HC Deb 23 February 1971 vol 812 cc429-44
Mr. John Fraser

I beg to move Amendment No. 859, in page 82, line 19, leave out 'may' and insert 'shall'.

There ought to be another Amendment to the Clause, to leave out "may" in line 4. It has not been tabled, and I make that point clear in case it appears that there is inconsistency.

The Clause states that if proceedings are taken in the High Court other than the Industrial Court division, the court may stay the proceedings if they are proceedings in tort, if the act in respect of which a complaint is made could be proceeded with in the Industrial Court.

The court is given a discretion whether or not it stays the proceedings. That leaves one open to the suspicion that there could be concurrent jurisdiction in two divisions of the High Court in respect of the same act. It may be that the court would exercise its discretion the other way and not stay the proceedings in tort if taken in the Queen's Bench Division. This could mean that a trade union official or member was liable to an action in tort in the Queen's Bench Division and, because the court had not exercised discretion to stay those proceedings, could also be liable to proceedings for unfair industrial practice in the National Industrial Relations Court.

It is not the purpose of the Amendment to sanction the existence of the Industrial Relations Court, but it is only by putting down the Amendment that we can draw attention to this fact.

The Clause needs explanation. It says that: Where in any court proceedings in tort are brought against a person in respect of any act done by him or on his behalf, the court may stay the proceedings… The word used is "tort". On the other hand, Clause 119 states: The Industrial Court shall not have any jurisdiction except that which is expressingly conferred on it by or under this Act; and accordingly that Court shall not entertain any proceedings in tort. It seems clear that again there is an overlap of jurisdiction and that people may be exposed to two actions in two different courts. Whilst Clause 119 says that the Industrial Court cannot entertain an action in tort, Clause 117 says that the High Court may stay an action in tort whenever remedies lie in the Industrial Court. It is clear that there is an overlap. We want some examples from the Government as to what these kinds of action are.

Another reason for proposing the word "shall" instead of "may" is that it is not beyond the wit of lawyers and judges to invent some new torts. Torts have been invented in the past arising out of the provisions of, say, the Factories Acts. The Factories Acts contain provision that machinery has to be guarded. They do not say that that creates a civil liability between one person and another, but a hybrid known as a statutory tort has been invented, where a Statute has created a criminal offence for the workpeople or the community at large, and the courts have invented a civil wrong after that which gives rise to an action for damages. Therefore, although the Factories Acts make it a criminal offence not to fence machinery, people can properly bring actions in civil courts for failure to fence. According to my understanding, that is what is known as a statutory tort. That is fine.

The Bill creates all kinds of illegal acts. Some of them are called unfair industrial practices. Some are called things that are void. For instance, the closed shop is made void. Others are called general principles. They all create an aura of legality or illegality about a whole series of activities which are undertaken in industry.

We have no assurance that there will not be a new tort of conspiracy to commit an unfair industrial practice. It would not be beyond the wit of a lawyer or a judge to invent such a tort. Therefore, under the Clause it would be possible for one set of people to be sued in the National Industrial Relations Court for damages—or compensation, as the Government care to put it—for an unfair industrial practice and for the same set of people to be sued in the Queen's Bench Division for damages to commit an unlawful act.

Although the Government have said from time to time that the provisions of the Bill do not create actions for damages against individual workmen, if the concept of conspiracy, which has been known in the law for some time and which was used in Rookes v. Barnard to cover some extraneous illegal act which was not in itself actionable but which became actionable when latched on to something, is pursued it will be possible for individual workers who have come out on strike to be sued for damages for tort as well as there being proceedings against officials, a trade union or an organisation of workers in the National Industrial Relations Court.

The Amendment is addressed to that problem. We are against the National Industrial Relations Court, but we must have a hook on which to hang this discussion.

The Solicitor-General

The argument advanced by the hon. Member for Norwood (Mr. John Fraser) is obviously one which it is possible within the context of the National Industrial Relations Court to advance perfectly respectably and with anxiety. I take the hon. Gentleman's point to the effect that logically the same Amendment should be made in line 4 of Clause 117.

The reason "may" is used in each case rather than "shall" is certainly not to leave the ordinary courts with the opportunity of foraging round creating new torts and new remedies in respect of industrial relations matters. The object of the Clause is the avoidance of encroachment on jurisdiction of Industrial Court or of industrial tribunals". The idea of it is, together with Clause 118, to keep proceedings which have an industrial relations flavour about them out of the ordinary courts. The important thing is to look at Clause 118, because that is the principal effective excluder of the jurisdiction of the ordinary court. Clause 118(1,a) extends more widely than in relation to contracts of employment. The remaining subsections of that Clause are intended to exclude industrial relations torts or proceedings from the ordinary courts. The provisions of Clause 117 are designed for two purposes. They are designed to meet the point the hon. Gentleman has in mind, namely, the possibility of new torts being invented in an industrial relations situation. Therefore, on that view, the hon. Gentleman might argue that "shall" should be there to ensure that any such new torts should be kept within the industrial relations network.

Mr. John Fraser

No—not invented at all.

The Solicitor-General

That may be right. I can see the point of that. If a new tort begins to be invented in relation to an industrial relations matter, we are not in favour of encouraging that kind of invention or growth when it can be dealt with in the context of the National Industrial Relations Court, although there may be a difference of view between both sides of the Committee about that. We feel that, if any new grievance is felt, if it can be formulated within the context of an industrial practice, the Industrial Relations Court is the right place to hear it. One would not be unsympathetic to the word "shall", if that were the only object of the exercise.

9.0 p.m.

But there is this difficulty, that there will be some borderline cases where it is not clear at the outset whether they have an industrial relations quality or not. To take an obvious example, there have been many cases in the past where the question has turned on whether or not the proceedings relate to a trade dispute. Under these provisions as well, if proceedings are brought by a plaintiff who says, "These are nothing to do with an industrial dispute in the context of this Bill", and the defendant says, "Yes they are', it would not be clear at that point which court they should be in.

It is therefore sensible, when there could be this overlap of jurisdiction, to allow them to be started in the ordinary court but for that court to have the power, if it became clear that it was an idustrial dispute, because that was a case which could be presented as an unfair industrial practice, to stay those proceedings and allow them to be brought, if at all, in the Industrial Relations Court or the industrial tribunal.

It is because one cannot identify in advance the way in which some such case might be formulated, it is because one wants to be certain that the plaintiff would not fall between two stools and that the defendant would not be sued in two courts at the same time, that the word "may" is included.

It is possible now, under the rule-making powers of the ordinary High Court, to make rules spelling out more clearly the cases in which a stay should be granted, in other words, to direct the discretion of the court to meet the points which the hon. Member has in mind. But it is not the intention to leave the way open by means of Clause 117 for new inventions of industrial conspiracy which would put the introduction of new actions in respect of industrial relations matters in the ordinary courts. It is designed only to meet these mixed borderline cases.

Sir Edward Brown (Bath)

My hon. and learned Friend's interpretation is acceptable to this side, at least for the time being, but when the matter reaches the court, may we be assured that the judge would not interpret the word "may" as giving him the right to go up or go back?

The Solicitor-General

I cannot of course give that assurance. But I can assure my hon. Friend, however, that rules can be made under the existing rules of the Supreme Court, and it would be my right hon. and noble Friend's intention to make such rules, making it plain that this discretion should be exercised in such a way as to ensure that the ordinary courts do not take jurisdiction in respect of industrial relations matters. But the effective excluder of the ordinary courts from industrial cases is substantially already there in Clause 118. This is designed as a vital check to ensure that any other case which comes around the check can be steered back into the Industrial Relations Court.

I hope that the hon. Member for Norwood (Mr. John Fraser) will acknowledge that, if one included the word "shall", it might be possible for proceedings to be stayed in the ordinary court as a matter of compulsion, and yet for there to be no remedy in respect of any other court.

There may be cases which could, at first sight, appear to have an industrial flavour but which might turn out not to be in that category. It might be possible for cases to be presented in one way rather than the other the first time round, and it is because one cannot foresee all these possibilities that one must leave this discretion to the ordinary courts, as provided by the word "may".

The intention of the Government in this Clause is to ensure that industrial relations cases are not heard in the ordinary courts but in the special Industrial Relations Court which is being established to deal with them.

Mr. Ian Percival (Southport)

The law and lawyers having been under fire for several months, one might be permitted a moment to take up a point which was made by the hon. Member for Norwood (Mr. John Fraser). His criticism is that the courts have in the past invented new torts.

The Committee should bear in mind that the hon. Gentleman is talking about the adaptation of the law of tort to embrace a tort called "breach of statutory duty", a sphere of the law which has been of enormous benefit to employees, and rightly so, because the courts have said, in effect, "It is all very well to have criminal offences, but that does not help the man who has been injured. We will see that the injured man has a remedy, and not just in negligence. We will say that the basis of the law of tort is that where there is a duty and damage, the damaged person should be recompensed, and we will apply that to the industrial scene."

I hope that hon. Gentlemen opposite will remember that here is an instance of where the law was not inventing something for the fun of it but was adapting a philosophy of the common law to provide a remedy for people who would not otherwise have had it. If that is invention, then I hope that the judges of the Queen's Bench Division will go on inventing as hard as they can for as long as they are allowed to do so.

Question put, That the Amendment be made:—

Division No. 191. AYES [9.07 p.m.
Abse, Leo Freeson, Reginald Mason, Rt. Hn. Roy
Albu, Austen Galpern, Sir Myer Mayhew, Christopher
Allaun, Frank (Salford, E.) Garrett, W. E. Meacher, Michael
Allen, Scholefield Gilbert, Dr. John Mellish, Rt. Hn. Robert
Archer, Peter (Rowley Regis) Ginsburg, David Mendelson, John
Armstrong, Ernest Golding, John Mikardo, Ian
Ashley, Jack Gourlay, Harry Millan, Bruce
Ashton, Joe Grant, George (Morpeth) Miller, Dr. M. S.
Atkinson, Norman Grant, John D. (Islington, E.) Milne, Edward (Blyth)
Bagier, Gordon A. T. Griffiths, Eddie (Brightside) Molloy, William
Barnett, Joel Griffiths, Will (Exchange) Morgan, Elystan (Cardiganshire)
Beaney, Alan Hamilton, James (Bothwell) Morris, Alfred (Wythenshawe)
Bennett, James (Glasgow, Bridgeton) Hamilton, William (Fife, W.) Morris, Charles R. (Openshaw)
Bidwell, Sydney Hamling, William Morris, Rt. Hn, John (Aberavon)
Bishop, E. S. Hannan, William (G'gow, Maryhill) Moyle, Roland
Blenkinsop, Arthur Hardy, Peter Mulley, Rt. Hn. Frederick
Boardman, H. (Leigh) Harrison, Walter (Wakefield) Murray, Ronald King
Booth, Albert Hart, Rt. Hn. Judith Ogden, Eric
Bradley, Tom Hattersley, Roy O'Halloran, Michael
Brown, Bob (N'c'tle-upon-Tyne,W.) Heffer, Eric S. O'Malley, Brian
Brown, Hugh D. (G'gow, Provan) Hilton, W. S. Oram, Bert
Brown, Ronald (Shoreditch & F'bury) Horam, John Orme, Stanley
Buchan, Norman Houghton, Rt. Hn. Douglas Oswald, Thomas
Butler, Mrs. Joyce (Wood Green) Howell, Denis (Small Heath) Owen, Dr. David (Plymouth, Sutton)
Callaghan, Rt. Hn. James Huckfield, Leslie Paget, R. T.
Campbell, I. (Dunbartonshire, W.) Hughes, Rt. Hn. Cledwyn (Anglesey) Palmer, Arthur
Cant, R. B. Hughes, Mark (Durham) Pannell, Rt. Hn. Charles
Carmichael, Neil Hughes, Roy (Newport) Parker, John (Dagenham)
Carter, Ray (Birmingh'm,Northfield) Hunter, Adam Parry, Robert (Liverpool, Exchange)
Carter-Jones, Lewis (Eccles) Irvine,Rt.Hn.SirArthur(EdgeHill) Pavitt, Laurie
Castle, Rt. Hn. Barbara Janner, Greville Peart, Rt. Hn. Fred
Clark, David (Colne Valley) Jay, Rt. Hn. Douglas Pendry, Tom
Cocks, Michael (Bristol, S.) Jeger, Mrs.Lena(H'b'n&St.P'cras,S.) Pentland, Norman
Cohen, Stanley Jenkins, Hugh (Putney) Perry, Ernest G.
Coleman, Donald John, Brynmor Prentice, Rt. Hn. Reg.
Concannon, J. D. Johnson, Carol (Lewisham, S.) Prescott, John
Conlan, Bernard Johnson, James (K'ston-on-Hull,W.) Price, J. T. (Westhoughton)
Corbet, Mrs. Freda Johnson, Walter (Derby, S.) Probert, Arthur
Cox, Thomas (Wandsworth, C.) Jones, Barry (Flint, E.) Rankin, John
Crawshaw, Richard Jones, Dan (Burnley) Reed, D. (Sedgefield)
Cronin, John Jones,Rt.Hn.SirElwyn(W.Ham,S.) Rees, Merlyn (Leeds, S.)
Crosland, Rt. Hn, Anthony Jones, Gwynoro (Carmarthen) Rhodes, Geoffrey
Crossman, Rt. Hn. Richard Judd, Frank Richard, Ivor
Cunningham, G. (Islington, S.W.) Kaufman, Gerald Roberts, Albert (Normanton)
Dalyell, Tam Kelley, Richard Roberts,Rt.Hn.Goronwy(Caernarvon)
Darling, Rt. Hn. George Kerr, Russell Robertson, John (Paisley)
Davidson, Arthur Kinnock, Neil Roderick, Caerwyn E.(Br'c'n&R'dnor)
Davies, Denzil (Llanelly) Lambie, David Roper, John
Davies, G, Elfed (Rhondda, E.) Lamond, James Rose, Paul B.
Davies, S. O. (Merthyr Tydfil) Latham, Arthur Rose, Rt. Hn. William (Kilmarnock)
Davis, Clinton (Hackney, C.) Lawson, George Sheldon, Robert (Ashton-under-Lyne)
Deakins, Eric Leadbitter, Ted Shore, Rt. Hn. Peter (Stepney)
Delargy, H. J. Lee, Rt. Hn, Frederick Short,Rt.Hn.Edward(N'c'tle-u-Tyne)
Dell, Rt. Hn. Edmund Leonard, Dick Short, Mrs. Renée (W'hampton,N.E.)
Dempsey, James Lestor, Miss Joan Silkin, Hn. S. C. (Dulwich)
Doig, Peter Lewis, Arthur (W. Ham N.) Sillars, James
Dormand, J. D. Lewis, Ron (Carlisle) Silverman, Julius
Douglas, Dick (Stirlingshire, E.) Lipton, Marcus Skinner, Dennis
Douglas-Mann, Bruce Lomas, Kenneth Small, William
Driberg, Tom Loughlin, Charles Smith, John (Lanarkshire, N.)
Duffy, A. E. P. Lyon, Alexander W. (York) Spearing, Nigel
Dunn, Jams A. Lyons, Edward (Bradford, E.) Spriggs, Leslie
Dunnett, Jack Mabon, Dr. J. Dickson Stallard, A. W.
Eadie, Alex McBride, Neil Stewart, Donald (Western Isles)
Edwards, Robert (Bilston) McCartney, Hugh Stoddart, David (Swindon)
Edwards, William (Merioneth) McElhone, Frank Stonehouse, Rt. Hn. John
Ellis, Tom McGuire, Michael Strang, Gavin
English, Michael Mackenzie, Gregor Strauss, Rt. Hn. G. R.
Evans, Fred Mackie, John Summerskill, Hn. Dr. Shirley
Fernyhough, E. Mackintosh, John P. Swain, Thomas
Fisher, Mrs.Doris(B'ham,Ladywood) Maclennan, Robert Thomas,Rt.Hn.George (Cardiff,W.)
Fitch, Alan (Wigan) McMillan, Tom (Glasgow, C.) Thomas, Jeffrey (Abertillery)
Fletcher, Ted (Darlington) McNamara, J. Kevin Thomson, Rt. Hn. G. (Dundee, E.)
Foley, Maurice MacPherson, Malcolm Tinn, James
Foot, Michael Mahon, Simon (Bootle) Tomney, Frank
Ford, Ben Mallalieu, J. P. W. (Huddersfield, E.) Tuck, Raphael
Forrester, John Marquand, David Urwin, T. W.
Fraser, John (Norwood)

The Committee divided: Ayes 250, Noes 281.

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

I beg to move Amendment No. 861, in page 82, line 35, at end add: () Any applicant on an ex-parte motion in the High Court or Court of Session shall give an undertaking that he knows of no circumstances by reason of which the National Industrial Relations Court or an Industrial Tribunal could have jurisdiction over the act for which an injunction or interdict is sought-Furthermore, any ex-parte injunction or interdict may be given in the High Court or Court of Session in any action involving or touching upon any workers' organisation. My hon. Friend the Member for Norwood (Mr. John Fraser has drawn attention to the fact that we are now entering a different field, that of overlapping jurisdiction, in which considerable difficulty may arise for the court and those before it, particularly as the court may well not know all the facts when it is first seized of a case. It may be very difficult to know whether a case should be taken before the High Court, the Industrial Tribunal or the National Industrial Relations Court. This may well lead to a situation in which we have to have a Bill creating a new court, a conflicts court to decide before which court a case should be taken. That occurs in some Continental systems.

The Amendment arises from this difficulty. The purpose is to ensure that the High Court is satisfied when it deals with a matter that it is not one that should be dealt with by the N.I.R.C. It is in a difficult position, because the limitations on proceedings in tort in the High Court are not, as they are with the N.I.R.C., limited to hearings where both parties are present. Before the High Court there may be ex-parte proceedings, with no one to argue that the matter should go to the N.I.R.C.

The Government have accepted the principle that ex-parte injunctions should not be granted by the N.I.R.C. Therefore, I ask the Solicitor-General at least to undertake to introduce a provision on Report with regard to ex-parte proceedings. The least the Government can do is to accept that if such a provision applies to the N.I.R.C. it is imperative to ensure that an injunction is not granted ex-parte in the High Court if the matter is one that the High Court would subsequently have to send before the N.I.R.C.

I hope that the hon. and learned Gentleman realises that this is not a political point. It is a legal point of some substance in that a matter may well come before the Industrial Tribunal or the N.I.R.C. at a later stage, and this could bear heavily on the funds of a trade union or on a party who is applying for an ex-parte injunction and who may be forced to go as a defendant later before the High Court. I hope that he will look at this matter very carefully and accept the principle of the Amendment. If he does not, we shall divide the Committee. I think that this is one of those matters on which his inflexibility might yield a little and that he can now make some concession to the Committee.

The Solicitor-General

I am not entirely clear—because the hon. Member for Manchester, Blackley (Mr. Rose) has not explained it, although I make no criticisms of that—whether the Amendment is printed correctly or not. I am not clear about the last sentence, which begins, Furthermore, any ex-parte injunction or interdict may be given … and so on.

Mr. Rose

Perhaps I can help the hon. and learned Gentleman. The words should have been, "an ex-parte injunction". Somehow, a "y" has become attached to "an", making it "any".

The Solicitor-General

I had thought that it might have been meant to be "no" rather than "any" or "an", because that seemed more consistent with the intention of the Amendment, which was designed to limit ex-parte injunctions in industrial matters. But perhaps we can leave that wrapped in obscurity.

I come now to the objective of the Amendment as the hon. Gentleman explained it, and in particular as set out in the first sentence. The objective of the Government in these provisions is set out in paragraph 22(3) of Schedule 2 and is to prevent ex-parte labour injunctions from being granted and to require reasonable steps to be taken to notify the person against whom the application for an injunction has been made. That is expressly set out to be achieved in the ordinary proceedings in the N.I.R.C. There is no doubt about the objective.

If, however, one were to accept the Amendment, in the context of proceedings in the ordinary court it would impose a substantial burden on anyone seeking any kind of ex-parte relief in the High Court, and outside the field of industrial relations, if one always had to specify that the claim one was making gave rise to no circumstances which would accord jurisdiction to the N.I.R.C.

Mr. Rose

Surely the hon. and learned Gentleman realises that, in a matter which does not touch upon industrial relations, the person seeking an injunction would have no difficulty whatever. It is only on these matters which are on the periphery, where there is a possibility of conflict of jurisdiction, that an undertaking would have to be given. It would not affect the law generally but only where there was a possibility ultimately of the matter going before the N.I.R.C. The hon. and learned Gentleman is not making a valid point.

Sir E. Brown

On a point of Order, Mr. Mallalieu. Are we not in a difficulty here? The Chairman has selected an Amendment and, therefore, we must debate it, but the Opposition have said that the sense of the Amendment as printed is different from their intention. [HON. MEMBERS: "No."] The hon. Member for Manchester, Blackley (Mr, Rose) said that a "y" had crept in. The word in the Amendment as printed is "any". Would the Chair be prepared to accept a manuscript Amendment for debate?

The Temporary Chairman

A simple correction is always acceptable. The Amendment seems perfectly well understood by the hon. and learned Solicitor-General at the moment.

The Solicitor-General

I should not make even that claim. I do not want to take a false point, but my hon. Friend the Member for Bath (Sir E. Brown) is quite right to say that there is something slightly odd about debating an Amendment when we are not quite clear what the Amendment is and I am not clear whether the word is "any", "an", or "no". But, if my hon. Friends will support me, I am prepared to deal with the remainder of the Amendment, because the intention of the first sentence at least is clear, and it is to the first sentence that the hon. Member for Blackley has so far spoken.

All I am saying is that to impose a general obligation of this kind across the board in respect of an application for ex-parte relief in the ordinary court would be to impose an additional and unnecessary burden. I appreciate that if it were a case in which someone was seeking an injunction to restrain his wife from taking the children of the family out of the jurisdiction, it would not be difficult to include a pro-forma clause at the end to say that this was a matter not of industrial but of matrimonial relations, on the lines the hon. Gentleman suggested.

But it seems an unnecessary burden to impose, because if a case were to come before the ordinary High Court and it appeared to have an industrial relations flavour and subsequently turned out to be a case which should not be in the High Court at all, the party which tried to pull a fast one, if I may put it like that, by going into the High Court would find within days or hours that an appearance had been entered and it would cease to be ex parte. The point would be made against him that he had sought the wrong kind of relief in the wrong place, and the injunction would be discharged and he would be faced with the prospect of paying the costs of both sides in the ordinary court. So it would be wholly against the interests of a party to seek to proceed in that way.

Similarly, the High Court would see that the proceedings were ill founded, and if it were such a case that the High Court could not detect that and observe it, the requirement as a matter of form that the plaintiff or applicant should state that it was not an industrial relations case would not prevent him from at least trying to have it from the High Court even when he was not entitled to it. While I am not in any sense out of sympathy with what the hon. Gentleman is seeking to achieve, the object is that an industrial relations case should be brought in the Industrial Relations Court, and the provision is that when such cases are brought there should be no ex-parte injunction and reasonable steps should be taken. If anyone tried to get round that either by ignorance or by misconceived guile, launching an industrial relations case in the ordinary court, he would soon find that it was not to his advantage. In other words, he would find himself faced with the prospect of paying costs of either party in the ill-judged and misguided attempt.

Mr. Gower

Is there not another difficulty? Is it not conceivable that a person would desire to go to the High Court for ex-parte relief and yet that case would ultimately be in the jurisdiction of the Industrial Relations Court? Could there not be such circumstances as would prohibit or make it impossible for such a person to give such an undertaking?

The Solicitor-General

The case could arise where it did not appear at the outset as though the case had any industrial relations flavour, and the original application could have been in respect of something like the ordinary contract disputes, but it might later turn out to be an industrial relations matter. The inclusion of a general provision of this kind is unnecessary, because in practice nobody would seek in any case likely to be able to involve the undertaking to take advantage of the alternative remedies. So the Amendment is not necessary in the form in which it has been moved.

Mr. Rose

Although the Solicitor-General says that this is not needed in this form, he has acknowledged that it is needed because he has said that it would not be to the advantage of a person who did this through ignorance or guile. I am sure that there are employers and trade unions with guile, and certainly a lot of people will be ignorant about the provisions of the overlap of jurisdiction. Under the Bill an organisation of workers is not a corporate body and would not have access unless a provision were included.

Sir E. Brown

On a point of order, Mr. Mallalieu. I must come back to this again. My hon. and learned Friend assured me he was only speaking to one part of the Amendment and it was my intention to raise the second part of the Amendment with you since we are debatting an Amendment which is not on the Order Paper. The hon. Gentleman has referred to the second part of the Amendment in a context which he has already admitted is a mistake. Whether it is "an" or "any" should be part of a manuscript Amendment. May we have your assistance on this?

The Temporary Chairman

It is understood that there has been a misprint and that the word is "an".

Mr. Rose

I do not think that it is a matter of substance whether it is "an" or "any". The hon. Member is taking a bad point. This could put a defendant in the position of facing an ex-parte injunction in circumstances where it could be to his disadvantage. I ask the Solicitor-General in the circumstances to be a little more forthcoming.

Amendment negatived.

Clause 117 ordered to stand part of the Bill.

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