HC Deb 23 March 1971 vol 814 cc399-413
Mr. Paul B. Rose (Manchester, Blackley)

I beg to move Amendment No. 126, in page 2, line 36, after 'Parliament', insert proposals for a draft code of practice in order to debate and amend the principles to be embodied in'.

Mr. Deputy Speaker

With this Amendment we can take Amendment No. 127. in page 3, line 6, after 'Commission', insert 'and Parliament'.

Mr. Rose

It is a very sad and perhaps apt commentary on the working of the guillotine that at 12 minutes past eleven o'clock on the final day of the Report stage we on this side are given the opportunity for the very first time to debate one of our own Amendments to the original Bill; and not to the second Bill presented to us by the Secretary of State, who is not in his place, who might well be termed the "Industrial Relations (No. 2) Bill". We have debated 15 new Clauses, but so far we have not been allowed to debate one of our Amendments. Now, less than three-quarters of an hour before the Report stage finishes and the Bill goes to another place, we are allowed to revert to an important matter which was debated to some extent in Committee, when hon. Members on both sides voiced concern that a very important code of practice was not to be debated as part of the Bill, but would be subject to an affirmative Resolution.

That procedure means that the House will have precisely one and a half hours in which to debate a code which is not only to govern fair practice in industry but is to be allowed as evidence in a court of law, and the breach of which will inevitably mean that the person in breach will be held to be guilty of an unfair industrial practice. Not only that, but the Order will not be capable of amendment. Therefore, whether we call this code the "highway code", as did the Under-Secretary of State, or whether we call it the "Marquess of Queensberry rules for trade union bashing", or any other name, we shall, if the Clause goes through unamended, be precluded from debating the principles—

Mr. Adam Butler

If I understood the hon. Gentleman aright, he said that a breach of the code would be an unfair industrial practice, but he will agree that the code has no binding legality.

11.15 p.m.

Mr. Rose

The hon. Gentleman should look carefully at Clause 4, which states … any such code of practice shall be admissible in evidence, and … any provision of such a code of practice which appears to the Court or tribunal to be relevant to any question arising in the proceedings shall be taken into account by the Court or tribunal in determining that question. A breach of the Highway Code invariably results in a conviction, as a visit to any court on any day will demonstrate. Our view is that a breach of this code will almost inevitably result in an adverse decision against the person in breach.

Mr. Butler

Is the hon. Gentleman suggesting that a breach of this code would be an unfair industrial practice?

Mr. Rose

It would result in a finding of unfair industrial practice in the way that a breach of the Highway Code inevitably results in a finding of, say, careless driving or driving without due care. If the hon. Gentleman will read the OFFICIAL REPORT of the debates in Committee he will agree that hon. Members on both sides have put this interpretation on the Bill.

When we refer to a consultative document we recall the consultation we had over the Bill. It is not good enough that everybody in this House has been consulted. We gather that professional organisations have exerted much influence lately. They, along with the C.B.I. and the C.I.R., have been consulted about this code of practice point, but not this House. The Amendment would enable us to spend a whole day, if necessary, considering the code prior to it being put forward as an Order. We could examine it in detail and, if necessary, suggest amendments.

It is a denigration of this House for this code of practice to be debated outside this Chamber with all sorts of organisations, leaving us with a proposed one and a half hours after ten o'clock to debate the issue, and then without the possibility of amending it. I gather that under Clause 3(1) another Order would be necessary if the original Order needed amending.

The Select Committee on Statutory Instruments is concerned over this sort of problem, where parent legislation contains far-reaching powers offering the Government a blank cheque and the House only one and a half hours to consider what is proposed. Unfortunately, before that short debate takes place we will not have the slightest notion of what is contained in the draft code of practice. It illustrates a very serious constitutional danger with regard to subordinate legislation, a danger which ought to commend itself not only to hon. Members on this side of the House who are opposed to the Bill, but also to those who are concerned about the supremacy of Parliament and the dangers of subordinate legislation and of giving a blank cheque to any Government of the day in this way.

Taken with the first Amendment, which would provide for a debate prior to the laying of the Order before the House, there is a second Amendment, No. 127. It follows logically from the first Amendment and the principle is precisely the same: that the drafting of the code would follow consultation with the C.I.R.—that is right and proper, because my right hon. Friend created the C.I.R., which was described by Mr. George Woodcock as the greatest advance in industrial relations in his lifetime. The C.I.R. is already being sabotaged by the Government by the imposition of the N.I.R.C. upon it, which has already led to two resignations. It is right and proper that the C.I.R. should be consulted, but it ought to be also right and proper that the House should be consulted before the draft is laid before it.

I appeal to the right hon. Gentleman, at this late hour, with 40 minutes to go, to say that this is a debate as much about the sovereignty of Parliament as about the Bill. If he is really concerned about the reputation and rights of the House, he will be prepared to discuss the contents of a code of such wide reaching importance over the whole of industry and a code about which there is a considerable controversy, as he knows, not only in the House but also outside it. This is not a matter to be pushed into an odd one and a half hours late at night. The House ought to have an opportunity of debating the subject and of making constructive suggestions to the right hon. Gentleman.

I commend the Amendment to the right hon. Gentleman. By accepting it, he would not be accepting any change in the code of practice in advance. All that he would be accepting is the principle that the House should be consulted and have the right to debate it and to take precedence over outside bodies which apparently have far more influence upon the Government than the democratically elected Members of the House.

I urge the right hon. Gentleman to say that he will not just look into these Amendments and tell us that he did not find our arguments very weighty, but that he will also heed the words of some of his hon. Friends who were disturbed about the matter, and say that he will give way on this matter, that there will be room and time for a debate, and that he will listen to the views of the House before adopting his draft code of practice. He can do that by accepting the Amendments.

Mr. Adam Butler

I agree entirely with the importance of the code of practice. I look forward with anticipation to its early appearance in the House.

It recognises the voluntary nature, which is at the basis of the Bill. Perhaps for that reason one could question the extent of the debate which is necessary. The points which it will bring out are those which have been made by my right hon. Friend the Secretary of State during the past few years, not only at Conservative Party conferences but on other occasions. It will deal with recommendations and advice to both sides of industry as to how they should conduct their affairs, especially on the vital matter of communications—an O.K. word, but one which means letting the participants in industry know what is going on.

I hope that there will be recommendations on works councils, for instance, certainly with firms above a certain size, works councils which are not involved just with the minutiae of business but which are searching for help and advice from all sides of industry. I would look for an extension not of worker representation on executive boards, but of worker representation, shareholder representation and management representation on advisory boards in industry, which is the German practice. This has a political consequence but, more important, all sides of industry have an important contribution to make towards the management of companies. These are some of the things I look for in the code of practice.

I hope that the debate will be very wide. I particularly hope that the T.U.C. will overcome its inhibitions about consultation with the Government on this point, and that my right hon. Friend, having published the terms of the code of practice, will give not weeks but months to debate in the country with the T.U.C., the C.B.I. and other bodies.

I must accent the voluntary nature of the code. Whatever the hon. Member for Manchester, Blackley (Mr. Rose) may have said, it has been recognised during Second Reading and in Committee that there will be nothing legally binding in these proposals—

Mr. Rose

I repeat to the hon. Member that there is, in the same sense, nothing legally binding in the highway code. One can be in breach of the highway code without being in breach of a Statute, but as soon as one is found in a court to be in breach of the highway code conviction automatically follows, and in this sense it is legally binding.

Mr. Butler

I see my hon. and learned Friend the Member for Southport (Mr. Percival) shaking his head. I think "automatically" is wrong. The Bill says that the code of practice will be taken into account. In the same way as we accept the highway code as a reasonable code of practice on the road, so I hope we would accept this code of practice as reasonable in the conduct of industry. It is, therefore, fair that the courts should take it into account when considering the industrial practice of employers or unions.

The hon. Gentleman made an important point of whether the House should be free to debate the provisions or whether the affirmative Resolution procedure should apply. I should be happy if my right hon. Friend would allow us a debate, but I take the hon. Gentleman up on his point about a debate in the country. We in this House have a great deal to contribute to the debate, but if the T.U.C. and all other industrial bodies were to participate in the debate there would be great merit in that. I ask my right hon. Friend to consider a debate some months after he has published the code—perhaps in the autumn—so that the House may have the opportunity for amendment, rather than to adopt the affirmative Resolution procedure.

11.30 p.m.

Mr. Bidwell

Although the debate is not specifically about a non-appearing code of industrial practice, the debates about industrial relations have reached a height greater than for many years as a result of the introduction of the Bill itself, and it may well be that interest will be further heightened when the Bill becomes law, as it seems likely that it will. That is all to the good. None of us on either side would wish to steer away from that necessity, I am sure.

In an earlier debate about the code of practice, I put it to the Secretary of State that it would be axiomatic. The right hon. Gentleman rejected the word "axiomatic", and, on reflection, I think that he was right in the sense that the code of practice is an important part of what he is trying—though going about it in a mistaken way—to achieve. In so far as the code of practice is admissible in evidence, it assumes a weight and significance which may be substantial in certain instances.

I share the view of the hon. Member for Bosworth (Mr. Adam Butler) in that sense, and I am glad that he is, as it were, putting his weight behind our Amendment in wishing there to be adequate parliamentary time for there to be a searching and through going debate on the code of practice. Inevitably, there will be debate outside the House, but I do not think that one can properly put a time to its coming before the House, as the hon. Gentleman did when he suggested that it could be a year or so before we debated the code here.

If the code of practice is to assume the weight implied by admissibility in evidence in the National Industrial Relations Court, the sooner it comes before the House for the fullest possible debate, with hon. Members on both sides contributing out of their experience in industry, the better. It could, so to speak, strangle itself if it was concerned with trivialities. On the other hand, if it is to assume the form envisaged by the Secretary of State, it will be a document of considerable significance and of new dimensions in our society.

The code of practice, as I understand it, will be a document of constitutional importance. It would be mistaken and wrong to try to slide it away from the House in any way. I hope, therefore, that there will be a vote on both sides in support of our Amendment. That is the best way of proceeding if hon. Members opposite are sincere in wishing to take the best course to improve industrial relations. We have our doubts about that, but these things are tested in actions, not words.

We on this side give way to no one in wishing to see a considerable improvement in industrial relations and the development of the kind of society we hope soon to see, with co-operation in industry reaching heights hitherto unknown. We must have that if we are to survive as an industrial trading nation. My right hon. Friends were struggling to achieve it when they were in Government. They were making certain mistakes, but that was their overall objective, and they are much likelier to achieve it than any Tory Government.

But these matters are to be tested, and one way to do it rationally is in the new code, which is to assume such importance. I should like to know from the Secretary of State in particular, since he did not accept my word "axiomatic" earlier, what weight he puts upon it. If it is considerable, what facility is he prepared to give us to debate the code thoroughly?

Mr. Hooson

It is to be hoped that the Secretary of State will give way on this point. The provision of the Indus- trial Court code of practice will be a very important element in the Bill. No one who followed the Committee stage, with all its ramifications, can fail to have observed that many speeches were repetitions of Second Reading speeches. It may be much more important to debate the code than it has been to take part in many of the Committee debates.

One thing we have learned in the course of our debates has been that there is a great deal of industrial expertise in the House. Therefore, if the code, for good or ill, is to be a very important element in the Bill, and assume the importance that, say, constitutional conventions have assumed in the House over the years, these matters should be subjected to debate in the House. The provisions of the Bill seem to me to allow only for an hour and a half's debate on an affirmative Order procedure, which is not good enough for such a code. Therefore, I took the view, as is shown by Amendments, which were not called, that the Bill should not become law until the code had been published and approved by the House, and that if that was not possible at least it should be published as soon as possible after the Bill becomes law.

The Secretary of State has not shown himself to be particularly tractable on the Bill, but he could concede something here. If we are to have a code, which presumably will be prepared in his Department after due consultation with the Commission and so on, it would he very odd if the House, with a great deal of industrial expertise, has to consider it in a matter of an hour and a half.

I hope that the signs I discern in the Secretary of State mean that he will meet the very reasonable point made.

Mr. Keith Stainton (Sudbury and Woodbridge)

I wonder what thought my right hon. Friend has given to the Green Paper procedure. Perhaps I have missed this part of the debate. A Green Paper might well be published, and that would not be inconsistent with the terminology of the Bill.

Mr. Orme

We have had a debate on the question of the unseen, unsung, unwritten code of practice. We have done some peculiar things in our consideration of the Bill, but nothing as peculiar as discussing and voting on legislation that we have never seen. It is an extraordinary procedure.

I happened to see a short part of an important television programme dealing with the Bill this evening. I saw the Solicitor-General, amongst other speakers. The interesting point was that a number of those taking part referred to the industrial code of conduct and its importance. They said that the Bill would be governed by it, and that in effect it might be more important than the Bill itself. But I assume that all those speakers were no more privy to the code than we are. The British electorate were being told tonight about something that nobody has seen. What is more, when we do see this important code which the Solicitor-General says is going to be more important than the Bill, we shall be able to debate it for only 1½ hours on an affirmative Order. It is an absolute disgrace and reveals the full shallowness of the Government's case.

Sir Harmar Nicholls (Peterborough)

Why is the hon. Gentleman being so obtuse and pretending not to understand the obvious? He is a practical Member of this House and has contact with what goes on. He knows that the code of practice will codify the commonsense actions which have always been followed by sensible trade unions. He is a member of a sensible trade union. He knows that the code will codify its commonsense actions. He should not put on this sham indignation about a matter which he, as a sensible man, understands very well. He is not obtuse. He is making a sham of his case.

Mr. Orme

I am on a valid point. We are entitled to see what it is we are debating. We are passing legislation affecting millions of people and we are not seeing it. The Solicitor-General has said that it will define the rôle of shop stewards and of management. He pulled certain things out the air but gave no facts. We were told that consultations had taken place with the trade union movement but we know there have been none. In consequence, we are being asked to pass something which we have not seen The hon. Member for Peterborough (Sir Harmar Nicholls) says I am a sensible person.

Sir Harmar Nicholls

So you are, usually.

Mr. Orme

If that is so, then, as a normal, average, sensible person, I like to be able to see and read the legislation I am supposed to be considering. Trade unionists and managements outside who will have to operate the code of practice should also be able to see it.

Sir Harmar Nicholls

rose—

Mr. Orme

No. I have given way to the hon. Gentleman already. I am making only a brief contribution.

I have tonight heard the code of practice referred to by people on television who like us have not seen it. They prayed it in aid because, they said, it would improve industrial relations. This is the height of nonsense. If ever there was an Alice in Wonderland atmosphere about this Bill, this must be the issue. The right hon. Gentleman should tell us the facts.

Mr. R. Carr

I must tell the House that, as I am sure many hon. Members know, unless we alter our procedures the method proposed in the Amendment is not acceptable because, under those procedures, we could not proceed in the way it suggests. Subordinate legislation never has been, I understand, amendable because otherwise it would become similar to ordinary legislation.

Mr. Rose

I do not think that right hon. Gentleman can have read the Amendment correctly. It would provide for a debate on a consultative document prior to his laying the Order before the House.

Mr. Carr

It also refers to the possibility of Amendment.

Mr. Rose

Prior to laying the Order.

Mr. Carr

Surely the hon. Gentleman is putting a new slant on this.

Mrs. Castle

This is a serious proposition we are putting to the right hon. Gentleman. We had the Consultative Document before this Bill, and then we had the Bill. We debated the document and now we have a chance to amend the Bill because it is major and not subordinate legislation. Recognising the impossibility of amending subordinate legislation in the ordinary way, we propose that the right hon. Gentleman should bring forward a consultative document in advance of his draft Order or draft code. He should then enable the House to amend the Consultative Document. On that he would proceed to base his draft code.

11.45 p.m.

Mr. Carr

I beg the right hon. Lady's pardon. I had not understood that to be the intention of the Amendments. However, I have not misunderstood the technical advice which I have been given about the possibility of accepting the Amendments. If we were to write them into the Bill they would not have the meaning which the right hon. Lady has put upon them, but would be taken to involve an extra process of amendment, as with this stage of the Bill.

I recognise that the code is a very important part of our proposals. It is complementary to but separate from the Bill itself. The provisions are not directly enforceable; nor in our view should they be, because conditions vary enormously from industry to industry and even from company to company within the same industry. If we were to make the provisions of the code directly enforceable, we should be putting industrial relations into a straitjacket, and it would be quite wrong to do that. They are of a different character from the basic provisions of the Bill and are properly dealt with by subordinate legislation.

I cannot agree with the hon. Member for Manchester, Blackley (Mr. Rose) who drew an analogy with the Highway Code, whose provisions, he said, become almost automatically enforceable. I do not believe the two sets of conditions are similar, because driving on the road is, although no doubt diverse, less diverse than the conditions throughout the whole of employment in industry, trade and commerce. It is largely criminal law, while here we are dealing with the civil law. Clause 103(3) makes it clear that in deciding any matter the court must take into account the extent to which the other party may have contributed to the problem; for instance, with a union, the court must take into account the extent to which the employer may or may not have contributed to whatever has gone wrong. We do not accept that the provisions of the code will in any way become automatically enforceable.

There is another difference, namely, that we expect and intend that the code should be capable to being added to and revised in a fairly flexible manner. This is a new idea; we are experimenting—we make no apology for that—and we therefore think that as we gain experience and conditions change, we ought fairly flexibly, more flexibly than by main legislation, to be able to add to, or subtract from, or revise, the provisions of the code.

For all those reasons, we believe that it should be in the form of subordinate legislation. It is not altogether new—which does not mean that it is not altogether right—for main legislation to be debated and passed in advance of subordinate legislation being available for examination.

I hope to publish the consultative draft as soon as possible. Using the words of my hon. Friend the Member for Bosworth (Mr. Adam Butler), we certainly hope to provide months not weeks for the code to be thought about, and consulted about. I stress that the document will be open for genuine consultation and views by hon. Members and other people and bodies outside the House for a period of months, not weeks.

The right. hon. Lady the Member for Blackburn (Mrs. Castle) suggests that perhaps we should have a debate on the consultative document so that the views of Parliament can be expressed on the Floor of the House and not only in more informal discussion. She will understand, and I hope that she will not take it amiss, that I cannot commit by right hon. Friend the Leader of the House. I did not understand the meaning of the Amendment. I will convey the right hon. Lady's view to my right hon. Friend, but I cannot commit him in advance on the question of setting aside a particular day for a debate.

Whether or not we have a debate—and I would not wish to shirk a debate on the consultative draft—my idea would be, before the end of the year, having had some months for consultation, to be able to bring the draft before Parliament for approval so that I should in effect be meeting what I know the hon. and learned Member for Montgomery (Mr. Hooson) pays much attention to, as do I and the House, namely, that the code and the Bill should become operative at about the same time. I felt it right in the Bill to allow for a latitude of time, but I shall regard myself as having failed if I lose any substantial amount of time before getting the code into operation.

Hon. Members have spoken about having a 1½ hour debate when the code comes before the House for final approval. That is often all the debate that affirmative Resolutions have. But it will be in the knowledge of the House that on important matters affirmative resolutions often have longer. While I cannot commit my right hon. Friend the Leader of the House in advance, I shall convey to him with strength, and with an expression of my willingness that this should happen, that at the final stage we should have a day rather than 1½ hours. That is what I hope will happen.

Mrs. Castle

We are glad to learn from the Secretary of State that he is preparing to put the consultative draft before the public and before Parliament. That is something to be thankful for. But we remain unconvinced that he cannot go the step further which we request in our Amendment, namely, to enable Amendments to his consultative draft to be moved and voted on in the House.

The Secretary of State has argued that the code of practice is of a different character from the Bill. But in the last few months, while we have been examining the Bill, the code of practice has loomed even larger in importance than the Bill. The right hon. Gentleman and his supporters repeatedly say that the Bill is only a reserve framework of legal powers, that what matters is to change attitudes and that the right way to change attitudes is to set down a code of practice which will inspire all people on both sides of industry for the years to come.

It is remarkable how the code has been brought in as a rescue operation to save the Government from some of the bad impressions left by the Bill. As we have brought into the light of day the legal complexities, and in some cases the downright legal frivolities as well as tyrannies of the Bill, the Government have become more and more uneasy and have kept saying, "That is not the way in which it will be done. The code of practice will do the trick, and we will not ever use any of these laws." The laws will exist, apparently, only to make everybody pay attention to the code of practice. It has, therefore, become a focal point.

As my hon. Friend the Member for Salford, West (Mr. Orme) said, the fascinating thing is that the Hamlet in this great Shakespeare play has never yet appeared upon the stage, and the curtain is practicaly coming down. We are still waiting for this hero to materialise. He is lurking somewhere in the right hon. Gentleman's imagination, and he will do wonderful things when he appears on the stage.

It is astonishing that in the Bill we should be solemnly voting, as we did when we voted on Clause 4 some weeks ago, to make the centre-piece of the right hon. Gentleman's industrial relations policy a document that we have not yet seen and, what is more, solemnly voting that such a document shall be admissible in evidence before the National Industrial Relations Court. This is an entirely different situation from what the right hon. Gentleman tried to suggest was the normal method of having the major legislation first and then the subordinate. The code is not subordinate.

We are told that it is the major part of the reform movement which the right hon Gentleman has been launching on the world, and it will obviously be a far-reaching and complex document. It will embody all those elusive principles that we had in Clause 1. Perhaps even under subsection (1)(a), the very first subsection of the Bill, the code of practice will spell out to us at last the mysteries of the Government's incomes policy, because it will certainly deal with what ought to be responsible collective bargaining from the Government's viewpoint. Only through the code of practice will we ever get any indication of management's responsibilities, which the Government forgot to mention until we pointed out their omission whereupon they rushed the Amendment to subsection (2)(a).

The code of practice has to remedy a lot of things in the Bill. It has to rescue the Government'se reputation in industrial relations. Therefore, the right hon. Gentleman should let us have the code of practice in consultative document form that the House can amend. In asking for this in the Amendment, we are fulfilling a desire on both sides of the House and we therefore ask that our Amendment should be accepted. If it is not, we must divide the House.

Question put, That the Amendment be made:—

The House divided: Ayes 154, Noes 294.

[For Division List 277 see col. 455.]

It being after Twelve o'clock, Mr. Speaker proceeded, pursuant to Standing Order No. 43 (Business Committee) and the Orders [25th January and 15th March], successively to put the Questions on Amendments, moved by a member of the Government, of which notice had been given.

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