GAS, WATER AND ELECTRICITY WORKERS (Hansard, 23 February 1971)

§ Mr. McNamara
One of the Government's arguments in support of the Bill is that this Clause is one of the great liberating Clauses which suddenly lifts from the shoulders of people in the electricity supply, gas and water industries some of the penalties which they have borne as a result of the Conspiracy and Protection of Property Act, 1875.
It used to be argued that everybody except workers in these key industries, public utilities, were able to go on strike. One can only assume that the power workers' go-slow and other industrial actions have shown the foolishness of this provision in that it could not stop effective industrial action, and the Government, therefore, have lifted the burden from these workpeople.
Although the Government have withdrawn Section 4 of the 1875 Act, they have not withdrawn Section 5, which is equally damaging, in that it creates a special offence where the general law already creates an offence, so that a person can be liable under the ordinary law of the land and also liable under Section 5 within the scope of being a trade unionist and breaking a contract. Section 5 states: Where any person wilfully and maliciously breaks a contract of service or of hiring, knowing or having reasonable cause to believe that the probable consequences of his so doing, either alone or in combination with others … a number of combinations of serious offences result from that action.
The gravamen of our argument is that if we are repealing Section 4 we should 476 repeal also Section 5, because much of what is contained in Section 5 will already be covered in the emergency procedures laid down in the Bill. If the Government are claiming to lift the burden, they should lift the whole burden and leave the person open only to the law of the land.
Let us see how far the Government's claim to lift the burden from workers is fulfilled. My hon. Friend the Member for Kingston upon Hull, East (Mr. Prescott) spoke about the problems facing the trade union officials dealing with the Merchant Marine and the National Union of Seamen. I should like to look at the ordinary trawlerman on a trawler sailing out of Hull or any other fishing port, and to deal with the problem which engaged the last Parliament on the Merchant Shipping Bill.
Although the Government say that they are lifting from the shoulders of workpeople many of the penalties of going on strike, they are not lifting the penalties from the important group of workpeople organised by my trade union. For example, under the law as it stands, a person on breaking his contract of service could be "done" by his skipper, "done" by the industry, and "done" under the Merchant Shipping Act, and in the end "done" under the Industrial Relations Bill. By "done" I mean that he may be subject to a variety of penalties, all for the same act.
I urge the Solicitor-General to look seriously at the broad offence of this Clause, to take the logic of the Clause right through and abolish Section 5 of the 1875 Act, and to do away with all penal Clauses so far as they affect trawler-men and seamen. There would then be no distinction between the way in which trawlermen and seamen on the one hand and ordinary workers on the other hand are treated.

§ The Solicitor-General
I shall not follow the hon. Member for Kingston upon Hull, North (Mr. McNamara) into the territory of the Merchant Shipping Act, primarily because I suspect it would be out of order to do so on the Question, That the Clause stand part of the Bill, but also because that legislation was considered last year.
The hon. Member for Doncaster (Mr. Harold Walker) said on 11th March, 1970, that the surviving provisions … run parallel with the situation in most other countries. It is my understanding that, when the Bill has been enacted"— he was referring to the Merchant Shipping Bill— our provisions will probably be more liberal than those of almost any other country, and certainly less rigorous."—[OFFICIAL REPORT, 11 th March, 1970; Vol. 797, c. 1420.]

§ Mr. McNamara
I am aware that my hon. Friend said that, but that was not accepted by me or by my trade union. As to whether they are more liberal or less liberal, I would say that they are still illiberal.

§ The Solicitor-General
I appreciate that, but they were so described by the hon. Member for Doncaster a little under 12 months ago. The present Government have also renewed the undertaking to see how the provisions work after a period of years, and in the context of that Act so recently on the Statute Book the matter has been taken as far as it can be.

§ Mr. Harold Walker
We must get this right, and I am sure that the hon. and learned Gentleman does not want to do me an injustice or to distort the situation. He no doubt has accurately quoted me, but I hope he will turn his eyes to the latter part of that speech where I made it clear that, in spite of all I had said in defence of the then Government's position, none the less we would be sympathetic as a Government to the views of the industry if it wanted to go along the road then suggested by a number of my hon. Friends, particularly my hon. Friend the Member for Kingston upon Hull, North.

§ The Solicitor-General
I am sure the hon. Gentleman is accurately summarising the effect of what he said. That was the position as it emerged on 11 th March last year. I believe I am right in saying 478 —this is taking me outside not only the rules of order on this Clause, but outside the extent of my detailed knowledge—that the Act is not yet in force in all respects.

§ Mr. Harold Walker
There are no regulations.

§ The Solicitor-General
No regulations have been made under it and it is not yet in force. Therefore, it is a little early to press for a review of that which was brought in only last year.

§ Mr. McNamara
I did not accept it then and I do not now.

§ The Solicitor-General
I appreciate that the hon. Gentleman did not accept it then and does not now; he has made that clear. I think I have followed the matter far enough in the context of this debate.
The general proposition on this Clause is to reduce as far as possible the impact of the criminal law in industrial relations. The Donovan Commission, on balance, inclined against the repeal of Sections 4 and 5 of the 1875 Act because it thought they had a marginal deterrent effect. The Government feel that it is only in the special and rather more serious case in regard to Section 5 of the 1875 Act that there is any case for not disturbing that one area of the criminal law. There is no special reason in the more complex and sophisticated conditions of modern society for protection of the gas, electricity and water industries as provided in Section 4, but it is felt that Section 5 should survive, which is where any person … wilfully … breaks a contract of service or of hiring, knowing or having reasonable cause to believe that the probable consequences of his so doing, either alone or in combination with others, will be to endanger human life, or cause serious bodily injury, or to expose valuable property … to destruction or serious injury …". To that extent we accept the Donovan Commission's recommendations that that should remain on the Statute Book. I make plain that that does not apply only to somebody working under a contract of employment or only to the trade union or trade union members. It applies to anyone who wilfully or maliciously breaks a contract of service or of hiring. Anyone, employed or not, can avoid the risk of prosecution under Section 5 by giving due notice to determine his contract.
479 We have moved further than the Donovan Commission suggested, and, I think, as far as is right and sensible within the context of the 1875 Act and this Bill, to reduce the impact of the criminal law as we believe that it would be right to do.

§ Mrs. Castle
None the less, it is important to place on record that, contrary to the impression that the Government have been anxious to give in their somewhat generalised public statements, they are not removing the criminal law entirely from any consideration of industrial relations. As Donovan points out, Section 5 of the 1875 Act, which the Government are not repealing, imposes criminal liability over a wider area than Section 4. Persons who are not covered by Section 4, as Donovan points out, might well be within Section 5, and the Report takes instances from Citrine's "Trade Union Law" suggesting that people who might be covered by Section 5 include drivers, signal men, pilots, surgeons, hospital staff, sewage workers, haulage contractors, and so on. This wide and far-reaching Section is being retained by the Government and, therefore, the Government are retaining criminal liability in their Bill.

§ Mr. Tom King
The right hon. Lady did not reach the sentence in the Donovan Report which might be said to underline so much of what has been said by my right hon. and hon. Friends about the framework of law that we are seeking to set up without continually drawing attention to the sanctions involved. The right hon. Lady referred to what Donovan said about the criminal law which has been in existence since 1875. However, the Report goes on: So far as we are aware, however, there has not yet been a prosecution for an offence under this section.

§ Mrs. Castle
I am aware of that, but, broadly speaking, that could apply to Section 4 as well. We have had an interesting example recently where Section 4, which the Government are making such a virtue of repealing, might well have been considered to apply. I refer to the recent power workers' go-slow. As the Report of the Wilberforce Court of Inquiry makes clear, the employers in that case claimed that the 480 employees were in breach of their rules and, therefore, in breach of their contract of employment. Although a criminal action lay against the power workers and although there was a great outcry against the inconvenience and harm being caused by the go-slow, there was never any suggestion that the employers should apply Section 4. They did not apply it because they knew that what they wanted was not a criminal action but a settlement.
The Government are making a great virtue out of very little, and the principle that I have suggested remains intact, namely, that the Government are retaining an element of criminal liability in this Clause.

§ The Solicitor-General
But it is right to acknowledge that neither the Donovan Commission nor, I understand, the right hon. Lady proposed to alter either Section 4 or Section 5. We are retaining a very limited half of existing criminal liability for cases where serious injury is threatened, and we accept that Section 4 should go. The reality of the matter is that we have decided on withdrawal to the full extent that we think right.

§ Mrs. Castle
In other words, the hon. and learned Gentleman retains criminal liability where he thinks that it might be of use. That is the simple matter of principle involved.