SECONDARY ACTION

HC Deb 28 July 1980 vol 989 cc1206-26

Lords amendment: No. 7, in page 19, line 8, leave out from "services" to first "an" in line 9 and insert "between any person and".

The Secretary of State for Employment (Mr. James Prior)

I beg to move, That this House doth agree with the Lords in the said amendment.

Mr. Deputy Speaker

With this it will be convenient to take the following Lords amendments: No. 8, in page 19, line 13, leave out "the recipient" and insert "or".

No. 9, in page 19, line 17, leave out "recipient" and insert: "other party to the supply referred to in paragraph (a) above".

Mr. Prior

The amendments deal with an anomaly that Labour Members drew attention to when the clause was introduced. Before I explain their precise effect, it may assist the House if I explain the effect of clause 16 (4), which has been the source of some misconception about the extent to which it allows secondary action to be taken against an associated employer or an employer in dispute. Its effects are very limited. It provides for lawful secondary action against associated employers only in very special circumstances. Those are where the employer in dispute transfers work to an associated employer and the secondary action is directed against the work which is transferred.

The subsection does not therefore provide, as some have mistakenly believed, for the automatic extension of secondary action to any employer who is associated with the employer in dispute. It is even limited in its application to the associated employer who is accepting the transfer of work, because it does not allow secondary action that seeks principally to disrupt his normal business. It is only if the common ownership or control of two companies is used to transfer work from the company where there is a strike to another, so as to outflank the strike, that any question of lawful secondary action will arise. Even then it will have to be targeted on the transferred work and not directly on the normal business of the company. This is therefore a narrow provision, but its actions would have been regarded as unfair.

Turning to the effect of the amendments, subsection (4), as originally drafted, gave rise to an anomaly. The limited scope for secondary action, which I have described, was accorded to employees of a customer of the associated company to whom the work was transferred. That customer would usually have been a customer of the employer in dispute. However, subsection (4) as drafted did not make a similar provision for secondary action by the employees of a supplier to the associated employer. That is the anomaly to which hon. Gentlemen drew attention on Report. We undertook then to consider what could be done to remedy it, and these amendments are the result.

Subsection (4) will rarely be at issue. Associated employers are seldom in a position to step into each other's shoes in that way. The subsection protects only secondary action that is principally aimed at the work normally done by the employer in dispute but which is taken over by an associated employer during a dispute. The effect of the amendments will be to add only slightly to the limited scope for lawful secondary action in special circumstances. We accept that the amendments are necessary, in the interests of fairness and consistency, and, on that basis, I commend them to the House.

Mr. Harold Walker

We cannot allow the amendments to pass without a brief comment. The Secretary of State says that they have been produced in response to points that we raised on Report, and I take his word for it. I am grateful to him. It may not be unique, but it is certainly exceptional to hear the Secretary of State say that he has made a concession—tiny though it may be—to the powerful and persuasive arguments of the Opposition.

However, I doubt whether any hon. Member, or even any hon. and learned Member, can pretend to have understood the arguments advanced by the Secretary of State. I certainly do not, but I am prepared to take his word that they meet the points that we raised. We shall all want to read his words carefully when they appear in Hansard.

We have said time and again that the complexity of many of the abstruse legal provisions in the Bill will pose enormous problems not only for those who have to deal with them in court and in legal proceedings generally, but for those engaged in day-to-day industrial relations. We accept that the Secretary of State has made concessions, but we shall study his words carefully in the cold light of day in Hansard.

Mr. John Evans

The siren words of the Secretary of State, suggesting that the Opposition pointed out anomalies in clause 16 and that they had been put right at our request, may have led an uninformed observer to assume that the Opposition were in favour of the clause. In fact, not only are we not in favour of it, but we regard it as one of the most dangerous parts of the Bill.

It is almost impossible to understand what the clause means. If the Secretary of State were honest, he would admit that he does not understand it. I am almost tempted to read the clause word for word to put it on the record, because I remind the House that it will not be Secretaries of State, lawyers or Members who will have to understand clause 16. Thousands of men and women on the shop floor, elected by their colleagues, will have to try to make head or tail of the clause.

The clause could lead to considerable industrial unrest and problems. It is worth pointing out that the trade union movement does not accept the term "secondary picketing" and the vast majority of individuals who work in British industry do not know what the term means. I ask hon. Members to imagine shop stewards committees sitting round, with copies of clause 16 in their hands, debating what the law will or will not allow them to do. I suggest that no hon. Member will be able to challenge me when I say that this is nonsense and that even the minor amendments which the Secretary of State has accepted will not help anyone who is at the sharp end of industry trying to work within the framework of the law.

12.15 am

I am not talking about those who are not interested in the law. I am not talking about those who are anxious to make themselves martyrs and to find themselves in gaol, as they will under this Bill, with all the industrial unrest which will flow from that. I am talking about the overwhelming majority of men and women who believe in the law of the land, who read clause 16 with these amendments and who ask "What on earth does all that gibberish mean?" They will turn to Hansard to discover what Parliament said about it, in Committee where we did not discuss it, on Report, or when considering Lords amendments—[Interruption.] I hope that hon. Members do not object to an hon. Member thinking aloud about this important clause, even though the hour is late. I hope that they recognise that it is the duty of parliamentarians to try to make sense of Bills. If parliamentarians, especially those who have spent hundreds of hours on trade union legislation, say frankly that they have not the faintest idea what clause 16 means, with or without the amendments, how can ordinary people make head or tail of it?

Mr. Harold Walker

Perhaps when the Bill is enacted the Secretary of State will think of issuing with each copy a set of the charts that he used to explain the clause to the press, together with a free sample of the pointer that he used.

Mr. Evans

I am grateful to my right hon. Friend, because the Secretary of State will recall that in Committee I asked him to produce the charts so that members of the Committee might understand what clause 16 meant. Unfortunately, he declined to do so. I agree with my right hon. Friend. It would be of great help to those men and women who have not had the benefit of superior educations and who will be trying to understand clause 16 if the Secretary of State will issue his charts.

When the Secretary of State was trying to explain why he accepted the amendments, he did not burden the House with his explanation of the meaning of clause 16 (4). It is obvious that no one in this House has the faintest idea what it means. Even at this late hour, it is incumbent on the Secretary of State to explain it in detail. I remind the right hon. Gentleman that those of us who are sponsored by trade unions spend a great deal of our time attending weekend schools and addressing branch meetings of trade unions and that we shall have to try to explain what the clause means. I shall have to tell my colleagues in industry that I have not the faintest idea, that Parliament has not the faintest idea, that the Secretary of State has not the faintest idea, and that certainly their Lordships in the other place have not the faintest idea.

Mr. Cyril Smith (Rochdale)

Is the hon. Gentleman saying that he is prepared to vote for or against a clause even though he does not understand it?

Mr. Greville Janner

The Liberals never understand anything.

Mr. Deputy Speaker

The time to understand the clause occurred well before the House came to consider Lords amendments. At the moment, we are dealing with Lords amendment No. 7.

Mr. Evans

That, of course, is the answer to the hon. Member for Rochdale (Mr. Smith) who, as a result of not attending the Committee, has not the faintest idea what any of the clauses mean. The hon. Gentleman was present at only three sittings of the Committee, and it is hardly for him to ask what I intend to do in any Division.

Mr. John Farr (Harborough)

Sit down.

Mr. Evans

Is the hon. Member for Harborough (Mr. Farr) implying that the Tory Party is so arrogant now, with a majority of 70 over Labour, that a Government supporter can instruct a member of the Parliamentary Labour Party to sit down? I tell the hon. Gentleman and every other Tory Member that in no circumstances will any Tory tell me to sit down.

The Secretary of State did the House a disservice by not explaining in more detail the effects of the amendment on a clause that none of us understands.

Mr. Mikardo

I am induced to speak only by the intervention of the hon. Member for Rochdale (Mr. Smith), who seemed to think that it was equally wrong to vote for something one did not understand or to vote against it. Of course it is wrong to vote for a provision that one does not understand, because it means putting on the statute book something whose consequences one does not know, and they may be bad. But if one does not understand an amendment, it is perfectly logical to vote against it. That puts the obligation on legislators to produce legislation that human beings—not merely draftsmen—can understand. Therefore, the incomprehensibility of the clause, with the amendments, is germane.

My hon. Friend the Member for Newton (Mr. Evans) made some valid points on which the Secretary of State should comment. Whatever our other differences, we all want industry to work as peaceably as possibly. Anything which may defeat that objective is to be deplored. My hon. Friend is right to say that 95 per cent. or more of industrial relations work on behalf of the workers is done not by paid union officials but by lay people—conveners and shop stewards—who have learnt all they know from cleaning up the swarf from the shop floor. They are not book learned: they are certainly not law book learned. If one imposes on them obligations that they do not understand, the psychic effect is that they are likely to become confused and frightened and therefore to get a chip on their shoulders. That is most likely when people are confused and do not know what is going on. The very incomprehensibility of the clause will worsen industrial relations in many establishments.

Mr. Andrew F. Bennett (Stockport, North)

Does my hon. Friend agree that this will be a problem not just for trade union officials—particularly stewards who are not fulltime—but also for the police, who have already expressed reluctance to get involved in this area? Will it not be difficult for them to interpret this clause, which will involve them?

Mr. Mikardo

I was coming to that point. I was going to express sympathy for the copper on the beat who suddenly has to look for guidance in dealing with pickets from the two pages of clause 16. I have as much sympathy for him as for the shop steward.

But my basic worry is about difficulties on the shop floor. If the Government proposed to use the other place to amend the Bill, they should have done so to make it more understandable. A number of useful amendments could have been made in the other place—I believe that some were suggested—to reduce the complexity of the clause. Why did not the Government take advantage of the House of Lords, for as long as it remains, to increase the comprehensibility of the Bill instead of leaving it incompresensible? I could then have agreed more enthusiastically with some other Lords amendments than with the trivial amendments that we are now considering.

Mr. Prior

With the leave of the House, I shall reply. This issue was raised on Report and we promised to have a further look at it.

Where a firm is in dispute with its employees and the firm seeks to transfer work to an associated company belonging to the same group, it would be unfair if the employees of the associated company were not able to take action to prevent that additional work being done and to break the strike in that manner. We went a stage further and said that action taken against a customer who is receiving certain goods is secondary action and that that action should have immunity, provided that it is directed principally towards the original dispute and not for other motives. The anomaly which we are trying to correct involves saying that that should be so not only in respect of the customer but in respect of the supplier. The three amendments are designed to do that.

I have always conceded that the clause is difficult and complex because we seek to steer a course between the Trade Union and Labour Relations Act 1974 and the 1976 Act, which gives immunity to trade unions for practically any purposes that they like to perform in any direction and however distant it is from the original dispute, so long as the trade union official feels that it has some relevance to the original dispute. That was confirmed by the judgment on MacShane v. Express Newspapers Ltd. We have sought to narrow that provision.

We also recognise that to take immunity right back so that it allows only for breaches of contract in primary disputes goes to the other extreme. When one tries to find a reasonable and sensible position, one finds oneself in difficulty. However, this is a reasonable and fair attempt at construing a difficult part of the law. The amendments meet a legitimate and long established trade union practice. That shows that the Government have thought genuinely about the matter. On that basis, I ask the House to approve the amendment.

Mr. Harold Walker

The Secretary of State must not go on repeating the canard that it was the action of the last Government that made a breach or the inducement of breach of a contract legitimate and not actionable. For many years the assumption was that that was the clear intention of the Trade Disputes Act 1906. The last Labour Government acted in accordance with the recommendation of the Donovan Commission. The right hon. Gentleman must not continue to repeat something that he has been told many times is a misrepresentation of the position.

Question put and agreed to.

Lords amendments Nos. 8 and 9 agreed to.

Lords amendment: No. 10, in page 19, line 41, leave out from "section" to end of line 43 and insert an employer who is a member of an employers' association which is a party to a trade dispute shall by virtue of his membership be regarded as a party to the dispute if he is represented in the dispute by the accociation, but not otherwise.

12.30 am

Mr. Mayhew

I beg to move, That this House doth agree with the Lords in the said amendment.

This is a drafting amendment moved in the interests of even greater, not to say bionic, clarity.

Mr. Harold Walker

If it is a drafting amendment that clarifies the position, it clarifies something that we apparently overlooked previously. It may well be what my hon. Friend the Member for Bethnal Green and Bow (Mr. Mikardo) described in Committee as a contracting-out provision for the litigious-minded employer. It strikes me as extraordinary that we should provide in the Bill that a member of an employers' association that is in dispute—and because of his membership he is in dispute—can unilaterally make a declaration to opt out of the dispute. Apparently, he can make a declaration that he is not part of the dispute. That is rather extraordinary.

I hope that the Government do not, as appeared to be the case earlier, assume that we shall rest our understanding of the amendments on what was said in another place. I have looked at the record of what was said in another place. On 12 June the noble Lord Renton moved an amendment along the lines of the amendment before us, and said: But there could be occasions when an employer expressly disagreed with the action of the employers' association, or one could perhaps have a very small employer in an out-of-the-way part of the country who was not aware of what was happening but would nevertheless suffer, and who apart from this provision, would be hampered by the expression used here."—[Official Report, House of Lords, 12 June 1980; Vol. 410, c. 732.] In what respect would that employer be hampered, and in doing what? I assume only that he could be hampered in taking legal action that he might not be able to take if he was deemed to be one of the parties in dispute. I wonder what criterion will be used to determine when it is proper for the employer, in such a hypothetical position, to use that option and to say legitimately "I am not part of what is happening nationally".

Last year the Engineering Employers' Federation was engaged in a national engineering dispute. Its several thousand members were affected by the outcome of that dispute. On the assumption that these provisions had then been on the statute book, at what stage could any one of them have said "I want to opt out and then I can exercise my right to go to court which, under the present provisions, I cannot do because the trade union and work people involved will be immune". We deserve further clarification about the circumstances in which the employer would be able to exercise that option.

I think that I speak on behalf of all my right hon. and hon. Friends when I say that we are deeply disquieted by the provision, which will enable the employer to prevent his work people and their representatives from enjoying the immunity that they have enjoyed for many years.

Mr. Mikardo

I do not agree that the amendment clarifies anything. It makes some matters obscure. It is difficult to see what is the purport, in the context of the Amendment, of the word "represented" in the last line.

Let us take the case that my right hon. Friend the Member for Doncaster (Mr. Walker) has just quoted of the Engineering Employers' Federation. It bargains on behalf of all its member companies, and it is accepted by a company which joins the federation that either the national federation or the appropriate regional federation will do the bargaining for it with the unions in the engineering industry in certain defined fields. Each employer does his own thing with his own union representatives with regard to piecework prices and things of that sort, but there are broad considerations—working conditions, holidays and the basic wage—which are agreed by the national or regional federation with the trade unions.

I repeat that an employer joining the federation undertakes, first, to accept, that he is represented by the federation and, second, to accept whatever the federation agrees to on his behalf. In what sense, then, can any company which is a member of the federation not be represented by it so long as it remains in membership?

Let us say that there is a trade dispute in the engineering industry and the national federation is in negotiation wth the Confederation of Shipbuilding and Engineering Unions. Here we have the XYZ company which is and has for years been a member of the federation. How can it come about that the XYZ company is not represented? How does it get out of being a party to the dispute? Is there any way short of its doing what one or two companies always do in every dispute of this sort, which is to make its own deal with the trade unions and to leave the federation?

I assure the right hon. Gentleman that I am merely trying to be helpful. The amendment seems to provide an incentive to companies, members of employers' associations, involved in trade disputes, to make their deal and opt out. Although that is sometimes advantageous, and occasionally very advantageous, in the short term to the employees of those companies, I do not like it very much because I do not think it is beneficial to anyone in the long term.

I am a great believer in orderly bargaining. If there are people breaking ranks on either side of the negotiating table, there is disorderly bargaining and all sorts of bad blood and bad relations between the companies which have stayed in the federation and accepted the deal done for them by the federation—which they may not like very much in some cases—and those whom I suppose they would call the blacklegs.

I imagine that it is exactly the same as in a trade union, where trade unionists do not like blacklegs. I suppose that the term blackleg must be used by many companies to describe other companies which have opted out of a trade association and made their own deal with the unions in order to protect themselves against the effect of the dispute, and hence given themselves a competitive advantage over the companies which have stayed in the employers' association and gone through with the dispute until a settlement has been reached.

I do not think that many employers' organisations that include in their functions bargaining for their member companies will like what the Government propose. This is one more example of theoretical considerations being applied in the drafting of the Bill and of provissions being inserted that are contrary to common sense.

How is the picket on the gate to know whether a lorry is bringing goods from the associate company or from somewhere else? How is the poor copper to interpret the law? This is another example of theory being applied in a ham-handed way, in a way devoid of experience of the realities of industry. I hope that the Minister will tell me how an employer who is a member of an employers' association ceases to be represented by the association short of leaving it.

Mr. John Evans

The Secretary of State gave the game away when he replied to the debate on the previous amendment. He said that whenever we attempt to define secondary picketing and to drive a line between the 1975 Act and the old Act we get into drafting difficulties. I do not wish to go over that ground again. I merely say that clause 16 is pretty incomprehensible.

It is essential that the House recognises that everything within clause 16, including the amendment, refers to secondary action. The Government and their supporters have got themselves into the usual horrifying mess. They always show their ignorance of what goes on in industry. Little secondary picketing ever goes on in the United Kingdom. The last occasion on which secondary picketing was employed on a considerable scale was in the lorry drivers' strike. It would be a pointless exercise for lorry drivers to picket their own places of work, with their lorries standing idle, if other lorries were running throughout the country carrying the goods that they should have been carrying. Those are the circumstances that bring about secondary picketing.

We are at the heart of clause 17 (7). We are talking about circumstances that will lead to strikes being organised nationally. Such strikes will involve an employers' association. There are quite a few associations that bargain nationally on behalf of the entire industry. I have most knowledge of the Engineering Employers' Federation. We all recall the dispute that took place last year that involved the AUEW and the EEF. Virtually every firm was a party to the dispute at the outset. However, some firms started buying their way out and settling with the union.

12.45 pm

I wonder what amendment No. 10 has to do with subsection (7), which provides that employers shall be taken to be parties to any trade dispute in which they are represented by any employers' association.

That is one of the few concise parts of a clause which we all agree none of us can understand. Subsection (7) is clear and to the point. It is something that anyone involved in an industrial dispute as a result of central bargaining between the trade union movement and the EEF—or the chemical workers, or anyone else—would recognise. Those concerned would recognise that a group of workers from one plant would be allowed to picket at another because they were all involved in the dispute. I think that the Secretary of State will accept that that is the situation. In other words, this is an area in which picketing that is not at one's own place of employment can take place.

We have dealt with secondary picketing ad nauseam. We debated it in Committee and on Report. Under this clause, this is an area where secondary picketing would be allowed. If, for instance, men were working at one engineering establishment—one thinks of the EEF and AUEW dispute last year—they would be able to picket another establishment, because it was all one dispute.

Instead of saying that employers shall be taken to be parties to any trade dispute in which they are represented by any employers' association", the subsection will say that an employer who is a member of an employers' association which is a party to a trade dispute shall by virtue of his membership be regarded as a party to the dispute if he is represented in the dispute by his association, but not otherwise. What on earth is the difference? Is there something sinister here? Is the Secretary of State bringing in a provision and making it difficult to read between the lines? Is it the intention that employers who are members of an employers' association will not be allowed to leave the association? The brief explanation that we had at the outset of the debate does not explain why we are substituting one form of words for another form of words which seem to say the same thing. I should be grateful if any Conservative Member—they are all obviously listening avidly to every word that I am uttering—would explain the difference.

I suspect that one reason for the change is that the Government have discovered that they have created a situation in which secondary picketing will be legal, whereas their supporters, particularly the lunatic Right-wing fringe, think that they have solved the problem of secondary picketing and no such picketing will be allowed.

Mr. Mikardo

We ought to ask the Minister to explain this. The difficulty arises from the explanation that was given by the right hon. Gentleman. He said "We are allowing secondary picketing to be lawful only in respect of action against work that is being transferred from one establishment to the establishment of an associated company ". We are back to practicalities. Let us suppose that ABC company has a subsidiary company, XYZ. There is a dispute at ABC and work is being held up. It puts some of the work on a lorry and transfers it to XYZ company. That lorry is one of a dozen that turn up at XYZ company. How do the pickets know which of the lorries they are entitled to stop? How does the policeman who is watching the pickets stop a lorry know whether that stop is legal, because it is legal only if it contains those particular goods? How will the provision work? How on earth can it conceivably work in practice?

Mr. Evans

I am grateful to my hon. Friend for drawing that important point to the attention of the House. That is a valid point. We recognise that difficult situations can arise on picket lines. The Secretary of State knows that full well because we outlined some of those situations at length in Committee when trying to get some sense into the Bill. My hon.

Friend has drawn out an even more significant point.

Pickets, who will not be sweet tempered because of the dispute, because they are out of work and losing money, will be even more deeply concerned because their families will be penalised by the provisions of the Social Security (No. 2) Bill. That will lead to great bitterness. But how will pickets be able to identify work which has been transferred from the ABC company to the XYZ company in the same group? This is the dilemma. On many occasion in Committee we tried to help the Secretary of State by bringing some logic and semblance of common sense into the more tortuous parts of the Bill.

We have a right to know the purpose behind changing the words in subsection (7). Is it something sinister? Is it something of which we should be more aware? I fail to see why this new form of words should be used. I suspect that I was right in the first instance—that secondary picketing, about which the right hon. Gentleman's hon. Friends have taken him to task, will be permitted under subsection (7). Is this a sinister way of driving—[Interruption.] I hope that the hon. Gentleman will not make the mistake made by his hon. Friend earlier and tell me to sit down. I am sure that the Under-Secretary will expect me, on behalf of my constituents and my union, to pose these questions on the Floor of the House. I hope that there will not be any further attempts by Conservative Members to silence Opposition Members. We have enough difficulty because of the Government's enormous majority, but I am sure that some Conservative Members recognise that even Labour Party minorities have rights. I am sure that you, Mr. Deputy Speaker, would be the first to protect those rights.

Mr. Michael Morris (Northampton. South)

Walsall.

Mr. Evans

I do not know why the hon. Gentleman, from a sedentary position, should call out the name of a town in the Midlands.

Mr. Michael Morris

I was attempting to point out that minorities do not appear to have rights in Walsall.

Mr. Evans

Perhaps you, Mr. Deputy Speaker, can assist me by pointing out what Walsall has to do with subsection (7). I shall be only too happy to debate the situation in Walsall, but I cannot see what Walsall has to do with this matter

It is the duty of Parliament to pass legislation which men and women outside will understand. They will be puzzled why the words in subsection (7), which are clear, specific and understandable, should be changed to infer something sinister. At the end of the line individuals will be faced by tribunal decisions awarding costs and damages of £14,000, £15,000 or £16,000 against them. They will not be able to pay those costs and damages and will presumably find their property, furniture and so on sequestered because of the wording of the Bill. If men and women of limited means, limited education and limited knowledge are to be bound by the terms of this Bill, surely the least duty of Parliament is to make the legislation comprehensible to them in the first place.

Mr. Mayhew

Throughout the Standing Committee I always listened with pleasure and enjoyment to the contributions of the hon. Member for Newton (Mr. Evans). It was only impatience to reassure him in his fears that there was something deeply sinister in the amendment that led me to try to rise prematurely to explain.

It is important that we should bear in mind the context in which we are discussing the amendment. The context is the circulars in which under the Bill secondary action shall continue to be protected by immunity—that is to say, someone taking part in secondary action shall not be liable to an injunction obtained from the civil courts to restrain him.

Taking it in shorthand, clause 16 says that secondary action will continue to be protected by immunity so long as it is action in which there is a breach of a commercial contract and the purpose is to induce the breach of a commercial contract directly preventing or disrupting the supply during the dispute of goods or services between an employer who is a party to the dispute and the employer under the contract of employment to which the secondary action relates. The key words are "the employer who is a party to the dispute."

It is obviously important that there should be as little doubt as possible as to which employers are parties to the dispute. One of the questions with which we thought we had to deal is the question of an employer who is not directly in dispute with shop stewards in his own factory but who is a member of an employers' association which itself, as an association, is in dispute with a trade unon.

In clause 16 (7), before it was amended in another place, we said: and for the purposes of this section employers shall be taken to be parties to any trade dispute in which they are represented by an employers' association. What we intended there was that an employer should be regarded as a party to the dispute only if he is locked into the dispute. We intended, in the words which appear in the print, to say that he shall be regarded as being locked into the dispute if he is represented by an employers' association which is conducting the dispute on his behalf.

It was then represented to us that the words were open to a certain amount of misunderstanding. We therefore think that it is better on balance to substitute for those words I have just read out the words of the amendment, so that the clause would then read and for the purposes of this section an employer who is a member of an employers' association which is a party to a trade dispute shall by virtue of his membership be regarded as a party to the dispute if he is represented in the dispute by the association, but not otherwise. In other words, the purport is to make clear that he does not automatically become a party to the dispute simply by virtue of his membership.

The hon. Member for Bethnal Green and Bow (Mr. Mikardo) asked what the employer had to do to make sure that it is clear that he is not represented. This is a question of fact. The most simple way, and I should have thought the most usual way, in which this will come about is for the employer to negotiate a settlement of his own, or to say that this is what he is intending to do and that he dissociates himself from what otherwise would be being done on his behalf by the federation of which he is a member, or perhaps by saying that he is going through the processes of coming out of the federation. It is a question of fact. One cannot give a definitive list of circumstances. [Interruption.] One does not have to come out. One may ultimately be expelled, but one does not have to come out. All that one would need to do would be to say "I am negotiating a deal", or "I have negotiated a deal."

I am After all, it is in the interests of those who wish to picket on behalf of a trade union that they should know whether an employer has negotiated a deal and is no longer represented by the employers' association. They do not want to waste their energies on picketing somebody who is no longer part of the dispute, and who cannot yield anything by being successfully picketed.

Therefore, I assure the hon. Member for Newton that there is nothing sinister here. It is entirely in order to make as clear as possible what is intended by the expression in clause 16 (3), an employer who is a party to the dispute", that we think it desirable to amend the original words in clause 16 (7).

Mr. Michael English (Nottingham, West)

Does the hon. and learned Gentleman agree that it would not be a defence to a charge of treason to say that one was negotiating one's naturalisation into another country? If one was a citizen of Britain, one would still be liable in treason.

Mr. Mayhew

That is an interesting reflection, one which reminds me that I did not point out that this has absolutely nothing to do with policemen; they have nothing to do with questions of whether there is immunity.

For those reasons, I hope that I have dispelled—

Mr. Harold Walker

Reverting to the example of the national engineering dispute of last year, I must tell the hon. and learned Gentleman that in the engineering industry there is a large number of groups of workers whose pay is affected by national negotiations in which they and their representatives are often not directly involved. Equally, there are many members of the Engineering Employers' Federation who employ such groups of workers and yet who are not themselves directly involved in those negotiations.

In our debates tonight we have referred several times to the Federation of Engineering Design Companies, people who employ design engineers, draughtsmen and so on, employees whose pay is influenced by the mainstream pay settlement in the engineering industry but who do not often get themselves or their representatives involved in the negotiations. They are often conducted by the Confederation of Engineering and Shipbuilding Unions, or sometimes by the Amalgamated Union of Engineering Workers engineering section. Their pay increase follows as a consequential increase.

In those circumstances, one of those federated employers could well say "My chaps are not directly involved in this dispute, and I am not directly involved, even though we are secondarily involved indirectly. We shall pay whatever ultimate settlement reflects itself in the pay of our chaps, but until then my chaps will not get themselves embroiled in this dispute, and for the purposes of this legislation I am saying, under this provision, 'I am not a party to the dispute, even though I am a member of the EEF, even though eventually my chaps by some secondary or tertiary negotiations will be beneficiaries.'" In that situation he is saying "Therefore, if my chaps get themselves involved in any action that will be construed as industrial action bringing pressure on me, or whatever, they are exposed to action in the courts; I can take action against them, because they cannot claim the immunity that the previous legislation might otherwise confer."

Mr. Mayhew

I understand the right hon. Gentleman's point, but I do not think that it has anything to do with the amendment. The right hon. Gentleman is saying that there may be an employer whose custom it is always to reflect in his wage levels the result of negotiations that have been conducted by an employers' association. It is always a question of fact in each case for a tribunal as to whether an employer is a party to a dispute. All the circumstances will be looked at.

What is said in the clause is simply that an employer shall not be regarded as being a party to a dispute merely by being a member of an association—in other words, automatically, by reason of the fact that he is a member of an employers' association—unless that association represents him in the dispute. There is an infinite variety of circumstances that may apply across the breadth of British industry, and an industrial tribunal, with its practical experience and its tripartite basis, will look at all the circumstances and come to a realistic assessment. At least, that is what it should do. However, that does not have any bearing on this amendment.

Mr. Greville Janner

Even if the hon. and learned Gentleman was right when he said that a tribunal would consider questions of fact, my hon. Friend the Member for Bethnal Green and Bow (Mr. Mikardo) was also right to say that the reality is that the police have to go to disputes to sort out who is allowed to picket, who is a primary picket and which lorries can be stopped. That takes place long before the dispute reaches a tribunal. That is where the trouble lies. The police are very much involved, and they cannot understand this measure any more than most hon. Members.

Mr. Mayhew

The amendment sets out who shall and who shall not be regarded as a party to the dispute as an employer. Indeed, it does not go as far as that. It says that employers who are members of employers' associations shall be regarded as parties to a dispute.

Unless there were a subsection that explained that not everybody who was a member of an employers' association would thereby be regarded as a party to the dispute, there would be confusion. Some people may, for example, remain members of the Engineering Employers' Federation despite the fact that they have indicated that they do not agree with the federation's view about prosecuting the dispute. They may be negotiating their own way out. Such a subsection would seem to be sensible and desirable.

The provision has nothing to do with the police. We are discussing immunity from civil actions. In those circumstances, unions should be aware that if they continue to take secondary action against an employer who is not a party to the dispute they will not be protected by the immunity that the clause gives.

Mr. John Evans

rose—

Mr. Mayhew

The hon. Gentleman was very assiduous in Committee. I shall give way, for the last time, to him.

Mr. Evans

The hon. and learned Gentleman pointed out that if an employer opted out by settling with the trade unions but was subjected to picketing, those pickets would fall within the provisions of the Bill. The hon. and learned Gentleman must be aware that if a firm settled with the trade unions on their terms, and outside the federation, it would be the height of lunacy to suggest that further picketing would take place on that employer's premises. That is the last thing that would happen. The workers would proclaim to other employers that Joe Bloggs had settled on the terms and conditions asked for.

Mr. Mayhew

At last the longed-for accord between the hon. Gentleman and myself has been reached. As I pointed out in response to the hon. Member for Bethnal Green and Bow, people should recognise that it is in the interests of those who wish to picket to clarify the parties to a dispute. People do not wish to picket somebody who has already settled, and who can yield nothing.

There is nothing sinister about the measure. It is all for the best in what I cannot claim is the best of all possible worlds, although it is at least a realistic one. In those circumstances, I commend the amendment to the House.

Question put. That this House doth agree with the Lords in the said amendment:—

The House proceeded to a Division—

Mr. Le Marchant and Mr. Berry were appointed Tellers for the Ayes but no Member being willing to act as Teller for the Noes, Mr. DEPUTY SPEAKER declared that the Ayes had it.

Question accordingly agreed to.