HC Deb 03 July 1975 vol 894 cc1695-761

(1) There shall be established a tribunal in accordance with the following provisions of this section.

(2) The said tribunal (in this Act referred to as "the Appeals Tribunal") shall be called the Industry Act Appeals Tribunal.

(3) The Appeals Tribunal shall be appointed by the Lord Chancellor, the Lord President of the Court of Session, and the Lord Chief Justice of Northern Ireland, acting together, and shall consist of a President and other members of such number as those appointing the Appeals Tribunal, acting together, shall determine.

(4) The President shall be either a person who has held judicial office under the Crown (in the United Kingdom or elsewhere) or a barrister or advocate or solicitor of at least seven years' standing, and other members shall be barristers or advocates or solicitors of at least seven years' standing.

(5) In appointing the Appeals Tribunal the Lord Chancellor and the Lord President of the Court of Session and the Lord Chief Justice of Northern Ireland shall have regard to the desirability of ensuring that so far as is practicable the President and the other members shall be persons with knowledge and experience which will be relevant to carrying out the Appeal Tribunal's functions.

(6) In the event of temporary absence or inability to act of the President the Lord Chancellor, the Lord President of the Court of Sessions, and the Lord Chief Justice of Northern Ireland, acting together, may appoint some other person having the appropriate qualifications under this section to act temporarily as President or may appoint any of the other members of the Appeals Tribunal to act as President, and a person or member so appointed shall when so acting have all the functions of President.

(7) If the President or any other member of the Appeals Tribunal becomes, in the opinion of the Lord Chancellor, the Lord President of the Court of Session, and the Lord Chief Justice of Northern Ireland, acting together, unfit to continue in office or incapable of performing his duties, they shall jointly forthwith declare his office to be vacant and shall jointly notify the fact in such manner as acting together they think fit, and thereupon the office shall become vacant.

(8) Subject to subsection (7) of this section, the appointment of the President or of any other member of the Appeals Tribunal shall be for such term as the Lord Chancellor, the Lord President of the Court of Session, and the Lord Chief Justice of Northern Ireland, acting together, may with the approval of the Treasury decide upon before making the appointment and shall be subject to such conditions as may be so decided upon.

(9) There shall be paid to the President and to the other members of the Appeals Tribunal such remuneration and allowances as the Lord Chancellor, the Lord President of the Court of Session, and the Lord Chief Justice of Northern Ireland, acting together, may with the approval of the Treasury determine.

(10) The Lord Chancellor, the Lord President of the Court of Session, and the Lord Chief Justice of Northern Ireland, acting together, may appoint such staff to the Appeals Tribunal as they may jointly, with the approval of the Treasury as to numbers and remuneration, determine.

(11) The remuneration and allowances of the President and the other members and the staff of the Appeals Tribunal, and such other expenses of the Appeals Tribunal as the Treasury may determine, shall be defrayed out of moneys provided by Parliament.

(12) The Appeals Tribunal shall hear and determine any reference made to it under section 23 of this Act.

(13) In carrying out its functions under subsection (12) of this section the Appeals Tribunal shall subject to the provisions of section 23 of this Act and subject also to the provisions of subsection (14) of this section conduct its proceedings in such manner as it thinks fit.

(14) The Appeal Tribunal will conduct its proceedings in private except when on any particular occasion it decides, or is directed by the Lord Chancellor, the Lord President of the Court of Session, and the Lord Chief Justice of Northern Ireland, acting together, to conduct its proceedings in public.

(15) The Appeals Tribunal shall as soon as may be after the end of each calendar year make a report to the Lord Chancellor, the Lord President of the Court of Session, and the Lord Chief Justice of Northern Ireland, jointly on its activities during that year.

(16) The Lord Chancellor shall lay before Parliament the report referred to in subsection (15) of this section'.

Mr. Kaufman

The effect of the amendment to Clause 23 is considerable. It will probably be of most use to the House if I quickly outline the procedure that would be adopted if all the amendments were accepted, and then explain the main changes that are proposed by the amendments.

First, let me describe the procedure if the advisory committee is involved. A reference will be made, by the Minister on his own initiative, or as a result of a union representative seeking to see disclosed information the Minister considers should not be disclosed "for special reasons", or as a result of a company seeking to have less disclosed than the Minister indicated in his proposal. If a reference is made, the committee after giving the company and trade union representatives an opportunity of making their case and considering these, must report its recommendation to the Minister. Only after this has happened may the Minister make his final decision, which he must give to the company, the union representatives and the committee, informing them of whether it accords with the committee's recommendation. Should the Minister require information to be disclosed contrary to a recommendation of the committee, he must make an order to this effect, subject to negative resolutions in both Houses of Parliament.

The procedure if there is no reference to the committee is somewhat simpler. After the end of the period set out in the preliminary notice, if there is no requirement for a reference to be made to the committee, the Minister may simply inform the company and union representatives that notice now becomes operative, and all or part of the information in it must be provided to trade union representatives.

Mr. Eric S. Heifer (Liverpool, Walton)

Does my hon. Friend intend to explain the basic reason for the change in relation to the amendment, because this, while not a fundamental change, is a change of some importance. Labour Members would like to know the reason for that change in order to determine their views, because they are not entirely happy.

Mr. Kaufman

I certainly accept that my hon. Friend would like an explanation of that change. When I have concluded outlining the actual provisions, which will be of benefit to the whole House, I shall gladly outline the reasons behind the change that we are proposing.

There are three main changes that are proposed by these amendments: first, the committee is to be advisory, rather than being the final arbiter; second, the committee will be especially established, according to the new Schedule, and will not he the Central Arbitration Committee; third, there is a new and additional form of Parliamentary control, should in any circumstances the Minister require disclosure contrary to the committee's recommendation.

The original arrangements established a division between those safeguards to be decided by the Minister and those which were to be decided by the independent committee. Under these arrangements neither could in any way affect the other's decisions.

This division of responsibility had some unfortunate rigidities. In particular, if any question of withholding information for reasons of commercial injury arose, the Minister could do nothing. It had to be settled by the company making an application to the committee even if, as might well have happened, there had been many previous such applications and it was well accepted that information of the sort in question should not be furnished to trade union representatives. This inflexibility was clearly unaktractive—and, in response to the point raised by my hon. Friend the Member for Walton, I shall return to this question of inflexibility.

We therefore propose to introduce a more flexible and I believe more effective system by which the Minister makes the final decision on rational and special reasons for non-disclosure but has access to an advisory committee which he may be required to consult.

It is important that the independent committee which will advise the Minister is seen to be impartial, fair and effective. The Government originally proposed that the CAC should discharge the duty of deciding on cases involving what we have now called special reasons for nondisclosure. This matched the CAC's responsibilities under Clause 17 and 18 of the Employment Protection Bill. In many respects the CAC would have been a suitable decision-making body. However, since the rôle of the committee is now to be advisory rather than a determining body, it is no longer appropriate to be used. We have taken the opportunity of the change to an advisory committee to provide for a special committee whose composition and functions are specified in a new schedule. We have provided for a balanced committee chaired by a lawyer, whose members will have exactly the powers required to determine the questions on which they are asked to advise.

My hon. Friend will have seen that workers and management are to be represented on the committee equally, one each. The composition and procedure of the new committee takes account of the criticisms made in Committee about the procedure of the CAC in this rôle. Having read those proceedings at some length, I believe that there was a great deal of force in a number of criticisms made. As a consequence of the special committee and the new schedule, we are able to delete what was Clause 23(6) which was criticised as conferring excessively wide powers on the Secretary of State.

I recognise that there were some misgivings about conferring powers on the Secretary of State contingent upon the passage of a Bill which it was not certain would be passed—although obviously we are extremely anxious that it should be—and which would have left an open end of an unsatisfactory nature had the Bill for some reason or another been frustrated.

Since we have made the committee advisory there is a possibility that its advice may be rejected. We have required the Minister, when announcing his final decision, to state whether he is in agreement with the committee's recommendations. In addition, if the Minister requires disclosure of information contrary to the committee's advice he can do so only by laying an order subject to Negative Resolution before Parliament. No disclosure of information in this category may be required while the possibility of annulment exists. This additional parliamentary control will, I hope, give assurance that we intend to treat the committee's advice carefully and seriously.

I have outlined the procedures and the main changes in the Bill which will follow from these amendments. The arrangements now proposed should be equitable to both sides of industry, more flexible and, I submit, more effective than those originally proposed.

I would like now to deal with the valid and important question put by my hon. Friend the Member for Walton. Like many hon. Members who were not involved in the Bill, who were mere spectators of its proceedings in Committee, I came to it afresh, as one does as a Member of Parliament involved in a great deal of legislation but necessarily closely involved in the legislation of one's Department. Together with my senior colleagues, I examined this issue.

It seemed to me, if I may say so to my hon. Friend without seeming patronising, that one of the most engaging aspects of his contribution to the Committee proceedings was the way in which, while remaining a spokesman on Government policy, he felt free at the same time to state his views on Government policy.

It was very much my view that it was entirely wrong that on a matter of such importance, particularly for the unions, the Secretary of State should be bound by a decision of a committee, which was responsible to no one, whether he should pass on information to trade unions. Even if he had wished to do so following consideration of the matter by the independent committee, he would not have been able to do so. He would have been bound by the committee's decisions, very much in the way on which Ministers in the Conservative Government were bound by extra parliamentary bodies which they set up under various pieces of legislation and which they were then unable to influence.

It also seemed to us that there was a grave danger that the machinery of the committee would become clogged. There was no case law and no precedent. Everything started anew, ab initio. It seemed likely that although the disclosure provisions were mandatory—and that was something about which my hon. Friends and other colleagues felt strongly—the mandatory nature of the provisions might be frustrated by a blockage caused by a succession of applications to the committee. In addition, this was a one-sided committee. It was a committee to which the company applied and to which the union had no access.

We therefore decided upon a change. The change was that there should be an advisory committee to the Secretary of State and set up by him from four panels—a management panel, a workmen's panel, and either an English legal panel or a Scottish legal panel, the chairman to come from this latter panel. That committee would advise the Secretary of State. The trade union would have to be notified of an application and would also be able to apply on its own behalf. Trade unions would have parity with companies in being able to put their case to the independent committee. Although naturally the union would not be acquainted with the full information, it would be acquainted with the nature of the information which the company was seeking to withhold. A trade union would therefore have the right, which it does not have under the Bill as drafted, to put its case to the independent committee.

The Secretary of State would then be able to consider it. If he decided contrary to the committee and wished to hand information over to the trade union regardless of the committee's advice, he would be able to do so. I believe that that is right. I do not think that the Secretary of State, a Minister of the Crown, should be bound in a decision, which is not a narrow decision like that of, for example a social security appeal tribunal, by a committee set up of his own choosing. Naturally it is right, if the Secretary of State chooses to disregard the committee, that he should be answerable for his disregard.

We have therefore said in the final stage that if the Secretary of State decided to set aside the advice of the committee and to hand over the information to a trade union, Parliament should have the right to examine that decision through the Negative Resolution procedure and the Secretary of State should be answerable to Parliament rather than be bound by an independent committee which he has established.

Mr. Heffer

May I ask a question about the factual position? The committee will be drawn from the employers' panel, the work force panel and the legal panel. Does that mean that there will be one from each panel, so that there is a total of three members? I see that my hon. Friend is indicating that it does mean that. Who will be the chairman? Will it be the legal man? This is crucial, because if there is an anti-union chairman from the legal profession nothing put forward by the trade unions will be accepted. On the other hand, if it is an anti-employer legal man who dislikes employers' organisations, the employers will never get a decision in their favour.

Mr. Kaufman

My hon. Friend is right to probe the issue. It is as well, since it is an important innovation, that it should be clarified and queried. The provision in the Bill as we intend, if the House consents to amend it, is clear. There will be a management member and a workers' member. There will be an equal balance between management and unions and the lawyer will be the chairman—

Mr. James Dempsey (Coatbridge and Airdrie) rose

4.30 p.m.

Mr. Kaufman

Perhaps I may complete my sentence. I quite understand the fear of my right hon. Friend that the committee might be overbalanced if there were a biased chairman one way or the other, as there easily could be. That is a problem we always face. I faced it in the Department of the Environment when I was considering appointments to the rent assessment committees. It is because I recognise that that I regard as of the utmost importance the fact that the Secretary of State will not be bound by the committee. If he were so bound, as he was in the Bill as originally drafted, then I can assure my hon. Friend that I would have been slightly more neurotic about the way it was made out because, like him and other of my hon. Friends, I have no great love for lawyers and I do not believe that they are great repositories of wisdom.

Mr. Nicholas Fairbairn (Kinross and West Perthshire) rose

Mr. Kaufman

I will give way to the hon. Gentleman in a moment. I have a great love for the hon. Gentleman but an even greater love for finishing my sentences before giving way. I promised to give way to my hon. Friend before concluding. This is an important matter. I would tell my hon. Friend the Member for Walton that under the original proposal one would have had no greater confidence that the committee would come to a right and fair decision but the Secretary of State would have been bound by its decision, even with that lack of confidence. The great protection of this present procedure against a feeling that the lawyer might balance one way or the other is, first, the fact that the Secretary of State need not be bound by the decision of the court and may still pass on the information to the trade union; and, secondly, that if he sets aside the decission and passes on the information to the trade union, he has to explain himself to Parliament. That seems to me absolutely right, first because discretion lies in the hands of a Minister of the Crown responsible to Parliament and, secondly, because Parliament is the body which, in the end, will decide.

Mr. Tom King (Bridgwater) rose

Mr. Dempsey

As I understand it, we are discussing a matter which would be regarded as of commercial confidentiality in deciding whether that information should be released. I cannot understand why it is necessary to have a lawyer there at all to tell people such as myself, who have had practical business experience, whether it is wise to disclose this information. I would like my hon. Friend to develop his argument on why there is any necessity at all to have a legal representative there, far less in the chair.

Mr. Kaufman

My hon. Friend's simple questions are always more difficult to answer than more complicated ones. It is received wisdom that lawyers make good, impartial chairmen because they know the law. It might well be that lawyers and others would make equally impartial chairmen. I have in my constituency a wide range of people in whom I would have great confidence and therefore I am not passionate on that. It is received wisdom and I believe my hon. Friend would be right to be suspicious if there were not to be a representative of both workers and employers. But I do not think it is a matter on which one need be overly concerned. I will give way to the hon. Member for Kinross and West Perthshire and then to the hon. Member for Bridgwater.

Mr. Fairbairn

May I ask the Under-Secretary two questions? First, he says that he does not have much fondness or feeling for lawyers. I thought that Socialists regarded all men as their brothers regardless of their occupation. Perhaps partiality is at last creeping into the Labour Party. But leaving that aside, the function of this committee, or whatever one might call it, must surely be a simple matter of the interpretation of the law and nothing else under this clause— whether the release of the information would be substantially prejudicial to people's interests. What has that to do with people not qualified in the interpretation of the law?

Mr. Kaufman

On the hon. and learned Gentleman's first point, I have the utmost brotherly feeling for lawyers as people but when it comes to lawyers as lawyers, my feelings are less brotherly. All men are my brothers but some are more brotherly than others. Industrial matters, on which my hon. Friend the Member for Walton, had a great deal to say during the passage of the Industrial Relations Bill, are not matters simply for law courts. Industrial matters are matters of flesh and blood, and those who are involved in them, workers and management, have a right to be heard and, indeed, it is necessary to hear from them. This is not a legal situation.

The trouble with the ramshackle machinery that hon. Gentlemen opposite want to erect to deal with such matters is that of having an obsession with dragging lawyers into everything, like the mad National Industrial Relations Court they set up, which caused precisely the same problems for their Government as I fear the committee as originally envisaged might have caused us had we proceeded with it—though I must confess their Government suffered on a far larger scale than we would have suffered.

Mr. Tom King

As I understand what the Under-Secretary has said—that the protection against a prejudiced chairman of the committee who might be biased one way or the other is that the committee's decision can be overriden by the Secretary of State—it carries the implication that the man who can be guaranteed at all times, without any political thought at all, to be totally unbiased is the Secretary of State. It seems a very odd doctrine.

Mr. Kaufman

The hon. Gentleman did not listen to what I was saying. I said that the Secretary of State is the Minister in charge of this legislation. That is why we believe that the checks and balances in this situation are very fairly placed. If the Secretary of State exercises his discretion in a way which sets aside a decision of the committee, he has to lay an order, and the Secretary of State's decision can be debated by Parliament. The great glory of our parliamentary democracy is that Ministers are answerable to Parliament. I believe that they should be, and that they should not be bound by an independent committee of their own appointment. That is why I believe—although I said yesterday that this whole machinery is inevitably cumbersome—that we have the checks and balances about right. I very much hope the House will agree with these Government amendments.

Question proposed, That the amendment be made.

Mr. Deputy Speaker (Sir Myer Galpern)

I understand that the hon. Member for Tonbridge and Mailing (Mr. John Stanley) wishes to divide on an amendment. Will he please move it now?

Mr. John Stanley (Tonbridge and Malling)

I beg to move Amendment (a) to the proposed Amendment, in subsection (1) leave out 'an advisory committee' and insert 'the Appeals Tribunal'.

There is not and never has been any difference between the Opposition and the Government as to the basic intentions of Clause 23. We have been united in seeking to ensure that whatever procedure is adopted in that clause provides us with the means, both legally and procedurally, of having a watertight system for safeguarding commercially confidential information. We are talking in essence about two very different routes to the same end—about, on the one hand, proceeding down the Government's advisory committee road or, alternativeley, proceeding down our own road of an industrial appeals tribunal.

Clearly it is not a simple matter of procedures as far as industry is concerned. This is no academic, administrative debate because it is incumbent upon us to get Clause 23 right. If we fail to do so and create a situation in which commercially confidential information can be gratuitously leaked, we shall end up by jeopardising the prospects of individual companies and those employed in them. This is a vital matter which directly affects the bread and butter and the living standards of possibly many thousands of employees.

During the Committee stage we spent, by my calculations, a total of 11 hours debating this particular matter and I would certainly acknowledge that we in no way wholly wasted our time in doing so. I would be the first to acknowledge that the Government—and I do not know whether it was the outgoing or incoming Minister in the Department who was concerned, or possibly both—have certainly displayed flexibility in considering our objections and the criticisms we made during the Standing Committee proceedings.

The Government have, for example, accepted our case that it was wholly inappropriate to use the Central Arbitration Committee of the Advisory, Conciliation and Arbitration Service that is being set up under the Employment Protection Bill. They also accepted our criticisms of subsection (6) of Clause 23 in the original Bill, which gave Ministers carte blanche to establish appeal bodies under existing enactments or not simply by laying orders. They should be able to set up what we regard as courts without passing additional legislation.

In addition, the Government have accepted our criticism that people were inadequately qualified to take decisions on commercial disclosure as members of the Central Arbitration Committee. The qualification was that they should be experienced in industrial relations, and we did not see that that was necessarily a suitable qualification for the decisions that that appeal body would take. We welcome the Government's alteration of the composition of the advisory committee to provide a mix of lawyers and those from both sides of industry with experience, not in industrial relations but in industrial affairs, which we accept as a much wider qualification.

While it is true that the Government have accepted some of the substantial points of detail in the objections we put forward in Committee, it is also the case that they have not accepted the arguments of principle that we advanced against the way in which they were trying to proceed. We come back in these Report proceedings with two major areas of objection in principle that we continue to see even in the amended proposals that the Government have brought forward.

First, without doubt a huge degree of discretionary power is given to Ministers, even under the new proposal. Concern about that degree of discretionary power has been expressed on both sides of the House today. The Under-Secretary gave examples of how that power might be used. He said that it would be used by Ministers overruling a decision by the committee to withhold the information. The Minister might say that it should be passed on to trade union representatives. But—and I am not sure that all hon. Members are aware of this—the Minister can overrule the committee both ways. In other words, if the committee decides that the information should not be withheld, it is open to Ministers under the Bill to rule, against the committee's advice, that it should be withheld. Here I comment on what the Minister said at the end of his speech. There is in fact no statutory instrument laid before the House, unless the Minister is overruling a committee's decision decides against its advice that the information should be disclosed.

Enormous discretionary power for Ministers is still present in the Bill. Our original criticism of the clause concerned ministerial discretion. Previously our fears were that the ministerial discretion might be used to set up appeal bodies under subsection (6) which would not be fully independent or fully competent to do the job. I agree that the Government have eliminated that area of ministerial discretion, but they have replaced it by an equally potent area of ministerial discretion—Minister's ability to overrule the judgement of the advisory committee.

Let us see how the advisory committee will consider the individual cases that will go to it. First, there will be a reference, which can be made by Ministers or the company or trade unions, to an advisory committee comprising only three people. As Labour Members have already highlighted, the composition of the committee and the outlook of those three people, will be fundamental. They will be critically important to seeing that there is fair play. Two of the members of the committee will be appointed by Ministers solely on Ministers' own authority. Only the lawyer member of the committee will be appointed by the Minister in conjunction with the Lord Chancellor.

4.45 p.m.

The advisory committee considers the case brought to it and then tenders its advice to the Minister, who is free to accept or reject that advice. The advice may be either way. It may be a recommendation that the information should be withheld or that it may be published and given to representatives of trade unions. The Minister can overrule the committee. If he does, it is only if his final decision is that the information should be published, when the committee has recommended that it should be withheld, that his decision is subject to a Negative Resolution order in the House.

Effectively, Parliament is being asked to act as appeal body against a ministerial decision. The Under-Secretary has laid great stress yesterday and today on what he regards as the important parliamentary safeguard of the Negative Resolution procedure if the Minister overrules the advice of the Committee. I do not suggest that hon. Members cannot successfully harry Ministers when a controversial statutory instrument is placed before the House. But we are considering a statutory instrument dealing with a particular type of subject matter, in which the Negative Resolution procedure will be singularly ineffective, because the statutory instrument will say that a certain amount of information, which cannot be described in any detail in it, will be passed on to trade union representatives. How on earth can a company successfully contest that sort of statutory instrument? How can hon. Members take a factual view on it when we are dealing with highly classified, commercially confidential information?

The Negative Resolution safeguard, of which the Government have made so much, is a sop. It is hardly worth having, because by definition the information which we are discussing, and which is the subject of the statutory instrument, cannot be made available to hon. Members on either side. Therefore, there is no possibility of the company concerned properly informing hon. Members of the nature of the information and giving them a factual basis on which to decide whether to negative the statutory instrument.

I come to the second objection that we made in Committee. Here, too, the Government amendments do not begin to meet our point. We have referred to the fundamental constitutional principle that the judiciary should be kept fully independent of the executive. Our original objection was that the Central Arbitration Committee was being asked to perform what was in our view a judicial function under the clause as originally drafted—to decide on the grounds laid down in the measure whether the information should be released to trade union representatives. We maintained in Committee that it was improper for a body such as the Central Arbitration Committee, a body within the executive, to perform that judicial rôle.

The clause as it has been redrafted confuses to an even greater extent the judicial and executive functions, because now it is not merely an arm's-length committee carrying out the judicial function but the executive, Ministers themselves. I suppose that the Government will argue—indeed, they began to argue in answer to interventions by my hon. and learned Friend the Member for Kinross and West Perthshire (Mr. Fairbairn)—that the real rôle of the advisory committee is an administrative rôle, not a judicial rôle at all. The Bill has been amended to try to convey that impression. I suggest that it has been amended misleadingly to try to convey that impression erroneously.

The Government suggest that the advisory committee is dealing with a matter in the same way as an advisory committee might advise the Secretary of State for the Environment in dealing with a matter such as a planning appeal. They suggest that it is art administrative matter, legitimately the subject of ministerial discretion.

Mr. Kaufman

Does the hon. Gentleman agree that the system of planning appeals is a semi-judicial process and that the secretary of State has a semi-judicial function in deciding on appeals?

Mr. Stanley

The way in which planning appeals and procedures, leading to a decision, are dictated follows a semi-legal form, but under the Town and Country Planning Acts this is delegated authority given to the Minister to exercise his perfectly legitimate executive discretion. We are talking about a different situation. The Government have acknowledged the semi-judicial—we would say, fully judicial—functions of the advisory committee by proposing to appoint lawyers as the chairman and one-third of the membership.

Sir Raymond Gower (Barry)

Can my hon. Friend explain the term "semi- judicial". I have never heard of it before. I have heard of quasi-judicial, but there is no such thing as semi-judicial.

Mr. Stanley

I apologise to my hon. Friend. I meant to say quasi-judicial, but the function being performed here is a fully judicial function and is not quasi-judicial.

I refer the House to Government Amendment No. 109 which is being discussed with our amendment. The wording of that amendment demonstrates that the issue before the advisory committee, whether the case is brought by a trade union, a company or a Minister, will be whether the "special reasons" are valid. Paragraph (a) of subsection (2) of that amendment reads that a reference to the committee may be required by a company where the Minister proposes to require them to furnish information under section 22 above and they claim that it should not be furnished for special reasons. A reference may be made by the representative of a relevant trade union where the Minister proposes that some or all of the information furnished to him shall not be furnished to representatives of relevant trade unions for special reasons. In subsection (3) of the amendment, we read, A Minister may himself refer to an advisory committee any proposal that some or all of the information furnished to him shall not be furnished to representatives of relevant trade unions for special reasons. In every case where there is a reference to the advisory committee, the special reasons will be at issue.

Clearly the function is a judicial one and Ministers are taking it upon themselves to operate the law as well as to legislate. They have substantial discretionary powers and are effectively putting themselves in the position of being members of the judiciary.

Our alternative proposals are set out in Amendment No. 187 under which we would establish an appeals tribunal which would not be as cumbersome as the appeals system provided for in the Bill. There is a clear requirement in the Bill for a body to hear contested disclosure of information cases. The key characteristic of such a body must be its independence of the Government and the only way this can be achieved is to make it part of the judiciary. It must be able to carry out, within the judiciary, its limited technical and expert functions in deciding disclosure appeals.

The Lands Tribunal provides an exact precedent for the sort of body we have in mind. It is firmly within the judiciary and carries out a limited, expert and technical function in land valuation and compensation. Our amendment is modelled on the Lands Tribunal Act passed by a Labour Government in 1949. There would be no doubt about its political independence—which is as important as anything—because its members would he appointed by the Lord Chancellor, the Lord President of the Court of Session and the Lord Chief Justice of Northern Ireland. Nor is there any reason to doubt the ability of these members to deal competently with the disclosure cases. Members would be appointed with regard to relevant experience and knowledge of matters likely to come before them and, in the Standing Committee I referred to the recent case of Hoffman-La Roche v. the Department of Trade and Industry—a case specifically concerned with the release of commercially confidential information—to show that the legal profession is wholly competent to deal with such matters.

Mr. Arthur Palmer (Bristol, North-East)

The difficulty with the Opposition's proposal is that public money may be involved in this matter and their suggestion would take away all control from this House. At least Ministers are responsible to the House.

Mr. Stanley

We believe that it is the function of the House to legislate and to hold the executive accountable to the House. The rôle we see being performed under Clause 23 is the judicial rôle of deciding whether the special reasons hold good in particular cases.

I am sorry that, because of the disgraceful guillotine and very short period of time allowed for the Report stage, we were not able to discuss the Government's "special reasons" amendment yesterday. The Government have never contested the practicability of the tribunal we propose and I do not believe it can be argued against on practical grounds. It is a basic matter of principle that we should have a body outside the executive. It is wholly wrong in principle that a body which is effectively a court should be set up in the executive. It is wholly wrong in principle that a Minister should arrogate to himself the rôle and functions of a member of the judiciary. The result of Ministers taking these sweeping and discretionary powers against which there is no effective right of appeal will be enormously to increase the uncertainty of companies and trade unions.

Mr. Kaufman

The hon. Gentleman is getting into a bit of a logical fix. He is saying that the Opposition want the appeal body to be a court and consequently the Government are getting involved in a judicial situation. We are doing so only if we want the body to be a court, and we do not want that.

5.0 p.m.

Mr. Stanley

It is not a question of who wants it to be a court and who does not. As the Bill is drafted, and as it will be redrafted by the Government amendments, the advisory committee will perform a judicial function. If the Under-Secretary is denying that that is so, why have the Government brought forward their "special reasons" amendment? Those are the criteria against which individual cases are to be judged. If, as the Under-Secretary maintains, there is no judicial rôle here, the special reasons will be superfluous.

What the Government are doing will lead to enormous uncertainty for the companies and the trade unions. Since there will be an element of ministerial discretion by which the Secretary of State can freely override the judgment of the Committee, there can be no certainty for any company that the grounds for withholding information, which are spelled out in the Bill under the "special reasons" provision, will be adhered to or ignored by the Minister. The special reasons will apply only if the Minister considers that they should. Amendment No. 105 of yesterday, which we were unable to debate, made that clear.

Neither companies nor trade unions can be certain that the powers will be used without political bias or partially by a Government, whatever its political complexion. The powers ultimately belong to Ministers, and Ministers are political and not judicial animals. Neither side of the House should be mollified or satisfied by the assurance, which I am sure the Under-Secretary will give, that these powers will be exercised reasonably, responsibility and fairly by the present administration. We are not legislating for this set of Ministers or for this Government. We are legislating for any Minister and any Government, and the Government's amendments make it possible for Minister to exercise judicial powers on a discretionary and, therefore, potentially arbitrary basis.

For 300 years successive British Parliaments have jealously guarded the principle that executive and judicial functions should be kept clearly separate, and I hope that the House will show that its jealousy of that principle is in no way dimmed and will support our amendment.

Mr. Heffer

This is a most complicated matter. Anyone who pretends that he has an easy answer to it is talking rubbish as those of us who debated the matter at great length in Committee know.

The information in question could be of a highly confidential commercial nature. The Government, I know, in urging that this information should be given to trade unionists, realise that the commercial interests of a firm could be damaged merely by the information becoming known. They do not intend it to be given to the general public and the mass of the workers in the industry concerned. It is difficult to know precisely where to draw the line between what is confidential and what is not. Perhaps a company would argue that information was confidential and should not be given to the unions when it was not confidential at all. We therefore are thrown back on defining the special reasons.

It has never been said that all information would be given freely and without hindrance. There are two areas in which it is recognised that information could be particularly sensitive. The first concerns the national interest and involves questions of security and so on, and the second concerns information of a sensitive commercial nature.

I am not completely satisfied with the Under-Secretary's explanation but I would never support the Opposition amendments. We have examined this matter many times and we are not completely happy with it. Nevertheless we are prepared to give the proposals a chance and see what happens. In practice we shall see whether the system works sensibly and intelligently, and if it does not, that is a matter which must be pursued. I have no doubt that the trade unions and employers will take the matter up if necessary with the advisory committee.

I do not accept the Opposition contention that there should be an appeals tribunal consisting of barristers or advocates or solicitors of at least seven years' standing. I do not see why someone in that category should be able to decide any more intelligently what is commercially sensitive information than a trade unionist, an employer's representative, a dustman or the charlady who cleans this House. I do not understand why lawyers should be regarded as being all-knowing, and in saying that I stress that I am not "anti-lawyer".

The Under-Secretary said that we were dealing with individuals in industry, and that sums up the thinking of the trade union movement. It wants this information because it concerns the lives of the work people, who have a right to that information as it affects their future. With it they can adopt a more positive approach to industrial matters, industrial relations and the industry in which they work. Whether they should get the information should not be determined by a group of lawyers. If we are to have an advisory committee, it should be made up of representatives of the work force, the employers' organisations and—I will accept for the moment—legal people.

Mr. Tom King

The hon. Member for Liverpool, Walton (Mr. Heffer) suggested that there might be substantial validity in our proposal because the trade union representative might be biased in favour of greater disclosure. I am not trying to put words into the hon. Gentleman's mouth. He has explained why trade unions have a natural interest in this aspect and therefore may not be as impartial as lawyers. Therefore, lawyers may have an advantage, quite apart from the legal training aspect, because they are not directly concerned.

Mr. Heffer

The hon. Member for Bridgwater (Mr. King) has answered the point himself. If there is one trade unionist and one representative of the employers' organisation, and the employers' organisation representative says, "No, this should not be given to the trade union", then the lawyer, precisely for the reasons that the hon. Gentleman suggests, will come down on the side of not giving the information to the trade unionists. That is what I fear and that is why I am not entirely happy. I shall give it a go. We shall look at it and hope that it will work out in an unbiased fashion. Even with this set-up, I am afraid that it is likely to be more biased against trade unionists getting information than if the composition were different. That is precisely the point I am making.

Mr. Keith Stainton (Sudbury and Woodbridge)

A relevant point that we tried to develop in Committee was that, right from the start, the trade union representative is at a great disadvantage because he is not privy to the nature of the proceedings and does not know the case to argue before the committee. He is pleading in the dark.

Mr. Heffer

I do not know whether the hon. Member for Sudbury and Woodbridge (Mr. Stainton) has experience of appeals tribunals of any kind. For a considerable time I was a member of the appeals tribunal concerned with national insurance legislation. The position was that all the information was given to the tribunal. It was possible to have people brought before it, and queries were raised at the local offices, and so on, before a decision was given.

Trade unionists are not unintelligent. Surely they would be able, having looked at the information available, to decide accordingly. They would be privy to information to which we would not be privy. If they are not privy to the information, it would be absolutely absurd to have a committee at all.

Mr. Stainton

The whole issue is whether they should have access to that information. Therefore, how can they be privy to it in order to argue their case when the committee has to decide whether they should have it? This is a very important point.

Mr. Heffer

I was talking about the composition of the committee. The hon. Gentleman is now talking about the trade unionists and the type of information that will be disclosed. I accept that this is a difficult problem. Indeed, that is why the committee must have a trade union representative who will know what the arguments and the information are about and will then be able to say whether such information should be given in view of its highly sensitive commercial or other nature.

I accept that some of the points made by the hon. Gentleman have validity. I accept the argument about the CAC. I accept that this is not a good idea. I am glad that we have got it away from that committee, first, because it will have enough to do anyway without being cluttered up with arguments about whether information should be given through the provisions of the Industry Bill. It is right to have a separate body. I do not agree with the concept of an appeal tribunal made up of various lawyers, barristers, and so on.

I am not entirely happy with the proposals made by the Government. I helped to draft the original Bill. I still feel that perhaps there is a great deal to be gained from having a separate committee, not the CAC, to look at the matter as was originally suggested. However, I suggest that we should give it a go and look at it on the basis of experience.

5.15 p.m.

Mr. Stanley

Would the hon. Member feel equally happy about the composition of the appeal committee regardless of which political party were in government at the time?

Mr. Heffer

This is a hardy annual that is always raised. Any Government at any time who are dissatisfied with legislation introduced by a previous Government can and do change that legislation. They may have to operate for a period under the previous legislation, but, if they find that that is not helpful because they have won an election on a certain point of view and that is what the people are expecting them to carry out, obviously they change the legislation. Every politician is politically biased. If not, he would belong to an amorphous group known as "the party of non-politicians". Who would get elected to the House of Commons on the politically biased policy of being non-politicians? This is not a logical situation. We all belong to political parties and we support certain legislation based upon our election manifestos.

Therefore, the point made by the hon. Member for Tonbridge and Mailing does not worry me at all. If the Tories, God forbid, ever came into power again and had to carry out the policies laid down in the Industry Bill, I have the feeling that, after a period of time, if it were not in line with their political philosophy, they would change it. I have no doubt that that would be the position.

Mr. Emlyn Hooson (Montgomery)

This is not the first time in my life that I have not been impressed by the case put by the Government or by the Opposition Front Bench on this matter. I am not saying that both hon. Gentlemen did not present their cases well, but I do not think that this matter has been sufficiently thought out, because it covers a very sensitive area. We are moving into new ground.

I largely agreed with much of the reasoning of the hon. Member for Liverpool, Walton (Mr. Heffer). However, I disagreed with him when he suggested that we should allow this matter to be tested and that time would prove whether it was successful. That is a dangerous doctrine because often these things work out totally differently from the way in which we expect. They might work out to the disadvantage of the viewpoint expressed by the hon. Member for Walton. Indeed I suspect that that will be the case. Therefore, we should look more closely at the matter.

In view of the Under-Secretary's presentation of the case today, I do not think that the Government can possibly have thought the matter through. They have virtually appointed the House as the final court of appeal for what will be a dispute between parties. How can it be appropriate for this House to consider these particular matters? A firm which has commercially sensitive information, which even the trade union may not understand is commercially sensitive, will, if the Minister has made an order or decided not to accept the advisory committee's advice, have to come here as a final court of appeal. But how on earth can that commercial company allow Members of Parliament to know what it is that is commercially sensitive to enable individual Members to make a judgment on that point? It is an absolute nonsense. Although it may sound marvellous to uninstructed listeners, it may sound as though this is preserving the powers of this great democratic institution, it is a nonsense when we consider the matter with which we are actually dealing.

I cannot accept the view put forward from the Opposition Front Bench that this is a judicial matter and that a tribunal constituted of lawyers should consider it. That would not be appropriate in this sensitive sphere. We have embarked upon something of the nature of a quasi-judicial body, which is completely different from a planning tribunal. Though itself a quasi-judicial body, a planning tribunal is subject to the law of the land. Prerogative writs apply. If a quasi-judicial tribunal such as a planning tribunal goes wrong in law, the matter can be transferred to the High Court. Therefore, such bodies are independent on matters of fact, but not on matters of law.

It would be impossible to transfer a matter of this kind to the High Court and have a judge decide it, because the commercial firm concerned would have to reveal its secrets or the reasons why the information is sensitive to that court, which necessarily has to sit in public. Therefore, we are considering something totally different and have not yet struck the right note.

My hon. Friends and I suggest, in the form of an amendment, that this body should be an appeal committee, not an advisory committee. The advantage of its being an appeal committee is that it prevents the Minister being the judge in his own cause. That is very important. Ministers are highly charged political animals. One can anticipate that, whereas the present incumbents in office may think it highly desirable that they should finally decide these matters, they may find that somebody at present on this side of the House with totally different views would be taking most of the decisions. Therefore, that is inappropriate.

Another reason is that, if it is an appeal committee and it is known that it will decide important and sensitive matters, we are likely to have highly responsible and skilled people appointed to it. The greater its powers, the more likely the Minister is to take great care over appointments to it. If it were an appeal committee, totally different from what is suggested by the Opposition, we could have a highly responsible and experienced trade unionist, a highly responsible and experienced employer and, one would hope, a senior and responsible barrister or solicitor in the chair.

There are advantages in having a lawyer serving on such a committee. After all, what is envisaged is a dispute between two conflicting bodies—men of flesh and blood. If they have a dispute, somebody has to decide it.

There are two basic advantages in having a lawyer on the committee. The trained lawyer is accustomed to assessing both sides of an argument. This may be to his disadvantage in a political sphere, but it is to his advantage in a judicial or quasi-judicial sphere.

The trained lawyer is also very good at articulating the conclusions reached by a committee. We may have highly skilled and knowledgeable people in industry serving on the commitee as representatives of the trade unions and employers, but they may be no match for the lawyer in articulating what they decide. In my view, based on such experience as I have in this sphere, a highly responsible committed of this kind would agree in nine cases out of ten.

Mr. Tom Litterick (Birmingham, Selly Oak)

Will the hon. and learned Gentleman give way?

Mr. Hooson

I will give way to the hon. Gentleman later.

Right hon. and hon. Members in all parts of the House can draw on their own experience. My experience is that a body of this kind, composed of a highly experienced member of one side of industry, a highly experienced member of the other side of industry and a lawyer in the centre, is likely in almost every case to reach the same conclusion.

In considering this body we must remember that the only guidance afforded to it is the term "special reasons". That would have to be interpreted over a long period. A magistrate or anybody who has knowledge of the law knows that there is an interpretation of "special reasons" in the Road Traffic Act. But "special reasons" has to be interpreted in the context of this legislation.

The hon. Member for Walton pointed out that we are dealing with difficult matters in the sense that there is no precedent for evolving an interpretation of "special reasons" in this sphere. That is why, if this advisory committee were to be changed in kind and, I hope, improved in quality from what was contemplated, we might have a body ideal for this purpose. I promised to give way to the hon. Member for Birmingham, Selly Oak (Mr. Litterick).

Mr. Litterick

My point has almost been lost in the welter of highly articulate words which have flowed from the hon. and learned Gentleman. A few hundred words ago the hon. and learned Gentleman characterised his hypothetical body as being highly responsible. We are talking about words—at least the hon. and learned Gentleman was—their use, and people's ability to use them. When he referred to this highly responsible body, did he mean it in the sloppy sense of a lot of dignified people or in a precisely technical sense?

Mr. Hooson

I meant it in a precisely technical sense. I should have thought that any responsible Minister appointing people in this sphere would appreciate that it was important that both the trade unions and the employers should have faith in the committee. Therefore, it would be important for him to appoint people who were respected and had a great deal of responsibility in their respective spheres.

Obviously with this kind of development in the law and the change in our attitude towards the sharing of information between both sides of industry, it is important that, whether this be an appeal committee as opposed to an advisory committee, highly responsible people in the technical sense should be appointed to it. I do not mean dignified gentlemen with bowler hats in this instance, although I have nothing against bowler hats as such. I do not think that we have quite got the right answer to the problem and it is important that we should try to get it.

Mr. Palmer

I did not have the advantage of serving on the Standing Committee which considered the Bill in detail. Indeed, I did not have the advantage of hearing my hon. Friend the Under-Secretary when he introduced the amendment. What struck me, listening to the arguments from both above and below the Gangway opposite, was how academic the whole matter has become. We are dealing with industry which makes things and in which people are employed. Therefore, the issues are essentially practical.

My experience of asking for information is that one needs to know what information is available before asking for it. This was well illustrated by the experience of the Select Committee on Science and Technology, of which I have the privilege to be Chairman, when it wanted from the Government the report of the Vintner Committee which looked into the choice of reactor in this country. That was refused to the Select Committee on the ground that the Government had given an undertaking not to release it, presumably even to a Select Committee, because it contained delicate commercial information.

5.30 p.m.

Government supporters have referred to the possible partiality of Ministers. Information of a delicate commercial nature was refused in the first place by a Conservative Minister and was refused later by a Labour Minister. The Department behaved in the same way. It is important that the Department should do so. When the Bill becomes an Act and its provisions are put into effect a system of precedent and experience will be built up in the Department as to what matters and what does not matter.

The decision should be left with the Minister, although in practice it will be left to the Minister's expert assistants who will advise him. As a result of their experience they will know what is important and what is genuinely sensitive. That judgment can be challenged. As a result of the amendment it would be possible for anyone, whether trade union or employer, to request that the matter be reconsidered. It will be possible for the Minister to put the matter to an advisory body. He will choose that advisory body according to the nature of the business of the company and the type of information involved.

The proposal in the Government amendment to deal with the difficulty is practical and provides the common sense solution in those circumstances. With all respect to lawyers, that is the reason why this proposal does not appeal to them.

Mr. Fairbairn

I compliment the Under-Secretary on the fact that the Government have listened to our case. He read the arguments which were made in Committee and has to some extent understood them. Unfortunately, not being a lawyer, he has failed to understand the judgment of Solomon.

With that remarkable capacity for misunderstanding that judgment he has done what all people in those circumstances do. He has divided the baby in equal halves—between the original proposition, which was outrageous, and the criticisms of it, which were intelligently marshalled in Committee. Under the pretence of going half way with the mother, and, no doubt, the baby, the duty of appointing the lawyers has at last been granted to an independent person, as if that alone cured the fundamental defects of this procedure.

We are not dealing with an appeal from a minor road traffic offence. We are dealing with the question of whether the disclosure of information of great sensitivity by enormous organisations will cause damage. This machinery must deal with important questions. The Minister, an executive politician, and his advisers start off by making a judgment in law. This is a legislature. We pass laws. We do not pass menus, from which we can choose what we like. A law is a law.

If the Government wish to say that they will appoint advisers to decide in every case whether or not the information should be disclosed for any reason they care to think up, that is one interpretation. That is not what the Bill says. It says that the Minister shall make an interpretation in law of whether furnishing the information would be undesirable in the national interest. That is a matter of absolute interpretation. It has nothing to do with the Minister. He must decide whether he can do so without contravening any prohibition. Again, that is a matter of law.

Against that there is an appeal. To whom do we appeal? We appeal to the Minister. With respect, the hon. and learned Member for Montgomery (Mr. Hooson) echoed many of the arguments which I put in Committee. The first appeal is to the Minister. He is judge in the first case. He then becomes the court of appeal. That procedure is laid down in Clause 22(5).

There is the ridiculous proposition that the matter be transferred to any advisory committee, which has to interpret a matter of law. According to the amendments passed yesterday, it must decide whether the information was communicated to the company or companies in confidence or was obtained in consequence of a confidence. What connection that has with a committee of people who have nothing to do with the interpretation of a statute, I do not know.

There is the proviso whether the disclosure could cause substantial injury to the undertaking. What does "substantial" mean? The word "substantial" is chosen in this Bill. The well-known definition of the word "substantial" occurred in the case of Terry Motors v. Rinder, when it was held that it was a word of no fixed meaning, and was an unsatisfactory medium for carrying the idea of any ascertainable proportion of the whole. The advisory body must say whether the disclosure could cause substantial injury to a substantial number of employees in the undertaking. It is thought fit that the committee should make that judgment in law.

I first criticise the composition of the committee. If we wish a judgment to be made impartially we do not, for instance, on a Northern Ireland matter, appoint a member of the UDA and a member of the IRA, and ask the Lord Chancellor to put a judge between them. We do not say that that will constitute an impartial committee because the persons serving on it are so partial that they will be impartial. The hon. Member for Liverpool, Walton (Mr. Heffer) gave the game away. He said that he was terrified that the referee might belong to one side or the other. He includes in his concept the idea of taking sides and the award of a prize to one side or the other. That is not what this is about. The wounds and the damage to people, whether they are earning wages or salaries or whether they are shoppers or other members of the community, will be just as disastrous if the judgment is made wrongly.

The advisory committee should be composed of people who are competent to make impartial decisions. The responsibility should not be given to those who are partial to one or other side of industry. That is not the purpose of this measure.

This is a question of the disclosure of commercial information which would hurt the national interest or those employed in industries, or a substantial number of employees.

Mr. Litterick

The implication of what the hon. and learned Gentleman says is that there is ipso facto in the mind of a lawyer a species of objectivity which is grafted on to him by reason of his legal training and to no other type of human being. The hon. and learned Gentleman is a lawyer. He sits on one side of the House of Commons. As a lawyer, he is partial by definition. Therefore, by reason for his legal training, he could not pose as an objective judge of anything. I wish he would realise that fact of his life and apply it as a more general fact to his argument.

Mr. Fairbairn

I may be an impartial judge of nothing, but I know rubbish when I hear it. The Prime Minister obtained the services of Lord Hailsham, a member of the other place, to defend him, so as to demonstrate his impartiality. Let us keep off the subject of lawyers. I have not yet mentioned that question.

It is foolish to start by deliberately creating a doubly partial body and appointing a referee in the middle of it. I do not want to stick up for the legal profession, but lawyers have certain advantages and they are trained to be impartial. It may be said that it is not possible for me, as a Conservative Member of Parliament, to be impartial, but I have represented far more Socialists than Conservatives in the course of my criminal and civil practice, and I have never shown the slightest partiality. I regret to say that the conviction rate amongst my Socialist clients is higher than it is amongst my Conservative clients.

The body must be a high-powered one. I think that there should be lawyers on it. The members should not be partial. They should be impartial judges because they have to make a judgment of law. The procedure is not about a trade union saying that it wants the information, whether it be good or bad for anyone else, and the employers saying that the information will not be supplied, good or bad for anyone else, so that the job of the man in the middle is to make a decision.

I come to the fallacies. It is necessary to argue the case whether the information for special reasons should be withheld without being able to disclose that information openly, just to the tribunal—it has to be done in secret—and, secondly, to the side which is arguing the opposite case. That is a fundamental fallacy, and I do not see how the procedure can work.

Next, there is no appeal, Suppose the tribunal gets the answer totally wrong. The ground has now moved to "special reasons", and anyone with the slightest knowledge of that expression will know that the concept "special reasons" has been adopted into road traffic law, criminal law, consistorial law, election law and the law of damages. It is a very difficult concept, and some of the greatest minds the country has produced have gone to great lengths to try to define it. To get a couple of amateurs of opposite poles of view, a Tory on one side and a Socialist on the other, with a lawyer in between to decide, is farcical.

There is no appeal in law from that procedure. What happens if it is decided that the special reason is that the case is heard on Friday 30th April? What appeal has the party against that judgment? At last there is to be a judgment, but what is to be the appeal against a wrong interpretation of the Act? There is not one. How can one appeal against it to the appeal court in either country if the information cannot be disclosed and if the basis of the argument of one side has not been allowed to be presented?

I compliment the Under-Secretary of State on attempting quickly to amend the flaws which were obvious in the previous procedure, but the new one is just as bad a scrapheap and contravenes natural justice just as badly. These are some of the most important decisions that will ever have to be taken, and there must be proper machinery for taking them. We have had hundreds of lengthy amendments from the Government and amendments to amendments, and there have been mistakes in them. The law of the land is meant to be accurate.

It is wrong to change the previous procedure by shuffling in this Benjamin Bunny concept of getting the Lord Chancellor to appoint a chap in the middle. We are dealing with an important national matter, and to set up an important body in such a hurry, so trivially, with very little thought of the concepts and principals involved, is a great mistake.

I do not think that the body will favour one side or the other, but it will do immeasurable damage to both.

I beg the Under-Secretary of State, before the Bill reaches the statute book, to improve this slipshod committee which should be a tribunal at law because its sole function is to interpret the law. There should be an appeal to the law. The purpose of the law is to be impartial, but this procedure is secret, inadequate and contrary to all the principles of justice and natural justice. It is a compromise between the dreadful scheme we had before and the criticisms that were made of it, and it is still not right. As I recalled at the beginning, the judgment of Solomon was to get it right, and not to divide and mutilate the baby.

5.45 p.m.

Mr. Ian Gow (Eastbourne)

The Committee spent more than 13 hours considering this important Clause 23. It is a matter of great regret that we are now considering such an important clause virtually completely redrafted by the Government since the Standing Committee ceased its deliberations, and considering it under the guillotine procedure, which allows us only three hours to discuss a virtually new clause which the Government recognised to be of crucial importance.

Like my hon. and learned Friend the Member for Kinross and West Perthshire (Mr. Fairbairn) I think that the composition of the committee of the so-called three wise men is open to grievous objection. First, two out of the three members of the committee are appointed solely within the discretion of the Secretary of State subject, it is true, to the consent of the Minister of Agriculture, Fisheries and Food. Why we have to bring the Minister of Agriculture into the appointment of this advisory committee I do not know, but two out of the three members of the committee are appointed exclusively by the Secretary of State, subject only to the consent of the Minister.

This extends the power of political patronage. Amendment No. 112 provides that the Minister shall also have power in cases where he thinks it appropriate to make payments to the members of the committee. Again, I deplore the extension of the power of political patronage to what should be—as the amendment in the names of my hon. Friends and myself shows—a committee appointed independently and not by the political executive.

I criticise the wording of Amendment No. 109. If the phrase "special reasons" is to appear in an Act of Parliament, it should be judicially defined in the interpretation clause. No guidance is given to the three wise men on how they are to interpret "special reasons". Those words appear twice in the amended Clause 23 and, as my hon. and learned Friend the Member for Kinross and West Perthshire said, the words "special reasons" have been defined principally by the courts in connection with the Road Traffic Act 1930 and the Road Traffic Act 1962. But the definition given in those two Acts of Parliament and the interpretation of those words as decided by the courts since bear absolutely no relationship whatever to the meaning which the Government have in mind under the provisions of the amended Clause 23.

How can the three members of this advisory committee interpret what is meant by "special reasons"? Is it that the directors of the company concerned feel very strongly that the information should not be disclosed? Would that amount to special reasons? Is it because the unions concerned, to which the information might be disclosed, are particularly anxious that there should be disclosure? How on earth and by what criterion are these words "special reasons" to be defined? If the words mean anything, why do not the Government come clean with the House, come clean with the trade unions and come clean with the companies which are to be asked to disclose this information, and tell them precisely what is meant by "special reasons"?

Mr. Kaufman

It may save the hon. Memeber a good deal of heartburn and the House a good deal of time if I refer him to Amendment No. 105, carried by the House yesterday, which specified what the special reasons were.

Mr. Gower

The Minister may think that that is an adequate definition. We on the Conservative side most certainly do not.

The fourth reason why I believe that the amended Clause 23 is wholly unsatisfactory is that there is a provision that the order which the Minister may make for disclosure shall be subject to annulment in pursuance of a negative resolution of either House of Parliament. How can Parliament make a decision of this kind without the disclosure to Parliament of just precisely that information which is the subject matter of the order? It seems to me to be quite meaningless to suggest that Parliament itself could pass any kind of sensible judgment on the opinion of the advisory committee or the decision of the Minister upon that recommendation without—

Mr. Stainton

Would my hon. Friend be good enough to develop this point also in relation to the suggested definition of "special reasons"? As I understand the situation, no body of precedent would be forthcoming, inasmuch as no detailed judgment would be available, so that no corpus of opinion on this could be built up.

Mr. Gow

I agree with my hon. Friend and hope that this is something he will be able to develop if he catches your eye, Mr. Deputy Speaker. But I do not see how the procedure for annulment by either House of Parliament can possibly be effected without disclosing precisely that information which ought not to be disclosed, because, of course, as envisaged, the advisory committee will sit in private.

My prediction is that the amended Clause 23 will prove to be unworkable. I think that this procedure will be challenged in the High Court because it offends against the rules of natural justice. I predict that before long the Government will be coming back to the House of Commons seeking to amend Clause 23 in precisely the way that is suggested by the amendment standing in the names of my hon. Friends and myself. But at least the Government have the possibility of escape from the trap they have laid for themselves. They can still, in another place, introduce amendments along the lines suggested in the amendment.

I beg the Minister to look again at his amended Clause 23. It will not work, the courts will prove that it will not work, and he will have to come back to this House within a few months of the Bill receiving Royal Assent in order to make precisely the changes that were urged by my hon. Friend when he moved the amendment.

Sir Raymond Gower

I agree with practically everything that my hon. Friend the Member for Eastbourne (Mr. Gow) said in his very decisive contribution. My hon. Friend the Member for Tonbridge and Mailing (Mr. Stanley) said in his opening remarks that we need to preserve the distinction between the executive and the judiciary which has been enshrined in our laws. I wish I could be quite as sure about that. I am afraid that there have been, unfortunately, several infringements. There has been a gradual process for many years which has lessened this salutary distinction, which I should have liked to see preserved to a greater degree.

What my hon. Friend would like to see preserved is enshrined in a much more real way in the constitution of some other countries, including Canada and the United States. I agree with him that it is highly desirable that we should seek to preserve considerable distinction between the executive and the judiciary. That in some degree answers one or two interventions by the hon. Member for Birmingham, Selly Oak (Mr. Litterick) a short time ago.

It is not that we want necessarily to have lawyers in a body of this kind. It is necessary, I believe, that we should have the sort of body which is divorced from the person making the political judgment when implementing the political part of this machinery. If the hon. Gentleman cannot see that, I am afraid that there is a great divide between us. That is the vital distinction.

I admit that in the course of many years in this House I have detected at times, not among all Labour Ministers and Members but among sonic of them, a deep-founded suspicion of lawyers and of the courts. I quite understand it. It is probably based on the ancient dictum that the law is open to all, the same as the Savoy Hotel.

Mr. Hal Miller (Bromsgrove and Redditch)

If my hon. Friend had been with us in the Committee proceedings, I wonder what he would have made of the remarks by the then Secretary of State, who claimed that his actions under the Bill would not be subject to interpretation by the courts. This is, my hon. Friend might think, an example of what he meant.

Sir Raymond Gower

I am not thinking of a particular case, but there has been a general suspicion, which I attribute to a quite understandable feeling, that in the past, certainly before legal aid, there were people with a perfectly valid case who for financial reasons could not go to court. There were other reasons, too, such as a feeling that perhaps the courts were not always aware of the practicalities of everyday life as they affect the more humble citizen. I can understand all that. Nevertheless it is vitally important that any country, whatever its standard of civilisation or its mechanical progress, should preserve a judiciary and a system of law which is divorced from the executive government.

Hon. Members will recall how dangerous any blurring of this issue has always been, especially in countries like pre-war Germany and pre-war Italy. Once this principle is allowed to become unimportant, countries proceed at their peril.

This may all appear to be somewhat remote, but I believe that it has a real relationship with what is proposed here. If we are to preserve it in the context of the Bill, I appeal to the Minister to look at this again. He has, as has been indicated, shown that he has a great sympathy for the argument as used in Committee. He wanted to arrive at a practical solution, but I submit that the one he has arrived at is not a very good one.

6.0 p.m.

As my hon. and learned Friend the Member for Kinross and West Perthshire (Mr. Fairbairn) pointed out, it is a temptation to adopt the expedient of getting someone from each side and thinking that this will achieve some sort of neutrality. But it is not the answer. We want a body which is accustomed to assessing the weight of evidence, a body which will not be swayed by influences of a transient kind but one which looks at the evidence of a case. As my hon. and learned Friend said, it will be dealing with matters of tremendous importance to the life of the country and to the life and welfare of our industry, some of it possibly with international implications. There are rival companies overseas, some with offshoots in this country, which would be only too anxious to get some of the evidence which our own domestic companies would not want to be known generally at vital stages in their formation.

I appeal to the Government to look at this again. If they set up a judicial tribunal, a body with neither an employer nor a member of a trade union on it, far from divorcing fair treatment from both sides they will increase the probability of fair and impartial treatment for both sides.

I agree with my hon. Friend the Member for Eastbourne (Mr. Gow) that if we set up a judicial tribunal we shall need an interpretation clause to define "special reasons". The Minister said that the phrase was defined adequately by the new amendment which was agreed to yesterday. Even in that case, however, we should need a reference in the interpretation clause to the amendment which was made yesterday. Even if the Government adopt the looser new clause, they will need some reference to "special reasons" at the end of the Bill. I hope that the Under-Secretary appreciates this. I am sure his advisers will confirm that he will need some interpretation of "special reasons", even if it is merely a reference to the clause which was changed yesterday.

I appeal to the hon. Gentleman, therefore, to prefer the impartial judicial tribunal—one which is accustomed to weighing dispassionately the evidence of cases of this kind—to one which will be subject to the buffetings and pressures which, in the long run, cannot ensure a fair and impartial judgment.

Mr. Giles Shaw (Pudsey)

This debate has rightly been dominated by the legal arguments by the lawyers seeking to point out to the Government the difficulties of interpretation and the awkwardnesses of precedent in the procedure which is to be set up. I wish to draw attention to other aspects of the clause and of these amendments, especially the Government amendment, which cause me equal concern.

When we debated this matter in Committee, some of us recognised that in this extremely sensitive area where employers and relevant trade unions were to be involved it would not be easy to find a correct solution. The Government will be aware of the view they took of the Conservative Industrial Relations Act and of the view they took of the setting up of that special court. Therefore, I think that there is virtue in recalling that precedent and in recognising that in setting up a procedure for something as important as heading off a potential and serious industrial dispute, great care should be taken to ensure that the procedure is seen to have three characteristics: that it should be a clear and well-understood procedure; that it should be a fair procedure, the findings of which can be acceptable; and that it should be a procedure in which the litigants on both sides can have confidence. I find the present Government proposals lacking in conviction in terms of those three criteria.

As for the clarity of the procedure, I found it difficult in Committee—and I have not yet been reassured—to believe that the representatives of relevant trade unions can argue the case effectively for what they want to see done. They are not in possession of the facts which are material to the case, nor are they in possession of the interpretation of what is prejudicial or seriously prejudicial, which the company or companies will themselves have. Furthermore, they are now no longer in a position in which what they might argue is known to be binding within the appeal procedure itself, because we now discover that the advisory committee as set up will literally advise and that the Minister may or may not accept what the committee has to say. It means that it will be very difficult, for example, for the representatives of relevant trade unions to build up confidence in the machinery by knowning that it works by a clear pattern of decision, because the Minister may vary the way in which he wishes to take the decision at which the committee arrives.

Equally, the company itself will find the procedure very difficult. It is being offered "special reasons", and the reasons are clear as to (a) and (b): that it believes that the disclosure would be seriously prejudicial to the company and its interests, or that the information which it is required to disclose would be passed in confidence.

At least the company will be clear about its belief in the confidential nature of the information passed to it. If it was in confidence and it could show it to have been in confidence, it could be clear about about its standing before the committee. Equally, it could take a strong view about the serious nature of the disclosure of information if that was forced upon it. The company will therefore be able to prepare a good case on those counts. But there could be a substantial number of employees affected, and here there might be difficulty.

The company, in relation to its relevant trade union, is dealing purely with the employees of that company. But the relevant trade union in dealing with its total membership. In relation to the appeal procedure, it will be largely representing the employees of the company which has failed to take a disclosure order from the Minister. But the relevant trade union will take a fair measure of interest in the protection, on the wider front, of its total union membership. It is bound to do so. Therefore, it is very difficult for the company to be assured that what it is talking about is a local matter which is contained within the company itself and upon which it can argue with a degree of conviction.

I find the clarity of this process faulty because both participants are on shifting ground. They cannot be sure about the way in which the procedure will work.

That leads me to ask whether the procedure will be fair in its findings. This is the second criterion. There was a view that if the appeal committee arrived at a unanimous decision and was seen to be composed of impartial members—I do not share with my hon. and learned Friend the Member for Kinross and West Perthshire (Mr. Fairbairn) the anxiety about having members from trade union and management sides—and if the parties could be certain that the findings would be accepted—and we have here a procedure which will build up precedent value and its own case law—they would know precisely where they stood on claims being made and, therefore, they could be reasonably sure that it would be fair. If it was fair, it would be a procedure which they could follow willingly.

On the Government's proposals, however, the Minister does not have to accept its findings, so that the fairness which is so important in building up confidence in the procedure will be put at risk. The Minister may determine for his own reasons whether or not to accept the findings of the committee. And so I come to the third factor, which is whether the procedure is one in which both parties can have confidence.

Here again I find the present proposals lacking, for the reasons I have adduced. It does not seem to me that the procedure lends itself to being consistent. It does not lend itself to arriving at fair judgments, because they might be overturned. I cannot believe that it is a procedure which will attract significant confidence. I remind the Under-Secretary of State that the whole procedure of the Industrial Relations Act foundered because neither the relevant trade unions nor the employers were confident about the effective working of that measure as regards their industrial problems. For example, unions failed to register because they were not confident of the benefits of so doing. We had a piece of legislation which did not find great acceptance in the sector of industry in which it was meant to work. I suggest that the precedents are not good. That means that we must find a procedure which we all understand and which everyone believes will arrive at fair decisions. There must be general acceptance that its decisions will provide the confidence that is clearly required.

I understand the enormous advantage to be gained by the relevant trade unions sharing to the maximum extent the information which will be obtainable within the Bill, but it is not the information itself which is important but the use which is made of it. In that sense it is vital that the appeals procedure does not exacerbate bad relations and cause damage between the parties. After all, a dispute can have dramatic repercussions. It is vital that the procedure is one in which all parties can have confidence. Frankly, I do not think that will be the case.

Mr. Hal Miller

I support the sub-amendment standing in the name of my hon. Friends and myself. I shall endeavour clearly to set out the reasons for that support. Before doing so, I must say that I recognise the impatience that at times must be felt by the hon. Member for Liverpool, Walton (Mr. Heffer) and his hon. Friend the Member for Bristol, North-East (Mr. Palmer). Clearly they are both taking a plain man's practical and experienced view. They are considering these matters as part of the collective bargaining process and they are looking for some give and take. They are seeking to establish confidence in the committee in the eyes of the shop floor and in the eyes of management. No doubt it is their wish that a recommendation will eventually be made to the Minister and that the procedure will be set up on that basis.

I understand and sympathise with that point of view and with the impatience that might arise from a lot of seemingly legal wrangling by my right hon. and hon. Friends. However, I cannot follow the hon. Gentleman and his hon. Friend because what we are discussing is a question of fact. A Minister is supposed to consider reasons for the withholding of information. If we refer to Clause 22 we see that the reasons include national policy or special reasons. My hon. Friend the Member for Eastbourne (Mr. Gow) has been into "special reasons" at some length. Among those reasons is that information has been communicated to the company or companies concerned in confidence or that information has been obtained in consequence of a confidence and that disclosure would cause substantial injuries. Those are questions of fact. They are not questions to be negotiated. It is not a question of reaching a view after hearing two cases and saying on balance that one finds for one or the other. The committee is being asked to determine straightforward questions of fact.

Reasons involving national policy have also been defined—namely, that to furnish it would be undesirable in the national interest", or that it could not be furnished without contravening a prohibition imposed by or under an enactment. There is some area of indecision as regards "national interest" and it is clear that the committee would not be peculiarly qualified to advise the Minister on the national interest. However, whether or not a company could furnish information without contravening a prohibition is once more a clear question of fact. We are dealing with fact and not with negotiation. I appreciate the reasons which lead Labour Members to approach the matter in terms of negotiation, but I submit that that is the wrong approach. The question falls to be determined as a question of fact—namely, in front of a court.

6.15 p.m.

I turn to advisory committees. At the outset I pay tribute to the Government for taking on board the discussions which showed that the original proposal for the Central Arbitration Committee of the Advisory, Conciliation and Arbitration Service to be responsble in this sphere was wrong. The hon. Member for Walton was generous enough to admit that it probably was not the right body and that it had better things to do. The idea that we should have a committee set up by the Minister, with the Minister free to decide whether to accept its advice on questions of fact, is plainly ludicrous. It all arises out of confusion as to the purpose of the Bill, to which I and other hon. Members have had occasion to refer to in previous remarks.

The information that the unions need for their collective bargaining is stated in the Employment Protection Bill. There are disclosure provisions set out in that Bill and procedures are established. I had occasion to refer yesterday in an earlier amendment to the wide-ranging nature of the disclosure provisions contained in the draft company legislation put forward by this side of the House when we were in office. That fell because of the February 1974 election. It is the confusion of purpose between industrial relations, industrial democracy, which is a sort of refinement of industrial relations, and employment protection that has led to the setting up of this ludicrously long-winded procedure. I think that the hon. Member for Walton and myself would be in agreement about that.

It seems incredible that we should have to set up a procedure of this complexity and of this length, with so many ramifications, to achieve an exchange of information between a company and its own employees. I well understand the hon. Gentleman's feelings of impatience, and on that basis I share them. However, we are talking about reasons involving national policy—for example, whether a company is breaking a confidence or an enactment. Those are questions of fact and they are not matters to negotiate.

These difficulties arise because the whole procedure is misconceived. It is misconceived because the Bill's provisions are misconceived. The provisions are misconceived because the objects are ill conceived and muddled. We should revert once more to the main purpose of the Bill—namely, an attemp to try to do something about regenerating British industry and bringing about greater investment through the NEB and planning agreements.

The Conservative Party produced its own Industry Act. That Act covered a great deal of the same ground as regards the regeneration of British industry. It is foolish to try to restrict an Act that is designed for that purpose, an Act that is doing something about employment practices, industrial relations and employment protection. It is that approach that has led us into this tremendous gobbledegook. If we are to have a procedure of this sort to meet the Government's wishes, we must ensure that concern is paid to questions of fact and that we have a properly constituted appeal body.

That body has to be independent, and must be seen to be independent by both sides. It is necessary that the union representatives should be satisfied that the case has been impartially and fairly heard—not bargained away as part of an odd job lot along with other considerations about holidays or pensions. If I were a representative of a trade union, that is how I would wish the matter to be considered. It is a clear question of fact for an appeal tribunal to consider on the lines set out in the amendment. For that reason, I have pleasure in supporting the proposal.

Mr. Kaufman

The hon. Member for Pudsey (Mr. Shaw)—he has explained his reasons for not being present to hear my reply—said that the debate would be dominated by legal arguments. It is true that from the Opposition side of the House we have heard a litigation or procession of lawyers one by one getting up and stating their opinions. I do not agree that it is right that this matter should be dominated by legal arguments put by lawyers, valid and interesting though many of those arguments have been. This is a practical issue rather than a legal one. One of the problems of the Conservative Opposition is that they have a tendency to trammel practical issues into legal toils.

The hon. Member for Tonbridge and Mailing (Mr. Stanley) attempted to demonstrate that what was required was to separate governmental and political decisions from judicial decisions. It is a little late in the day to want to separate these matters. I pointed out in an intervention that when it comes to decisions by the Secretary of State for the Environment on compulsory purchase orders or planning agreements, he acts in a quasi-judicial capacity. But the Secretary of State is a politician, and in exercising that function he operates as a politician and must do so. Having seen the report of the inspector on, say, a compulsory purchase order, the Secretary of State in exercising his final decision will take into account national policy. Furthermore, in dealing with a compulsory purchase order in which the arguments are finely balanced he will consider whether national policy should be biased in favour of redevelopment or of renovation. That must be the case, and it is impossible to separate out these functions.

The Industrial Relations Act, to which the hon. Member for Pudsey referred, got the situation hopelessly muddled since that legislation sought to deal with industrial disputes and the ordering of ballots and gave the Minister responsibility for making legal judgments and the National Industrial Relations Court the task of making political judgments. When the NIRC ordered a ballot among the railwaymen, it did so not on legal grounds but on grounds of having been compelled by the Industrial Relations Act to make political and industrial judgments about the mood of the railwaymen. What is more, the NIRC, having been given a political and industrial function by the then Government, got its assessment wrong.

The Conservative Government of the day got hopelessly trammelled in the legal toils to which I have referred partly by being bound by difficulties of their own making and partly by being unable to control their own sorcerer's apprentice. When the five dockers went to gaol, the Conservative Government had to search for an expedient and came up with the services of the Official Solicitor as the only way of getting out of the dilemma into which they had trapped themselves. In a small way we also could have got trapped if we had persisted in the machinery which my hon. Friend the Member for Liverpool, Walton (Mr. Heffer) rightly said was mistaken and which we have abandoned.

Mr. Fairbairn

The Minister said that the Secretary of State's decision—this is what frightens me—will be political and not judicial. Therefore, if the Transport and General Workers' Union or the National Union of Railwaymen put pressure on the Minister by saying "We want this information disclosed", he will make a political decision regardless of the terms of this legislation.

Mr. Kaufman

No, that is not so. The Secretary of State is bound by the Act. One of the most satisfactory things about British public life is that Ministers in both parties which have held office in the last 30 years have overwhelmingly behaved properly in the exercise of their functions and in the use of their discretion. The number of occasions when Ministers have dragged political judgments into the situation has been small, if they have existed at all. It ill becomes the House of Commons to discredit the use of the discretion of politicians. I emphasise that one of the most satisfactory things about British public life is the honourable way in which politicians have discharged their ministerial functions.

Mr. Hal Miller

The Minister spoke about the legal toils and trammels of the Industrial Relations Act. I have some sympathy with his remarks, but will he explain why the Government are now attempting to legislate in that same area of activity despite the unhappy experience to which he referred?

Mr. Kaufman

I am sure the hon. Gentleman is not suggesting that the Government should never legislate in industrial matters. All Governments have done so. I agree that a Government should be cautious when setting up a new court for ad hoc purposes. One of the most regrettable aspects of the Industrial Relations Act was that the then Government set up a new court for ad hoc purposes. The Conservatives in their amendments ask the Government to set up yet another new court for ad hoc purposes. I cannot accept the Liberal Party amendment, but at least the Liberals recognise that trap and do not wish us to fall into it.

Mr. Stanley

Will the hon. Gentleman further consider his remark that the Minister will be bound by legislation? Surely the legislation is drafted so as to achieve a position in which the Minister is not bound to implement the decision of the advisory committee. Although that committee may take the view that special reasons apply, the Minister is not bound by that view. He is saying to the whole of British industry and to every trade union which may wish to approach the advisory committee that no one who makes an appeal to the advisory committee can be certain that the special reasons laid down in the Bill will be acceptable and implemented.

6.30 p.m.

Mr. Kaufman

I do not accept that at all. It is certainly true that no one who makes an appeal can be certain of the outcome. It would be a very strange procedure if one appealed and knew the result before the appeal was heard. It would be wrong for it to be understood that the procedure the House of Commons is proposing, which I trust will be incorporated in the Bill, will be operated other than totally and honourably and in accordance with the Bill. The Minister does not have carte blanche to set aside the decisions of the advisory committee.

The advisory committee is asked to make decisions on certain criteria, including the special reasons. The Minister will set aside the advice of the advisory committee if he believes that the special reasons are nevertheless being conformed to. He will not do it simply because it will please the Transport and General Workers' Union or the "Selsdon Society" or whatever powerful body he seeks to please at the time.

Mr. Tom King

We know the criteria by which the advisory council will be bound. The Minister has said that the Secretary of State will be bound by the provisions of the Bill. On what criteria will the Secretary of State's decision be taken?

Mr. Kaufman

The Secretary of State will examine the decision in the light of the criteria laid down in the Bill. He will be answerable to the House of Commons. Conservative Members seem to imagine that any debate on a negative order would operate in a vacuum. Without the precise information being passed on, it is perfectly obvious that a company, perfectly justifiably, would fully brief the Conservative Party if it had tabled a Prayer to deal with a situation such as this.

Mr. King

The hon. Gentleman has Just said the the Secretary of State will be bound by the House of Commons and will be answerable to it. If the advisory committee says that the information should be disclosed and the Secretary of State says that it should not, is there any recourse to the House of Commons?

Mr. Kaufman

No, and that is absolutely as it should be. I was about to deal with that point, and this is a suitable place to do so.

Under the machinery as we put it forward there was no recourse to the House of Commons at all. Conservative Members have made a great deal about the serious nature of this information. I do not grumble with that. My hon. Friend the Member for Walton (Mr. Heller) has quite rightly done the same. If the advice is that the information should not be disclosed and the Secretary of State accepts that advice, he is keeping the confidence. It is absurd to expect the Secretary of State to be answerable for keeping the confidence. We propose that if the Secretary of State rejects the advice and decides that the confidence shall be broken, he shall be answerable for breaking that confidence. They are not parallel situations, and I am sure that Conservative Members realise that the balance is as it should be.

Mr. King

The hon. Gentleman has not got it right. If the Secretary of State agrees with the advisory committee, everything is all right—there is no further recourse. However, if the advisory committee says that the information should be disclosed and the Secretary of State disagrees, that matter would not be laid before Parliament.

Mr. Kaufman

I accept that. However, I am saying that by doing this we are protecting the company. If my hon. Friends grumbled about it, that might be understandable, but the fact is that we are biasing the system to that extent in favour of the company. If the advisory committee has advised that the information should be disclosed and if the Secretary of State uses his discretion to prevent the information from being disclosed, as he is keeping the confidence we are weighting it that way and he should not be answerable to the House of Commons. He should be answerable to the House of Commons if, contrary to the advice of the committee, he decides to break the confidence.

Mr. Fairbairn

This is a serious matter. The Under-Secretary has conceded that the advisory committee has to interpret the statute and that that binds the committee and the Secretary of State. Assuming that the committee comes to one conclusion and the Secretary of State comes to another—in other words, that the interpretation of the Secretary of State supersedes the interpretation of the committee—as that is binding, why have the advisory committee in the first place? If, without hearing any parties, the Secretary of State is able to overturn the legal decision of the committee, why have the committee at all? If the Secretary of State is such a genius, why cannot he do it on his own in the first place?

Mr. Kaufman

I am glad the hon. and learned Gentleman concedes that my right hon. Friend is a genius. That is widely known throughout the country.

The situation is that before making his decision the Secretary of State can ask the advisory committee for advice. It is an advisory committee to the Secretary of State to which he, the company and the unions can apply. That is the great merit of this body as distinct from the Gilbertian paraphernalia which the Conservative Party seeks to set up in rivalry to it.

Mr. Stainton

I do not want to resort to derogatory remarks. If the Under-Secretary wants to proceed in that manner, we can go back to the Green Papers and the White Papers that have been issued. We could waste a great deal of time and embarrass the Under-Secretary. I want to pursue the point raised by my hon. and learned Friend, namely, the duty being placed on the advisory committee or the Secretary of State of interpreting the statute. My interpretation is slightly different. The Secretary of State and/or the advisory committee would be interpreting not the statute but the circumstances, in particular within the framework of the statute. If we have a discussion on this basis, we shall make progress.

Mr. Kaufman

The hon. Gentleman, as so often in Committee, has got it absolutely right. I would not quibble with his interpretation. On the other hand, I hope that he does not think that a reference to W. S. Gilbert is derogatory. A great many people, including my right hon. Friend the Prime Minister, have a high admiration for W. S. Gilbert. I certainly would not quarrel with him on that ground.

What troubles me about the Opposition's amendment is that they never seem to learn. They have this inexplicable passion for setting up courts of law. They set up a court of law under the Industrial Relations Act which was one of the greatest disasters in legal terms which any Government have ever dabbled in. They are now attempting to set up a new court on which they have tabled a massively detailed amendment.

The Opposition hold the view that everything must be left in the hands of lawyers. We believe that there should be a more practical approach. As my hon. Friend the Member for Walton and my hon. Friend the Member for Bristol, North-East (Mr. Palmer) pointed out, it is a practical issue. This is an Industry Bill. Let us deal with it in a sensible way. I call upon the House to reject the Opposition's amendment and to carry the Government's amendment.

Mr. Tim Renton (Mid-Sussex)

I apologise to the House for not having been present during the whole of this debate.

I would like to take up one or two points made by the Minister in his reply. Understandably he referred to the fact that the Secretary of State, in considering the appeals procedure, would act totally honourably. I am sure that none of us would deny that. In a case of confidential information relating to a company's forward plans or to plans that might affect a large number of employees it is sometimes difficult to say that a Minister is acting honourably in the decision that he makes.

I refer to a case in history when a decision was taken by Harold Macmillan about the building of new steel works. If the steel industry were still in private hands this would be just the sort of forward planning, affecting a large number of employees, that might be referred to the Secretary of State. The decision taken by Harold Macmillan was that a big new steel complex should be split up and that part of it should got to Ravenscraig outside Glasgow and the other part to Port Talbot. Many of us who were not in the House at the time but who were, as I was, involved in the steel industry thought that that was a wrong decision. It was a decision that almost doomed both plants to economic failure. The size of the two separate units was not sufficient to enable them to compete with the big new steel complexes built at deep-water ports in, for example, Germany and Japan.

I have no doubt that Harold Macmillan acted honourably and felt that he was considering the arguments about the labour forces at Glasgow and in South Wales. He felt that he took a correct and honourable decision, but it was a highly political decision. It is just this sort of situation involving the future of a major company that makes it extremely difficult for the Secretary of State, however honourable his motives, to decide what is the right course.

Hence the whole question of the advisory committee, or, as we we would say, an appeals tribunal with quasi-judicial functions. The Under-Secretary made the point—I hope I understood him correctly—that if the appeals advisory committee were to decide against the company and said that the information should be revealed to the trade union involved it would be up to the company to make it clear to Opposition Members what it was worried about. Opposition members would then be able to pray against the order revealing the information to the trade union. That is a totally fallacious argument. If a company briefs Opposition Members the confidentiality of the information which it seeks to preserve goes by the board.

This was the point made at the beginning of the debate by my hon. Friend the Member for Tonbridge and Mailing (Mr. Stanley). The fact that a company wishes to keep information confidential makes it impossible for the negative order procedure to be utilised at all effectively. The more a company tries to brief Members of Parliament about what is involved the more it will be breaking the confidentiality which it is essential to maintain.

The most important point is that in the original Bill, debated at such great length in Committee, the conciliation and arbitration tribunal then put forward by the Government was a committee of decision. It had a deciding power on the release of information. It is that aspect which has disappeared as a result of this new Government amendment and which I find most worrying. We have a state of affairs where the Secretary of State appoints his own jury, leaves them to look at the matter and then decides whether to abide by their decision.

I find that an intolerable state of affairs. In many ways the provision in the original Bill was preferable. Then the committee had a definite power. Now it is a neutered animal. The Government will be able to see what the advisory committee has come forward with and decide whether to follow its recommendation.

For that reason I shall certainly join wholeheartedly with my hon. Friends in voting against the Government amendment and supporting our amendment to it.

6.45 p.m.

Mr. Tom King

These amendments and this whole procedure are final evidence of how complicated and totally inadequate is this whole system. I was not in the least surprised that the hon. and learned Member for Montgomery (Mr. Hooson) came somewhat fresh to our deliberations to say what an absolute nonsense the Government amendments were and also to criticise our amendment. We accept a measure of criticism of our amendment because, like the Irishman who was asked the way, we should not have started from this point.

In such a chaotic situation we are trying to find something that makes sense. I feel that the hon. and learned Member regarded the case as fairly hopeless and put down a tentative marker which at least indicated his dislike of the two proposals. We agree that there is difficulty in finding anything in this appallingly complicated structure which makes any sense.

Mr. Hooson

What the Liberal Party has suggested is simply that we should change the advisory committee into an appeals committee, make it more high-powered and let it decide. That stems to be the best practical opportunity we have for doing something acceptable.

Mr. King

I listened with great interest to the hon. and learned Member and I understand his point. He will realise that, whatever we do here, there are other inadequacies and problems relating to how any case can be discussed in the light of the confidentiality requirements.

The Minister has slipped blandly through these proceedings. It might not have been so easy for him in Committee. It was an interesting approach of his—I put it no higher—to criticise Conservative members for introducing legalistic arguments into our discussion. Who is creating the law? Who is introducing law into this area? The Bill, if it becomes an Act, will become the law of the land. The Minister is creating a legal instrument. It seems to be a curious approach for him to say "You chaps are being rather legalistic in your arguments." We have had interventions from certain distinguished lawyers. It is right that they should bring their experience to us to warn of the problems. Some of the issues in this measure will end up before the courts.

I would not have thought in the present state of the country that politicians were in a strong enough position to enable them to sneer at other professions. Living in this glasshouse, I would not want to throw stones at practitioners elsewhere. I find it difficult to know whether we are discussing a joke, a non-event or something particularly disastrous.

Congress has recently abolished a committee, I think the Mines and Mineral Workings Safety Appeals Committee. A gentleman was appointed to be in charge of that committee three years ago and has spent the past one and one half years petitioning Congress to dismiss him. He has been sitting in his office, with a secretary and expensive equipment but with not a single thing to do. It has taken him a year and a half to get his committee abolished and to be dismissed from his post. I wonder whether we are possibly seeing in this advisory committee a British version of that transatlantic phenomenon, because seriously I wonder how his committee can possibly work.

The advisory committee will start, and the first problem is how on earth it is to conduct its business—not because of the amendment which the Government have tabled, which is the correct amendment, but because it clearly outlines the problem. It says that it is the Minister's duty to give such indication of the nature without disclosing the substance of any information which the Minister proposes shall not be furnished … for special reasons". How on earth is a trade union to argue its case if it does not know what it is arguing about? If the information on which it wishes to present its case has to be kept confidential, how is the case to be pursued? That is what the advisory committee has to do. We have this advisory committee which is splendidly impartial, as my hon. and learned Friend the Member for Kinross and West Perthshire (Mr. Fairbairn) has said, which starts by having one partial person appointed on each side. The hon. Member for Liverpool, Walton (Mr. Heffer) has made the point that it will be natural and right that the trade union member should be biased in favour of greater disclosure, and the impression of the hon. Member is that the implication is that the management representative will be naturally biased against disclosure, though I would not accept that. So the advisory committee starts with two people preconsidered to be biased, and we end up with one impartial lawyer.

Mr. Russell Kerr (Feltham and Heston)

Would not the hon. Gentleman agree that this is the basic principle on which English law is conducted?

Mr. King

I am sure the hon. Gentleman has been engaged on important parliamentary business, and I would not in any way condemn his absence from the Chamber, but this matter has already been exhaustively discussed and, if he will forgive me, I shall not respond to that comment.

We have this basic fallacy at the heart of this so-called impartial committee with one biased member balanced by another biased member and the independent lawyer in the middle as chairman. I put this point to the Under-Secretary. If the Lord Chancellor is to appoint that person as the balancing member, and the Minister is to take the decision in the issue, would it not be more desirable, and more clearly seen to be independent and impartial, if the Lord Chancellor were to appoint all three members? Panels could be recruited but the Lord Chancellor could have the independent appointment of all three members. That might be preferable.

Then we have the rather peculiar situation that if the Secretary of State overrides the advice of the committee he has to lay an order before Parliament. This was the great answer of the Under-Secretary to my objection about the possibility, the faint and remote possibility, that there might be a Secretary of State who might himself be politically biased. It is a suggestion that I would not dream of pressing but it might occasionally arise. There is the faint eventuality that we might have a politically-biased Secretary of State. The Under-Secretary said "There is the great protection of Parliament, because he can lay an order before Parliament for negative resolution".

Would the Under-Secretary like to give me an estimate of what percentage of Prayers to annul resolutions have actually been debatable in this House and have had time for debate? I have tried to check but the figures do not seem to be available. I put it at between 10 and 20 per cent. In other words, it is four to one on, at the very best, that no resolution under the negative procedure will get any chance of debate in this House. So much for parliamentary protection.

An order becomes effective when laid, and ordinarily after 40 days it cannot be annulled if there is no opportunity for debate. If by chance we got a debate, what a splendid debate it would be. We are to have an order put forward by the Secretary of State saying "I consider that information—I cannot tell you what it is—ought to be disclosed to trade unions, and I would like to make this order." Those who might be opposed to it would have to say that the information, of which they were not aware, should not be disclosed to a trade union. What an illuminating, splendid debate it would be, with unknown information being debated between the two sides, one side saying "No" and the other side saying "Yes" and no one having the slightest idea what he was supposed to be talking about!

If that is not Gilbertian in the extreme —and the Under-Secretary has the nerve to describe our proposals as Gilbertian—I really do not know what is. The final outcome of this appeal procedure shows just how ludicrous the whole procedure is that at a time of economic crisis for this country Parliament should be debating a proposal so ludicrous and so irrelevant as the introduction of this complicated panjandrum of law into a matter which is certainly of vital importance to employees and companies but which should be able to be dealt with within the factory or the company, a matter on which Parliament should not he trying to legislate in this appalling and complicated way.

Sir Raymond Gower

I believe that the position is even more Gilbertian, if that is possible, than my hon. Friend has described, because in answer to a point I made earlier the Minister said that there was a definition of "special reasons". The new clause passed yesterday says that for the purposes of this

Act special reasons apply "if the Minister considers"—and then we find that a company can require the matter to be referred to the advisory committee if the company claims that for special reasons the information should not he furnished. If we go back to the definition of "special reasons" we find that it is "if the Minister considers". Therefore, is not the position even more Gilbertian than my hon. Friend states, and have not the Government got themselves in their drafting into a most appalling hiatus?

Mr. King

It was a line in Gilbert referring to parliamentary draftsmen, which said: We only suffer To ride on a buffer In Parliamentary trains. In due deference, it would be extremely unkind to apply that to the parliamentary draftsman in this case. Blame for the present situations rests on the Government and on Ministers who have tried to introduce a concept which turns into a legal nightmare. I have every sympathy with the draftsmen. I fancy that they are the only people who still understand all this, with great respect to my hon. Friend the Member for Tonbridge and Mailing (Mr. Stanley), who may well be the only other one who understands it.

The complexities are quite extraordinary, and my hon. Friend's intervention on the complication of "special reasons" serves only to emphasise that point. This whole debate and this final climax of the question of the advisory committee or appeal tribunal, call it what one will, has illustrated the unsatisfactory nature of this whole situation. It is for that reason that we shall certainly press our amendment to a Division.

Question put, That the amendment to the proposed amendment be made:—

The House divided: Ayes 253, Noes 297.

Division No. 270.] AYES [7.00 p.m.
Adley, Robert Bennett, Sir Frederic (Torbay) Boyson, Dr Rhodes (Brent)
Aitken, Jonathan Bennett, Dr Reginald (Fareham) Bradford, Rev Robert
Alison, Michael Benyon, W. Braine, Sir Bernard
Amery, Rt Hon Julian Bitten, John Brittan, Leon
Arnold, Tom Biggs-Davison, John Brotherton, Michael
Atkins, Rt Hon H. (Spelthorne) Blaker, Peter Brown, Sir Edward (Bath)
Awdry, Daniel Body, Richard Bryan, Sir Paul
Baker, Kenneth Boscawen, Hon Robert Buck, Antony
Banks, Robert Bottomley, Peter Budgen, Nick
Bell, Ronald Bowden, A. (Brighton, Kemptown) Bulmer, Esmond
Burden, F. A. Hurd, Douglas Pink, R. Bonner
Butler, Adam (Bosworth) Hutchison, Michael Clark Powell, Rt Hon J. Enoch
Carlisle, Mark Irvine, Bryant Godman (Rye) Price, David (Eastleigh)
Chalker, Mrs Lynda Irving, Charles (Cheltenham) Prior, Rt Hon James
Churchill, W. S. James, David Pym. Rt Hon Francis
Clark, Alan (Plymouth, Sutton) Jenkin, Rt Hon P. (Wanst'd & W'df 'd) Raison, Timothy
Clark, William (Croydon S) Jessel, Toby Rathbone, Tim
Clarke, Kenneth (Rushcliffe) Johnson Smith, G. (E Grinstead) Rawlinson, Rt Hon Sir Peter
Clegg, Walter Jones, Arthur (Daventry) Rees, Peter (Dover & Deal)
Cockcroft, John Jopling, Michael Rees-Davies, W. R.
Cooke, Robert (Bristol W) Kaberry, Sir Donald Renton, Rt Hon Sir D. (Hunts)
Cope, John Kellett-Bowman, Mrs Elaine Renton, Tim (Mid-Sussex)
Cormack, Patrick Kershaw, Anthony Rhys Williams, Sir Brandon
Crouch, David Kimball, Marcus Ridley, Hon Nicholas
Crowder, F. P. King, Evelyn (South Dorset) Ridsdale, Julian
Davies, Rt Hon J. (Knutstord) King, Tom (Bridgwater) Rifkind, Malcolm
Dean, Paul (N Somerset) Kitson, Sir Timothy Roberts, Michael (Cardiff NW)
Dodsworth, Geoffrey Knight, Mrs Jill Roberts, Wyn (Conway)
Drayson, Burnaby Knox, David Ross, William (Londonderry)
du Cann, Rt Hon Edward Lamont, Norman Rossi, Hugh (Hornsey)
Dunlop, John Lane. David Rost, Peter (SE Derbyshire)
Durant, Tony Langford-Holt, Sir John Royle, Sir Anthony
Dykes, Hugh Latham, Michael (Melton) Sainsbury, Tim
Eden, Rt Hon Sir John Lawrence, Ivan St. John-Stevas, Norman
Edwards, Nicholas (Pembroke) Lawson, Nigel Scott, Nicholas
Elliott, Sir William Le Marchant, Spencer Scott-Hopkins, James
Emery, Peter Lester, Jim (Beeston) Shaw, Giles (Pudsey)
Eyre, Reginald Lewis, Kenneth (Rutland) Shaw, Michael (Scarborough)
Fairbairn, Nicholas Lloyd, Ian Shelton, William (Streatham)
Farr, John Loveridge, John Shepherd, Colin
Fell, Anthony Luce, Richard Shersby, Michael
Finsberg, Geoffrey McAdden, Sir Stephen Sims, Roger
Fisher, Sir Nigel McCrindle, Robert Sinclair, Sir George
Fletcher, Alex (Edinburgh N) McCusker, H. Skeet, T. H. H.
Fletcher-Cooke, Charles Macfarlane, Neil Smith, Dudley (Warwick)
Fookes, Miss Janet MacGregor, John Speed, Keith
Fowler, Norman (Sutton C'f'd) Macmillan, Rt Hon M. (Farnham) Spence, John
Fox, Marcus McNair-Wilson, M. (Newbury) Spicer, Jim (W Dorset)
Fraser, Rt Hon H. (Stafford & St) McNair-Wilson, P. (New Forest) Spicer, Michael (S Worcester)
Fry, Peter Madel, David Sproat, Iain
Galbraith, Hon. T. G. D. Marshall, Michael (Arundel) Stainton, Keith
Gardiner, George (Reigate) Marten, Neil Stanbrook, Ivor
Gardner, Edward (S Fylde) Mates, Michael Stanley, John
Gilmour, Rt Hon Ian (Chesham) Mather, Carol Steen, Anthony (Wavertree)
Gilmour, Sir John (East Fife) Maude, Angus Stewart, Ian (Hitchin)
Glyn, Dr Alan Maudling, Rt Hon Reginald Stokes, John
Godber, Rt Hon Joseph Mawby, Ray Stradling Thomas, J.
Goodhart, Philip Maxwell-Hyslop, Robin Tapsell, Peter
Goodhew, Victor Mayhew, Patrick Taylor, R. (Croydon NW)
Goodlad, Alastair Meyer, Sir Anthony Taylor, Teddy (Cathcart)
Gorst, John Miller, Hal (Bromsgrove) Temple-Morris, Peter
Gow, Ian (Eastbourne) Mills, Peter Thatcher, Rt Hon Margaret
Gower, Sir Raymond (Barry) Mitchell, David (Basingstoke) Thomas, Rt Hon P. (Hendon S)
Grant, Anthony (Harrow C) Moate, Roger Townsend, Cyril D.
Griffiths, Eldon Molyneaux, James Trotter, Neville
Grist, Ian Montgomery, Fergus Tugendhat, Christopher
Grylls, Michael Moore, John (Croydon C) van Straubenzee, W. R.
Hall, Sir John More, Jasper (Ludlow) Vaughan, Dr. Gerard
Hall-Davis, A. G. F. Morgan, Geraint Viggers, Peter
Hamilton, Michael (Salisbury) Morris, Michael (Northampton S) Wakeham, John
Hampson, Dr Keith Morrison, Charles (Devizes) Walker, Rt Hon P. (Worcester)
Hannam,John Morrison, Hon Peter (Chester) Walters, Dennis
Harrison, Col Sir Harwood (Eye) Mudd, David Warren, Kenneth
Hastings, Stephen Neave, Airey Weatherill, Bernard
Havers, Sir Michael Nelson, Anthony Wells, John
Hawkins, Paul Neubert, Michael Whitelaw, Rt Hon William
Hayhoe, Barney Newton, Tony Wiggin, Jerry
Heath, Rt Hon Edward Normanton, Tom Winterton, Nicholas
Heseltine, Michael Nott, John Wood, Rt Hon Richard
Hicks, Robert Oppenheim, Mrs Sally Young, Sir G. (Ealing, Acton)
Higgins, Terence L. Osborn, John Younger, Hon George
Holland, Philip Page, John (Harrow West)
Hordern, Peter Page, Rt Hon R. Graham (Crosby) TELLERS FOR THE AYES:
Howe, Rt Hon Sir Geoffrey Parkinson, Cecil Mr. Fred Silvester and
Howell, David (Guildford) Pattie, Geoffrey Mr. Anthony Berry.
Howell, Ralph (North Norfolk) Peyton, Rt Hon John
Abse, Leo Ashton, Joe Bates, Alf
Allaun, Frank Atkins, Ronald (Preston N) Bean, R. E.
Anderson, Donald Bagier, Gordon A. T. Beith, A. J.
Archer, Peter Bain, Mrs Margaret Benn, Rt Hon Anthony Wedgwood
Armstrong, Ernest Barnett, Guy (Greenwich) Bennett, Andrew (Stockport N)
Ashley, Jack Barnett, Rt Hon Joel (Heywood) Bidwell, Sydney
Bishop, E. S. Grimond, Rt Hon J. Morris, Rt Hon J. (Aberavon)
Blenkinsop, Arthur Grocott, Bruce Moyle, Roland
Boardman, H. Hamilton, James (Bothwell) Mulley, Rt Hon Frederick
Booth, Albert Hamilton, W. W. (Central Fife) Newens, Stanley
Boothroyd, Miss Betty Hardy, Peter Noble, Mike
Bottomley, Rt Hon Arthur Harrison, Walter (Wakefield) Oakes, Gordon
Boyden, James (Bish Auck) Hart, Rt Hon Judith Ogden, Eric
Bradley, Tom Hattersley, Rt Hon Roy O'Halloran, Michael
Bray, Dr Jeremy Hatton, Frank O'Malley, Rt Hon Brian
Brown, Hugh D. (Provan) Hayman, Mrs Helene Orbach, Maurice
Brown, Robert C. (Newcastle W) Healey, Rt Hon Denis Orme, Rt Hon Stanley
Brown, Ronald (Hackney S) Heffer, Eric S. Ovenden, John
Buchan, Norman Henderson, Douglas Owen, Dr David
Buchanan, Richard Hooley, Frank Padley, Waiter
Callaghan, Jim (Middleton & P) Hooson, Emlyn Palmer, Arthur
Campbell, Ian Horam, John Pardoe, John
Canavan, Dennis Howells, Geraint (Cardigan) Park, George
Cant, R. B. Hoyle, Doug (Nelson) Parker, John
Carter, Ray Huckfield, Les Parry, Robert
Carter-Jones, Lewis Hughes, Rt Hon C (Anglesey) Pavitt, Laurie
Cartwright, John Hughes, Mark (Durham) Penhaligon, David
Castle, Rt Hon Barbara Hughes, Robert (Aberdeen N) Phipps, Dr Colin
Clemitson, Ivor Hughes, Roy (Newport) Prentice, Rt Hon Reg
Cocks, Michael (Bristol S) Hunter, Adam Prescott, John
Cohen, Stanley Irvine, Rt Hon Sir A. (Edge Hill) Price, C. (Lewisham W)
Coleman, Donald Irving, Rt Hon S. (Dartford) Price, William (Rugby)
Concannon, J. D. Jackson, Colin (Brighouse) Radice, Giles
Conlan, Bernard Jackson, Miss Margaret (Lincoln) Reid, George
Cook, Robin F. (Edin C) Janner, Greville Richardson, Miss Jo
Corbett, Robin Jay, Rt Hon Douglas Roberts, Albert (Normanton)
Cox, Thomas (Tooting) Jeger, Mrs Lena Roberts, Gwilym (Cannock)
Craigen, J. M. (Maryhill) Jenkins, Hugh (Putney) Robertson, John (Paisley)
Crawford, Douglas Jenkins, Rt Hon Roy (Stechford) Roderick, Caerwyn
Crawshaw, Richard John, Brynmor Rodgers, George (Chorley)
Crosland, Rt Hon Anthony Johnson, James (Hull West) Rodgers, William (Stockton)
Cryer, Bob Johnston, Russell (Inverness) Rooker, J. W.
Cunningham, G. (Islington S) Jones, Alec (Rhondda) Roper, John
Cunningham, Dr J. (Whiteh) Jones, Barry (East Flint) Rose, Paul B.
Dalyell, Tam Jones, Dan (Burnley) Ross, Stephen (Isle of Wight)
Davidson, Arthur Judd, Frank Rowlands, Ted
Davies, Bryan (Enfield N) Kaufman, Gerald Ryman, John
Davies, Denzil (Llanelli) Kelley, Richard Sedgemore, Brian
Davies, Ifor (Gower) Kerr, Russell Selby, Harry
Davis, Clinton (Hackney C) Kilroy-Silk, Robert Shaw, Arnold (Ilford South)
Deakins, Eric Kinnock, Neil Sheldon, Robert (Ashton-u-Lyne)
Dean, Joseph (Leeds West) Lambie, David Shore, Rt Hon Peter
de Freitas, Rt Hon Sir Geoffrey Lamborn, Harry Short, Rt Hon E. (Newcastle C)
Delargy, Hugh Lamond, James Silkin, Rt Hon John (Deptford)
Dell, Rt Hon Edmund Lee, John Silkin, Rt Hon S. C. (Dulwich)
Dempsey, James Lestor, Miss Joan (Eton & Slough) Sillars, James
Doig, Peter Lever, Rt Hon Harold Silverman, Julius
Dormand, J. D. Lewis, Arthur (Newham N) Skinner, Dennis
Douglas-Mann, Bruce Lewis, Ron (Carlisle) Smith, Cyril (Rochdale)
Duffy, A. E. P. Lipton, Marcus Smith, John (N Lanarkshire)
Dunn, James A. Litterick, Tom Snape, Peter
Dunnett, Jack Lomas, Kenneth Spearing, Nigel
Dunwoody, Mrs Gwyneth Loyden, Eddie Spriggs, Leslie
Eadie, Alex Luard, Evan Stallard, A. W.
Edge, Geoff Lyons, Edward (Bradford W) Steel, David (Roxburgh)
Ellis, Tom (Wrexham) McCartney, Hugh Stewart, Rt Hon M. (Fulham)
English, Michael MacFarquhar, Roderick Stoddart, David
Ennals, David McGuire, Michael (Ince) Stott, Roger
Evans, Gwynfor (Carmarthen) Mackenzie, Gregor Strang, Gavin
Evans, Ioan (Aberdare) Mackintosh, John P. Strauss, Rt Hon G. R.
Evans, John (Newton) McMillan, Tom (Glasgow C) Summerskill, Hon Dr Shirley
Fernyhough, Rt Hon E. McNamara, Kevin Swain, Thomas
Fitch, Alan (Wigan) Madden, Max Taylor, Mrs Ann (Bolton W)
Flannery, Martin Magee, Bryan Thomas, Dafydd (Merioneth)
Fletcher, Ted (Darlington) Mahon, Simon Thomas, Jeffrey (Abertillery)
Foot, Rt Hon Michael Mallalieu, J. P. W. Thomas, Mike (Newcastle E)
Ford, Ben Marks, Kenneth Thomas, Ron (Bristol NW)
Forrester, John Marquand, David Thorne, Stan (Preston South)
Fowler, Gerald (The Wrekin) Marshall, Dr Edmund (Goole) Thorpe, Rt Hon Jeremy (N Devon)
Fraser, John (Lambeth, N'w'd) Marshall, Jim (Leicester S) Tierney, Sydney
Garrett, John (Norwich S) Mason, Rt Hon Roy Tinn, James
Garrett, W. E. (Wallsend) Maynard, Miss Joan Tomilnson, John
George, Bruce Meacher, Michael Tomney, Frank
Gilbert, Dr John Mellish, Rt Hon Robert Torney, Tom
Ginsburg, David Mikardo, Ian Tuck, Raphael
Golding, John Miller, Dr M. S. (E Kilbride) Urwin, T. W.
Gould, Bryan Mitchell, R. C. (Soton, Itchen) Varley, Rt Hon Eric G.
Gourlay, Harry Molloy, William Wainwright, Edwin (Dearne V)
Graham, Ted Moonman, Eric Wainwright, Richard (Colne V)
Grant, George (Morpeth) Morris, Alfred (Wythenshawe) Walden, Brian (B'ham, L'dyw'd)
Grant, John (Islington C) Morris, Charles R. (Openshaw) Walker, Harold (Doncaster)
Walker, Terry (Kingswood) White, James (Pollok) Wise, Mrs Audrey
Ward, Michael Whitlock, William Woodall, Alec
Watkins, David Wigley, Dafydd Woof, Robert
Watkinson, John Williams, Alan (Swansea W) Wrigglesworth, Ian
Watt, Hamish Williams, Alan Lee (Hornch'ch) Young, David (Bolton E)
Weetch, Ken Williams, Rt Hon Shirley (Hertford)
Weitzman, David Williams, W. T. (Warrington) TELLERS FOR THE NOES:
Wellbeloved, James Wilson, Alexander (Hamilton) Mr. Josepn Harper and
Welsh, Andrew Wilson, William (Coventry SE) Mr. John [...]
White, Frank R. (Bury)

Question accordingly negatived.

Amendment (6) proposed to the proposed amendment, in subsection (1), leave out 'advisory' and insert 'appeal'.—[Mr. Richard Wainwright.]

Question put, That the amendment to the proposed amendment be made:—

The House divided: Ayes 267, Noes 227.

Division No. 271.] AYES [7.13 p.m.
Adley, Robert Fell, Anthony King, Tom (Bridgwater)
Aitken, Jonathan Finsberg, Geoffrey Kitson, Sir Timothy
Alison, Michael Fisher, Sir Nigel Knight, Mrs Jill
Amery, Rt Hon Julian Fletcher, Alex (Edinburgh N) Knox, David
Arnold, Tom Fletcher-Cooke, Charles Lamont, Norman
Atkins, Rt Hon H. (Spelthorne) Fookes, Miss Janet Lane, David
Awdry, Daniel Fowler, Norman (Sutton C'f'd) Langford-Holt, Sir John
Bain, Mrs Margaret Fox, Marcus Latham, Michael (Melton)
Baker, Kenneth Fraser, Rt Hon H. (Stafford & St) Lawson, Nigel
Banks, Robert Fry, Peter Le Marchant, Spencer
Beith, A. J. Galbraith, Hon, T. G. D. Lester, Jim (Beeston)
Bell, Ronald Gardiner, George (Reigate) Lewis, Kenneth (Rutland)
Bennett, Sir Frederic (Torbay) Gardner, Edward (S Fylde) Lloyd, Ian
Bennett, Dr Reginald (Fareham) Gilmour, Rt Hon Ian (Chesham) Loveridge, John
Benyon, W. Gilmour, Sir John (East Fife) Luce, Richard
Berry, Hon Anthony Glyn, Dr Alan McAdden, Sir Stephen
Bitten, John Godber, Rt Hon Joseph McCrindle, Robert
Biggs-Davison, John Goodhart, Philip Macfarlane, Neil
Blaker, Peter Goodhew, Victor MacGregor, John
Body, Richard Goodlad, Alastair Macmillan, Rt Hon M. (Farnham)
Boscawen, Hon Robert Gorst, John McNair-Wilson, M. (Newbury)
Bottomley, Peter Gow, Ian (Eastbourne) McNair-Wilson, P. (New Forest)
Bowden, A. (Brighton, Kemptown) Gower, Sir Raymond (Barry) Madel, David
Boyson, Dr Rhodes (Brent) Grant, Anthony (Harrow C) Marshall, Michael (Arundel)
Braine, Sir Bernard Griffiths, Eldon Marten, Neil
Brittan, Leon Grimond, Rt Hon J. Mates, Michael
Brotherton, Michael Grist, Ian Mather, Carol
Brown, Sir Edward (Bath) Grylls, Michael Maude, Angus
Bryan, Sir Paul Hall, Sir John Maudling, Rt Hon Reginald
Buck, Antony Hall-Davis, A. G. F. Mawby, Ray
Budgen, Nick Hamilton, Michael (Salisbury) Maxwell-Hyslop, Robin
Bulmer, Esmond Hampson, Dr Keith Mayhew, Patrick
Burden, F. A. Hannam, John Meyer, Sir Anthony
Butler, Adam (Bosworth) Harrison, Col Sir Harwood (Eye) Miller, Hal (Bromsgrove)
Carlisle, Mark Hastings, Stephen Mills, Peter
Chalker, Mrs Lynda Havers, Sir Michael Mitchell, David (Basingstoke)
Churchill, W. S. Hawkins, Paul Moate, Roger
Clark, Alan (Plymouth, Sutton) Hayhoe, Barney Montgomery, Fergus
Clark, William (Croydon S) Heath, Rt Hon Edward Moore, John (Croydon C)
Clarke, Kenneth (Rushcliffe) Henderson, Douglas More, Jasper (Ludlow)
Clegg, Walter Heseltine, Michael Morgan, Geraint
Cockcroft, John Hicks, Robert Morris, Michael (Northampton S)
Cooke, Robert (Bristol W) Higgins, Terence L. Morrison, Charles (Devizes)
Cope, John Holland, Philip Morrison, Hon Peter (Chester)
Cordle, John H. Hordern, Peter Mudd, David
Cormack, Patrick Howe, Rt Hon Sir Geoffrey Neave, Airey
Crawford, Douglas Howell, David (Guildford) Nelson, Anthony
Crouch, David Howell, Ralph (North Norfolk) Neubert, Michael
Crowder, F. P. Hurd, Douglas Newton, Tony
Davies, Rt Hon J. (Knutsford) Hutchison, Michael Clark Normanton, Tom
Dean, Paul (N Somerset) Irvine, Bryant Godman (Rye) Nott, John
Dodsworth, Geoffrey Irving, Charles (Cheltenham) Oppenheim, Mrs Sally
Drayson, Burnaby James, David Osborn, John
du Cann, Rt Hon Edward Jenkin, Rt Hon P. (Wanst'd & W'df'd) Page, John (Harrow West)
Durant, Tony Jessel, Toby Page, Rt Hon R. Graham (Crosby)
Dykes, Hugh Johnson Smith, G. (E Grinstead) Pardoe, John
Eden, Rt Hon Sir John Johnston, Russell (Inverness) Parkinson, Cecil
Edwards, Nicholas (Pembroke) Jones, Arthur (Daventry) Pattie, Geoffrey
Elliott, Sir William Jopling, Michael Penhaligon, David
Emery, Peter Kaberry, Sir Donald Peyton, Rt Hon John
Evans, Gwynfor (Carmarthen) Kellett-Bowman, Mrs Elaine Pink, R. Bonner
Eyre, Reginald Kershaw, Anthony Price, David (Eastleigh)
Fairbairn, Nicholas Kimball, Marcus Pym, Rt Hon Francis
Farr, John King, Evelyn (South Dorset) Raison, Timothy
Rathbone, Tim Sims, Roger Townsend, Cyril D.
Rawlinson, Rt Hon Sir Peter Sinclair, Sir George Trotter, Neville
Rees, Peter (Dover & Deal) Skeet, T. H. H. Tugendhat, Christopher
Rees-Davies, W. R. Smith, Cyril (Rochdale) van Straubenzee, W. R.
Reid, George Smith, Dudley (Warwick) Vaughan, Dr. Gerard
Renton, Rt Hon Sir D. (Hunts) Speed, Keith Viggers, Peter
Renton, Tim (Mid-Sussex) Spence, John Wainwright, Richard (Colne V)
Rhys Williams, Sir Brandon Spicer, Jim (W Dorset) Wakeham, John
Ridley, Hon Nicholas Spicer, Michael (S Worcester) Walker, Rt Hon P. (Worcester)
Ridsdale, Julian Sproat, Iain Walters, Dennis
Rifkind, Malcolm Stainton, Keith Warren, Kenneth
Roberts, Michael (Cardiff NW) Stanbrook, Ivor Watt, Hamish
Roberts, Wyn (Conway) Stanley, John Weatherill, Bernard
Ross, Stephen (Isle of Wight) Steel, David (Roxburgh) Wells, John
Rossi, Hugh (Hornsey) Steen, Anthony (Wavertree) Welsh, Andrew
Host, Peter (SE Derbyshire) Stewart, Ian (Hitchin) Whitelaw, Rt Hon William
Royle, Sir Anthony Stokes, John Wiggin, Jerry
Sainsbury, Tim Stradling Thomas, J. Wigley, Dafydd
St. John-Stevas, Norman Tapsell, Peter Winterton, Nicholas
Scott, Nicholas Taylor, R. (Croydon NW) Wood, Rt Hon Richard
Scott-Hopkins, James Taylor, Teddy (Cathcart) Young, Sir G. (Ealing, Acton)
Shaw, Giles (Pudsey) Temple-Morris, Peter Younger, Hon George
Shaw, Michael (Scarborough) Thatcher, Rt Hon Margaret
Shelton, William (Streatham) Thomas, Dafydd (Merioneth) TELLERS FOR THE AYES:
Shepherd, Colin Thomas, Rt Hon P. (Hendon S) Mr. Emlyn Hooson and
Shersby, Michael Thorpe, Rt Hon Jeremy (N Devon) Mr. Geraint Howells.
Silvester, Fred
Abse, Leo Davies, Denzil (Llanelli) Hoyle, Doug (Nelson)
Allaun, Frank Davies, Ifor (Gower) Huckfield, Les
Anderson, Donald Davis, Clinton (Hackney C) Hughes, Rt Hon C (Anglesey)
Archer, Peter Deakins, Eric Hughes, Mark (Durham)
Armstrong, Ernest Dean, Joseph (Leeds West) Hughes, Robert (Aberdeen N)
Ashley, Jack de Freitas, Rt Hon Sir Geoffrey Hughes, Roy (Newport)
Ashton, Joe Delargy, Hugh Hunter, Adam
Atkins, Ronald (Preston N) Dell, Rt Hon Edmund Irvine, Rt Hon Sir A. (Edge Hill)
Bagier, Gordon A. T. Dempsey, James Irving, Rt Hon S. (Dartford)
Barnett, Guy (Greenwich) Doig, Peter Jackson, Colin (Brighouse)
Barnett, Rt Hon Joel (Heywood) Dormand, J. D. Jackson, Miss Margaret (Lincoln)
Bates, Alf Douglas-Mann, Bruce Janner, Greville
Bean, R. E. Duffy, A. E. P. Jay, Rt Hon Douglas
Benn, Rt Hon Anthony Wedgwood Dunn, James A. Jeger, Mrs Lena
Bennett, Andrew (Stockport N) Dunnett, Jack Jenkins, Hugh (Putney)
Bidwell, Sydney Dunwoody, Mrs Gwyneth John, Brynmor
Bishop, E. S. Eadie, Alex Johnson, James (Hull West)
Blenkinsop, Arthur Edge, Geoff Jones, Alec (Rhondda)
Boardman, H. Ellis, Tom (Wrexham) Jones, Barry (East Flint)
Booth, Albert English, Michael Jones, Dan (Burnley)
Boothroyd, Miss Betty Ennals, David Judd, Frank
Bottomley, Rt Hon Arthur Evans, Ioan (Aberdare) Kaufman, Gerald
Boyden, James (Bish Auck) Evans, John (Newton) Kelley, Richard
Bradley, Tom Fernyhough, Rt Hon E. Kerr, Russell
Bray, Dr Jeremy Fitch, Alan (Wigan) Kilroy-Silk, Robert
Brown, Hugh D. (Provan) Flannery, Martin Kinnock, Neil
Brown, Robert C. (Newcastle W) Fletcher, Ted (Darlington) Lambie, David
Brown, Ronald (Hackney S) Foot, Rt Hon Michael Lamborn, Harry
Buchan, Norman Ford, Ben Lamond, James
Buchanan, Richard Forrester, John Leadbitter, Ted
Callaghan, Jim (Middleton & P) Fowler, Gerald (The Wrekin) Lee, John
Campbell, Ian Fraser, John (Lambeth, N'w'd) Lestor, Miss Joan (Eton & Slough)
Canavan, Dennis Garrett, John (Norwich S) Lever, Rt Hon Harold
Cant, R. B. Garrett, W. E. (Wallsend) Lewis, Arthur (Newham N)
Carter, Ray George, Bruce Lewis, Ron (Carlisle)
Carter-Jones, Lewis Gilbert, Dr John Lipton, Marcus
Cartwright, John Ginsburg, David Litterick, Tom
Castle, Rt Hon Barbara Golding, John Lomas, Kenneth
Clemitson, Ivor Gould, Bryan Loyden, Eddie
Cocks, Michael (Bristol S) Gourlay, Harry Luard, Evan
Cohen, Stanley Graham, Ted Lyons, Edward (Bradford W)
Coleman, Donald Grant, George (Morpeth) McCartney, Hugh
Concannon, J. D. Grant, John (Islington C) MacFarquhar, Roderick
Conlan, Bernard Grocott, Bruce McGuire, Michael (Ince)
Cook, Robin F. (Edin C) Hamilton, James (Bothwell) Mackenzie, Gregor
Corbett, Robin Hamilton, W. W. (Central Fife) Mackintosh. John P.
Cox, Thomas (Tooting) Hardy, Peter McMillan, Tom (Glasgow C)
Cralgen, J. M. (Maryhill) Harrison, Walter (Wakefield) McNamara, Kevin
Crawshaw, Richard Hart, Rt Hon Judith Madden, Max
Crosland, Rt Hon Anthony Hattersley, Rt Hon Roy Magee, Bryan
Cryer, Bob Hatton, Frank Mahon, Simon
Cunningham, G. (Islington S) Hayman, Mrs Helene Mallalieu, J. P. W.
Cunningham, Dr J. (Whiteh) Healey, Rt Hon Denis Marks, Kenneth
Dalyell, Tam Heffer, Eric S. Marquand, David
Davidson, Arthur Hooley, Frank Marshall, Dr Edmund (Goole)
Davies, Bryan (Enfield N) Horam, John Marshall, Jim (Leicester S)
Mason, Rt Hon Roy Roberts, Gwilym (Cannock) Thorne, Stan (Preston South)
Maynard, Miss Joan Robertson, John (Paisley) Tierney, Sydney
Meacher, Michael Roderick, Caerwyn Tinn, James
Mellish, Rt Hon Robert Rodgers, George (Chorley) Tomlinson, John
Mikardo, Ian Rodgers, William (Stockton) Tomney, Frank
Miller, Dr M. S. (E Kilbride) Rooker, J. W. Torney, Tom
Mitchell, R. C. (Soton, Itchen) Roper, John Tuck, Raphael
Molloy, William Rose, Paul B. Urwin, T. W.
Moonman, Eric Rowlands, Ted Varley, Rt Hon Eric G.
Morris, Alfred (Wythenshawe) Ryman, John Wainwright, Edwin (Dearne V)
Morris, Charles R. (Openshaw) Sandelson, Neville Walden, Brian (B'ham, L'dyw'd)
Morris, Rt Hon J. (Aberavon) Sedgemore, Brian Walker, Harold (Doncaster)
Moyle, Roland Selby, Harry Walker, Terry (Kingswood)
Mulley, Rt Hon Frederick Shaw, Arnold (Ilford South) Ward, Michael
Newens, Stanley Sheldon, Robert (Ashton-u-Lyne) Watkins, David
Noble, Mike Shore, Rt Hon Peter Watkinson, John
Oakes, Gordon Short, Rt Hon E. (Newcastle C) Weetch, Ken
Ogden, Eric Silkin, Rt Hon John (Deptford) Weitzman, David
O'Halloran, Michael Silkin, Rt Hon S. C. (Dulwich) Wellbeloved, James
O'Malley, Rt Hon Brian Sillars, James White, Frank R. (Bury)
Orbach, Maurice Silverman, Julius White, James (Pollok)
Orme, Rt Hon Stanley Skinner, Dennis Whitlock, William
Ovenden, John Smith, John (N Lanarkshire) Williams, Alan (Swansea W)
Owen, Dr David Snape, Peter Williams, Alan Lee (Hornch'ch)
Padley, Walter Spearing, Nigel Williams, Rt Hon Shirley (Hertford)
Palmer, Arthur Spriggs, Leslie Williams, W. T. (Warrington)
Park, George Stallard, A. W. Wilson, Alexander (Hamilton)
Parker, John Slewart, Rt Hon M. (Fulham) Wilson, William (Coventry SE)
Parry, Robert Stoddart, David Wise, Mrs Audrey
Pavitt, Laurie Stott, Roger Woodall, Alec
Phipps, Dr Colin Strang, Gavin Woof, Robert
Prentice, Rt Hon Reg Strauss, Rt Hon G. R. Wrigglesworth, Ian
Prescott, John Summerskill, Hon Dr Shirley Young, David (Bolton E)
Price, C. (Lewisham W) Swain, Thomas
Price, William (Rugby) Taylor, Mrs Ann (Bolton W) TELLERS FOR THE NOES:
Radice, Giles Thomas, Jeffrey (Abertillery) Mr. Joseph Harper and
Richardson, Miss Jo Thomas, Mike (Newcastle E) Mr. John Ellis.
Roberts, Albert (Normanton) Thomas, Ron (Bristol NW)

Question accordingly negatived.

Amendment agreed to.

Amendment made: No. 110, in a page 16, line 35, leave out 'applicant and each such representative' and insert 'company or companies concerned and each relevant trade union's representative'.

No. 111, in page 16, line 37, leave out application' and insert 'reference'.

No. 112, in page 16, line 38, leave out subsections (5) to (7) and insert— '(5) The advisory committee shall consider any representations made under subsection (4) above and shall make a report to the Minister after the close of their consideration, giving their findings of fact and their recommendations. (6) Where a matter has been referred to the committee, the Minister may make a final decision relating to his proposal only after receiving and considering the committee's report on it. (7) Subject to subsection (11) below, where there has been a reference, the Minister shall notify—

  1. (a) the company or companies concerned;
  2. (b) the representative of each relevant trade union; and
  3. (c) the advisory committee,
of his final decision; and a notice under this subsection shall be treated as requiring the information specified in it to be furnished to a representative of each relevant trade union. (8) The Minister's notice under subsection (7) above to the company or companies concerned and to the representative of each relevant trade union shall state whether or not he accepted the committee's advice. (9) Where there has been no reference to the advisory committee, the Minister may notify the company or companies concerned and each relevant trade union's representative at the end of the period specified in his provisional notice under section 22 above, that that notice is to be treated as containing his final decision. (10) A notice under subsection (9) above shall state that the provisional notice is to be treated as requiring the information specified in it to be furnished to a representative of each trade union. (11) If—
  1. (a) the Minister's final decision in relation to any information is that it shall be furnished to the representative of each relevant trade union, and
  2. (b) in making that decision he rejected the committee's advice,
he shall make an order specifying the nature (without disclosing the substance) of the information to be furnished contrary to that advice, and accordingly requiring the company or companies concerned to furnish it to the representative of each relevant trade union.
(12) An order under subsection (11) above shall not take effect until the end of a period of 28 days from the date on which it is laid before Parliament. (13) During any such period of 28 days the order shall be subject to annulment in pursuance of a negative resolution of either House of Parliament. (14) In reckoning the period of 28 days no account shall be taken of any time during which Parliament is dissolved or prorogued or during which either House adjourn for more than 4 days. (15) This section shall apply with appropriate modifications in any case where only part of the information furnished to the Minister falls to be disclosed to representatives of relevant trade unions'.—[Mr. Varley.]

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