy, Hn. J. Lewis, Arthur (W. Ham, N.) Short,Rt.Hn,Edward(N'c'tle-u-Tyne)
Dell, Rt. Hn. Edmund Lewis, Ron (Carlisle) Silkin, Hn. S. C. (Dulwich)
Dempsey, James Lipton, Marcus Sillars, James
Doig, Peter Lomas, Kenneth Silverman, Julius
Dormand, J. D. Loughlin, Charles Skinner, Dennis
Douglas, Dick (Stirlingshire, E.) Lyon, Alexander W. (York) Small, William
Douglas-Mann, Bruce Lyons, Edward (Bradford, E.) Smith, John (Lanarkshire, N.)
Driberg, Tom Mabon, Dr. J. Dickson Spearing, Nigel
Duffy, A. E. P. McBride, Neil Spriggs, Leslie
Dunn, James A. McCartney, Hugh Stallard, A. W.
Dunnett, James McElhone, Frank Stewart, Rt. Hn. Michael (Fulham)
Eadie, Alex McGuire, Michael Stoddart, David (Swindon)
Edwards, Robert (Bilston) Mackenzie, Gregor Storehouse, Rt. Hn. John
Edwards, William (Merioneth) Mackie, John Strang, Gavin
Ellis, Tom Mackintosh, John P. Strauss, Rt. Hn. G. R.
English, Michael Maclennan, Robert Summerskill, Hn. Dr. Shirley
Evans, Fred McMillan, Tom (Glasgow, C.) Swain, Thomas
Fernyhough, E. McNamara, J. Kevin Tavern, Dick
Fisher, Mrs.Doris(B'ham,Ladywood) MacPherson, Malcolm Thomas, Rt.Hn. George (Cardiff, W.)
Fitch, Alan (Wigan) Mahon, Simon (Bootle) Thomas, Jeffrey (Abertillery)
Fletcher, Ted (Darlington) Mallalieu, J. P. W. (Huddersfield, E.) Thomson, Rt. Hn. G. (Dundee, E.)
Foley, Maurice Marks, Kenneth Tinn, James
Ford, Benn Marquand, David Tomney, Frank
Forrester, John Mason, Rt. Hn. Roy Tuck, Raphael
Fraser, John (Norwood) Mayhew, Christopher Urwin, T. W.
Freeson, Reginald Meacher, Michael Variey, Eric G.

The Committee divided: Ayes 247, Noes 276.

Wainwright, Edwin White, James (Glasgow, Pollok) Wilson, Alexander (Hamilton)
Walker, Harold (Doncaster) Whitehead, Phillip Wilson, Rt. Hn. Harold (Huyton)
Wallace, George Whitlock, William Wilson, William (Coventry, S.)
Watkins, David Willey, Rt. Hn. Frederick
Weitzman, David Williams, Alan (Swansea, W.) TELLERS FOR THE AYES:
Wellbeloved, James Williams, Mrs. Shirley (Hitchin) Mr. Donald Coleman and
Wells, William (Walsall, N.) Williams, W. T. (Warrington) Mr. Joseph Harper.
Alison, Michael (Barkston Ash) Fookes, Miss Janet Le Marchant, Spencer
Allason, James (Hemel Hempstead) Fortescue, Tim Lewis, Kenneth (Rutland)
Astor, John Fox, Marcus Lloyd,Rt.Hn.Geoffrey(Sut'nC'dfield)
Atkins, Humphrey Fry, Peter Lloyd, Ian (P'tsm'th, Langstone)
Awdry, Daniel Galbraith, Hn. T. G. Longden, Gilbert
Baker, W. H. K. (Banff) Gardner, Edward Loveridge, John
Balniel, Lord Gibson-Watt, David MacArthur, Ian
Batsford, Brian Gilmour, Ian (Norfolk, C.) McCrindle, R. A.
Bell, Ronald Gilmour, Sir John (Fife, E.) McLaren, Martin
Bennett, Sir Frederic (Torquay) Glyn, Dr. Alan Maclean, Sir Fitzroy
Bennett, Dr. Reginald (Gosport) Goodhart, Philip McMaster, Stanley
Benyon, W. Goodhew, Victor Macmillan, Maurice (Farnham)
Berry, Hn. Anthony Gorst, John McNair-Wilson, Michael
Biffen, John Gower, Raymond McNair-Wilson, Patrick (New Forest)
Biggs-Davison, John Grant, Anthony (Harrow, C.) Maddan, Martin
Blaker, Peter Gray, Hamish Madel, David
Boardman, Tom (Leicester, S.W.) Green, Alan Maginnis, John E.
Body, Richard Griffiths, Eldon (Bury St. Edmunds) Marples, Rt. Hn. Ernest
Boscawen, Robert Grimond, Rt. Hn. J. Marten, Neil
Bossom, Sir Clive Grylls, Michael Mather, Carol
Bowden, Andrew Gummer, Selwyn Maude, Angus
Boyd-Carpenter, Rt. Hn. John Gurden, Harold Maudling, Rt. Hn. Reginald
Braine, Bernard Hall, Miss Joan (Keighley) Mawby, Ray
Bray, Ronald Hall, John (Wycombe) Maxwell-Hyslop, R. J.
Brewis, John Hall-Davis, A. G. F. Meyer, Sir Anthony
Brocklebank-Fowler, Christopher Hamilton, Michael (Salisbury) Mills, Peter (Torrington)
Brown, Sir Edward (Bath) Hannam, John (Exeter) Mills, Stratton (Belfast, N.)
Bruce-Gardyne, J. Harrison, Brian (Maldon) Miscampbell, Norman
Bryan, Paul Harvey, Sir Arthur Vere Mitchell,Lt.-Col.C.(Aberdeenshire,W)
Buchanan-Smith, Alick (Angus,N&M) Haselhurst, Alan Mitchell, David (Basingstoke)
Buck, Antony Havers, Michael Moate, Roger
Bullus, Sir Eric Hawkins, Paul Molyneaux, James
Butler, Adam (Bosworth) Hay, John Money, Ernie
Carlisle, Mark Hayhoe, Barney Monks, Mrs. Connie
Cary, Sir Robert Heseltine, Michael Montgomery, Fergus
Channon, Paul Hicks, Robert More, Jasper
Chapman, Sydney Higgins, Terenece L. Morgan, Geraint (Denbigh)
Chichester-Clark, R. Hiley, Joseph Morgan-Giles, Rear-Adm.
Churchill, W. S. Hill, John E. B. (Norfolk, S.) Mudd, David
Clark, William (Surrey, E.) Hill, James (Southampton, Test) Murton, Oscar
Clarke, Kenneth (Rushcliffe) Holland, Philip Nabarro, Sir Gerald
Cockeram, Eric Holt, Miss Mary Neave, Airey
Cooke, Robert Hooson, Emlyn Nicholls, Sir Harmar
Coombs, Derek Hordern, Peter Normanton, Tom
Cooper, A. E. Hornby, Richard Nott, John
Cormack, Patrick Hornsby-Smith,Rt.Hn.Dame Patricia Onslow, Cranley
Costain, A. P. Howe, Hn. Sir Geoffrey (Reigate) Oppenheim, Mrs. Sally
Critchley, Julian Howell, David (Guildford) Orr, Capt. L. P. S.
Crouch, David Howell, Ralph (Norfolk, N.) Osborn, John
Crowder, F. P. Hunt, John Owen, Idris (Stockport, N.)
Curran, Charles Hutchison, Michael Clark Page, John (Harrow, W.)
Dalkeith, Earl of Iremonger, T. L. Parkinson, Cecil (Enfield, W.)
d'Avigdor-Goldsmid, Sir Henry James, David Percival, Ian
d'Avigdor-Goldsmid, Maj.-Gen. Jack Jenkin, Patrick (Woodford) Pike, Miss Mervyn
Dean, Paul Jessel, Toby Pink, R. Bonner
Dighy, Simon Wingfield Johnson Smith, G. (E. Grinstead) Pounder, Rafton
Dodds-Parker, Douglas Jopling, Michael Powell, Rt. Hn. J. Enoch
Drayson, G. B. Kaberry, Sir Donald Price, David (Eastleigh)
du Cann, Rt. Hn. Edward Kellett, Mrs. Elaine Proudfoot, Wilfred
Dykes, Hugh Kershaw, Anthony Pym, Rt. Hn. Francis
Eden, Sir John Kilfedder, James Quennell, Miss J. M.
Edwards, Nicholas (Pembroke) King, Evelyn (Dorset, S.) Raison, Timothy
Elliot, Capt. Walter (Carshalton) King, Tom (Bridgwater) Ramsden, Rt. Hn. James
Elliott, R. W. (N'c'tle-upon-Tyne,N.) Kinsey, J. R. Redmond, Robert
Emery, Peter Kirk, Peter Reed, Laurance (Bolton, E.)
Eyre, Reginald Kitson, Timothy Rees, Peter (Dover)
Farr, John Knight, Mrs. Jill Rees-Davies, W. R.
Fell, Anthony Knox, David Renton, Rt. Hn. Sir David
Fenner, Mrs. Peggy Lambton, Antony Rhys Williams, Sir Brandon
Finsberg, Geoffrey (Hampstead) Lane, David Ridley, Hn. Nicholas
Fisher, Nigel (Surbiton) Langford-Holt, Sir John Ridsdale, Julian
Fletcher-Cooke, Charles Legge-Bourke, Sir Harry Rippon, Rt. Hn. Geoffrey
Roberts, Michael (Cardiff, N.) Stodart, Anthony (Edinburgh, W.) Walder David (Clitheroe)
Roberts, Wyn (Conway) Stoddart-Scott, Col. Sir M. Walker Rt. Hn. Peter (Worcester)
Rodgers, Sir John (Sevenoaks) Stokes, John Walker-Smith Rt. Hn. Sir Derek
Rossi, Hugh (Hornsey) Stuttaford, Dr. Tom Wall, Patrick
Rost, Peter Sutcliffe, John Walters, Dennis
Royle, Anthony Tapsell, Peter Ward, Dame Irene
Russell, Sir Ronald Taylor, Sir Charles (Eastbourne) Warren, Kenneth
St. John-Stevas, Norman Taylor, Frank (Moss Side) Wells, John (Maidstone)
Scott-Hopkins, James Taylor, Robert (Croydon, N.W.) White, Roger (Gravesend)
Sharples, Richard Tebbit, Norman Wiggin, Jerry
Shaw, Michael (Sc'b'gh & Whitby) Temple, John M. Wilkinson, John
Shelton, William (Clapham) Thomas, John Stradling (Monmouth) Wolrige-Gordon, Patrick
Simeons, Charles Thompson, Sir Richard (Croydon, S.) Woodhouse, Hn. Christopher
Skeet, T. H. H. Tilney, John Woodnutt, Mark
Smith, Dudley (W'wick & L'mington) Trafford, Dr. Anthony Worsley, Marcus
Soref, Harold Trew, Peter Wylie, Rt. Hn. N. R.
Speed, Keith Tugendhat, Christopher Younger, Hn. George
Spence, John Turton, Rt. Hn. R. H.
Sproat, Ian van Straubenzee, W. R. TELLERS FOR THE NOES:
Stainton, Keith Vickers, Dame Joan Mr. Bernard Wetherill and
Stanbrook, Ivor Waddington, David Mr. Walter Clegg.
Stewart-Smith, D. G. (Belper)


Mr. James A. Dunn (Liverpool, Kirkdale)

I beg to move Amendment No. 864, in page 82, line 39, after 'break', insert: or otherwise interfere with'.

The Deputy Chairman

Order. I think that it would be for the convenience of the Committee to take at the same time Amendment No. 865, in line 41, after 'broken', insert: or otherwise interfered with'.

Mr. Dunn

The Clause, like Clause 117, has its problems for those who are not specialists in legal jargon, who can find the going very difficult.

I wish to bring to the notice of the Solicitor-General and his colleagues certain points and to ask for special consideration to be given to the issues I shall raise now. My remarks will relate to both Amendments.

The Clause says that any intervention in an industrial dispute will be in violation of some of its principles. Many problems flow from that. Any interruption, any intervention, any sympathetic support could be classified as tort.

Dealing with Amendment No. 866, the Solicitor-General indicated with some clarity that the provisions of the Clause still make such tort actionable under certain circumstances. I take it that this would cover words, whether written or oral, or any action that could be classified as inducing, persuading or causing in any manner not only a breach of contract but an interruption of the contract acts which, while not specifically being interpreted as breaking the contract or interrupting it temporarily, constitute an offence by the very fact that persuasion is used.

I am sure that the hon. and learned Gentleman did not mean that this provision should be incorporated in the Bill. I have known him for some time. I often disagree with him, but I never doubt that his wish for good law has always been sacrosanct to him and that he would not wish to leave any dubiety resulting from words for which he may be held to be responsible.

I recall some of the things said about Clause 86, when we were trying to consider sympathetic action, secondary sympathetic action, embargoes, picketing and even protests. There was a clear answer from the hon. and learned Gentleman then that secondary actions were an offence unless the trade union concerned had decided to take action which could be classified as not unfair. But if the trade union or group of workers took any action which was not sanctioned by, or at the direction of, a registered trade union, they would be in default under the Bill.

10.30 p.m.

Under Clause 118, any expression of opinion in relation to secondary action, any boycott, any picketing, any combined action or even any individual action could be interpreted as sympathy and support. In these circumstances, I ask the hon. and learned Gentleman to look at the matter again. My judgment is based upon the Torquay hotel decision by Lord Denning. The advice given to me by people who know more about the matter than I is that anyone in breach in the way I have indicated would be held responsible under the law of tort. I know that this is not the intention and the Amendment would clarify the situation.

The Solicitor-General

I thank the hon. Member for Liverpool, Kirkdale (Mr. James A. Dunn) for the way in which he moved the Amendment. He has identified a point on which there may be room for reconsideration. The same point is made by Professor Wedderburn in his book, "The Worker and the Law", when he draws attention to the potential for extension of the law of tort deriving from Lord Denning's judgment.

The objective of Clause 118 is to exclude from the ordinary court proceedings in respect of inducing breach of contract or comparable things in the context of a trade dispute. If there are to be any remedies in respect of such matters, they are to be found under this Bill, under Clauses 85 to 87. That is where the Government intend the remedies to arise. We do not intend a fresh crop of unforeseeable remedies to arise in the ordinary courts in the law of tort, and that is what Clause 118 is designed to prevent.

In so far as it reproduces Section 3 of the 1906 Act, it would have been all right for that purpose, but the hon. Gentleman suggests—and this is the extent to which his point has force—that it may no longer be all right if interference with the performance of the provisions of a contract is to be the foundation of a new series of actions in the ordinary courts.

The Amendment might not present the right way of preventing a growth of that kind, but the hon. Gentleman has identified a problem which the Government want to look at again, the intention being to ensure that the Clause is a secure frontier in the ordinary courts in that the remedies, right or wrong, which the Goernment are putting forward in respect of unfair industrial actions should arise in the N.I.R.C. only.

In view of my statement that we shall look at the wording again with these two Amendments in mind but without any commitment to accepting any particular form of words in trying to improve the Clause to meet the point which could arise from the Torquay judgment, I hope that the hon. Gentleman will feel that his Amendment need not be pressed to a Division.

Mr. Dunn

I accept the hon. and learned Gentleman's assurance. I would like the matter to be looked at again.

I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Mr. Rose

I beg to move Amendment No. 870, in page 83, line 1, leave out: 'For the avoidance of doubt'.

The Deputy Chairman

It may be for the convenience of the Committee if we also discuss Amendment No. 871, in page 83, line 4, after 'business', insert 'contract'.

Mr. Rose

As the Solicitor-General has understood the argument of my hon. Friend the Member for Liverpool, Kirkdale (Mr. Dunn) about "otherwise interfered with", I hope that he will also understand the problem posed here by the words "for the avoidance of doubt" because of recent decision in Stratford v. Lindley and Rookes v. Barnard.

As we want to make progress tonight, I will not now go into detail, but the Solicitor-General will know that there are 33 pages in the latest text book on the law in this regard. There is much doubt about the state of the law with regard to Section 3 and the protection offered. I hope that the hon. and learned Gentleman will be able to undertake that by Report he will have considered the implications of these two cases. I say no more than that now in view of his response to my hon. Friend.

The Solicitor-General

I cannot adopt such an immediately forthcoming attitude to these Amendments because, so far as I have been able to analyse their effect, they would go beyond merely preventing the development of new heads of tort liability and would go further than would be justified. The hon. Member has moved the Amendment very briefly and I make no complaint of that. but he has not fully expounded the effect and I may not fully appreciate it. I shall certainly look at it, but I cannot show anything like the same kind of implied willingness to make any change on these lines, because the argument may not be as valid as the hon. Member thinks.

Certainly I will consider his suggestion, but at the moment I do not think that it is likely to lead to any change in the position. However, he may feel satisfied that he has drawn my attention to it and it will deserve scrutiny on that ground alone.

Mr. Rose

I am obliged to the hon. and learned Gentleman. I have drawn his attention to the matter. I am sure that he will look at the decisions and some of the dicta in these two cases and draw certain conclusions about the uncertainty in the law. As the Report stage will give us an opportunity to debate the matter, I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 118 ordered to stand part of the Bill.

Forward to