§ House again in Committee (according to Order):
§ [The EARL OF DONOUGHMORE in the Chair.]
§ Clause 3:
§ Prevention of intimidation, &.
§ 3.—(1) It is hereby declared that it is unlawful for one or more persons (whether acting on their own behalf or on behalf of a trade union or of an individual employer or firm, and notwithstanding that they may be acting in contemplation or furtherance of a trade dispute) to attend at or near a house or place where a person resides or works or happens to be, for the purpose of obtaining or communicating information or of persuading or inducing any person to work or to abstain from working, if they so attend in such numbers or otherwise in such manner as to be calculated to intimidate any person in that house or place, or to obstruct the approach thereto or egress therefrom, or to lead to a breach of the peace; and attending at or near any house or place in such numbers or in such manner as is by this subsection declared to be unlawful shall be deemed to be a watching or besetting of that house or place within the meaning of Section seven of the Conspiracy and Protection of Property Act, 1875.
§ (2) In this section the expression "to intimidate" means to cause in the mind of a person a reasonable apprehension of 448 injury to him or to any member of his family or of violence or damage to any person or property, and the expression "injury" includes injury other than physical or material injury.
§ (4) Notwithstanding anything in any Act it shall not be lawful for one or more persons, for the purpose of inducing any person to work or to abstain from working, to watch or beset a house or place where a person resides or the approach to such a house or place, and any person who acts in contravention of this subsection shall be liable on summary conviction to a fine not exceeding twenty pounds or to imprisonment for a term not exceeding three months.
§ LORD GORELL moved to leave out subsections (1), (2) and (3). The noble Lord said: I cannot but think that the course of the seven hours discussion that we had on this Bill in Committee yesterday must have lent very considerable justification to the question addressed to your Lordships' House by my noble friend Lord Russell on the Motion to go into Committee. He asked the Government whether it was a fact, as had been stated in a usually well-informed quarter, that the Government had made up their mind not to accept any Amendment on the Order Paper. Both the noble Marquess and the noble and learned Viscount, the Lord Chancellor, expressed an almost pained surprise at such a question, and stated that of course every Amendment would be properly considered. Those of your Lordships who were present during the long debates yesterday could hardly, I think, have come to any other conclusion than that that protest has not been very fully made out with one exception, where a patent absurdity was pointed out and where we received the promise of the noble and learned Viscount that that should be amended on Report. With that exception every Amendment moved, whether from these Benches or from those on my right or by the noble Marquess (Lord Londonderry), has been absolutely rejected.
§ I feel that we can hardly criticise the noble and learned Viscount too harshly for his brief replies since the whole burden of the defence has been put upon him. In the course of seven hours discussion, apart from the replies by the noble and learned Viscount, I think only 449 four other noble Lords opposite intervened at all. The noble Marquess (Lord Salisbury) twice made short Second Reading speeches without any particular reference to the clause or subsection under discussion. The noble Marquess, Lord Londonderry, moved an Amendment which met with a similar fate, the noble Lord, Lord Danesfort, with what I cannot help feeling was almost an excess of courtesy, rose to inform your Lordships that he would have no hesitation in voting for the Government; and the noble and learned Earl, Lord Halsbury, while apparently supporting the Government in fact spoke against certain clauses of the Bill. I venture to hope that that form of summary rejection of all Amendments will not be proceeded with again this afternoon. For really I cannot recall a more complete abrogation of your Lordships' functions as a revising chamber. At any rate we have a duty to perform which to the best of our limited ability we shall try to carry out. The Amendment I have now to move—
§ THE LORD PRIVY SEAL (THE MARQUESS OF SALISBURY)
Perhaps as the noble Lord is now going to speak to the question, I might be allowed to answer the observations which he has made, which appeared to me to have very little relevance to the Amendment. The noble Lord has specially accused me of having made two Second Reading speeches in the course of the Committee stage. I think I did not speak more than twice. I generally try to practise in this House the habit of not speaking unless I have something to say. On the first occasion yesterday I tried very respectfully to recall the House to the actual Amendment which was under discussion, and I did not say one word except what had direct reference to the Amendment and nothing whatever to do with a Second Reading discussion. On the second occasion, in answer to the observations of the noble Earl, Lord Russell, I replied to his observation on the first clause of the Bill. It is perfectly true that Clause 1 of the Bill involves a great deal of the essence of the Bill, and it was so treated by the noble Earl, and personally in my reply I did not go a word beyond what he said in the attack which he made on the Government in reference to Clause 1 of the Bill.
450 That is as far as I am concerned. As regards the treatment of the Amendments, I am perfectly certain that noble Lords on that Bench never expected, and would never have expected if they had been in our place, that a large number of those Amendments would be accepted. They were not consistent and were not intended to be consistent with the main purpose of the Bill. They were advanced for the purpose of showing, as noble Lords had a perfect right to do, that the Bill was a bad Bill, but they were not designed for the purpose of being embodied in the Bill to improve the Bill. As regards other Amendments, my noble and learned friend said that wherever an Amendment could be shown to be a good Amendment he would accept it. I am personally very desirous to treat legitimate criticism in this House with the most profound respect and with the intention, when the Government can, of accepting Amendments, but that does not afford any good reason for putting Amendments into the Bill which we think will not improve the Bill, which are not consistent with its general tenor and are not really moved with the design of having them inserted. Those appear to me to be the general reasons for the conduct of the Government and I am very sorry that the noble Lord should feel aggrieved. He is the last man your Lordships' House whom I should desire to treat with anything but respect and I hope we may now proceed to discuss the Bill in a business-like way.
I am always ready to give way to the noble Marquess whenever he wishes to rise, but I cannot help thinking it a little bit unusual that he should not merely interrupt to answer a question but should make a long speech in the midst of mine. I of course accept what he says. I listened to his two interventions with great care, and I have since also read them, and those were the conclusions to which I came. As to the rest, I can only say that while some of the Amendments moved from this side were, I admit, far-reaching, and we could hardly hope that they would be accepted, there were others which were genuine attempts to improve the language of the Bill, and they met with an equally cursory fate.
The Amendment I have now to move is a genuine attempt to improve the Bill. 451 It is not a destructive Amendment, because this clause can be removed from the Bill without affecting the main principle on which the Bill is based. I wish, first of all, to meet one argument, which has been advanced against those who have spoken in the sense in which I shall have to speak. We are told that if we oppose this clause we are in favour of intimidation, and that I consider a gross travesty of our attitude. At any rate, speaking for myself, there is nothing I more dislike than any form of intimidation by one person, or a number of persons, against another. I have in my humble way at various times raised my voice to protest both against private and public bullying of any kind, and I hope that the noble and learned Viscount, who even when he is most obdurate is always courteous, will not accuse me of desiring to make it easier in any way that any man or woman should be intimidated.
My purpose is different. I cannot help thinking that the clause as at present drawn is a bad one. We have not had, so far, any real discussion upon the subject of intimidation. In the course of the Second Reading speeches only one, I think, was directed to this subject—namely, the speech of the noble Earl, Lord Halsbury, and I cannot help thinking that he at any rate must support my Amendment. I notice that he has on the Order Paper a long Amendment designed to state in clearer language the purposes of this clause. It is obvious that his Amendment cannot be inserted in the Bulunles the present clause comes out. As my Amendment is to omit the first three sections of it, I hope I shall have the support of the noble Earl in moving this Amendment. The noble Earl made a speech in which he expressed his dissatisfaction with the language of the present Clause 3 and stated what I think everyone would agree with, that one of the most important things of all is that every person should know exactly what is and what is not allowed. With that part of the noble Earl's speech I find myself in hearty agreement.
The noble Earl then went on to give an account to your Lordships of various instances of intimidation which had come under his own personal knowledge. He was replying mostly, I think, to some words that fell from the noble and learned Viscount, Lord Haldane, that no great industrial disturbance had been 452 conducted with greater order than the disturbance which took place in this country last May. I should think that that observation in general was absolutely beyond challenge. I had myself some opportunities of seeing how the general public and those on strike maintained their self-restraint. It is, I think, undenied that the orderliness and restraint that marked those disturbances were the wonder and astonishment of every other country in the world. The noble Earl's instances, therefore, were drawn entirely from the strike of the miners and not from the sympathetic strike which coincided with it, and I think it is worthy of note that it is not denied that the strike of the miners was legal and would, if it occurred again, be legal even under the provisions of this Bill. Therefore, to some extent, instances drawn from the strike of the miners are not strictly relevant to the purpose with which this Bill is stated to deal.
The noble Earl, Lord Halsbury, gave some harrowing instances of gross intimidation. He gave an account of 8,000 men stoning, as he said, for all they were worth. He even with some exactitude gave your Lordships the weight of the stones that were found to have been thrown—4½ cwt.—and I gathered from him that his personal experiences had been gained by prosecutions arising out of those incidents. If that is so it is not possible to come to the conclusion that the noble Earl is ignorant of the present law, and yet I cannot myself see the relevance of those instances of intimidation unless it were that such instances were even allowable under the present law, and that is wholly untrue. If the noble Earl was engaged in prosecutions, it is to be assumed that some at any rate of those prosecutions were successful. The persons charged must have been prosecuted under some law and it is obvious they were prosecuted under the law of 1875 and of 1906.
§ THE EARL OF HALSBURY
They were mostly prosecuted under the Common Law for riot and unlawful assembly.
In that case my point is even more strong than I have stated it. Not only are these two Statutes on the Statute Book to prevent such acts, but the Common Law is also there. From some speeches made in the country 453 one would conclude that there was no law in existence at the present time against intimidation, but every noble and learned Lord must be well acquainted with the facts. Everybody, however, is not learned in the law and I have taken the trouble to look up again the precise provisions of Section 7 of the Act of 1875. They are absolutely and perfectly defined. There are five definite subsections under which every person is forbidden to use violence or to intimidate another person, his wife or children, or to injure his property, to follow him about, hide his tools, watch or beset his house or the approach to his house, or follow such person with two or more persons in a disorderly manner in or through any street or road. I cannot imagine any more precise language and it is obvious that every instance of intimidation which has been given to your Lordships would fall under those provisions.
That section, as your legal Lordships will know, is modified by Section 2 of the Act of 1906, which makes it lawful for one or more in a trade dispute to attend at or near a house or place where a person resides or works merely for the purpose of peacefully obtaining or communicating information, or peacefully persuading any person to work or abstain from working. This particular clause is recommended to your Lordships as coming under the second of the propositions enunciated by the Attorney-General, which were quoted to your Lordships by the noble and learned Viscount on the Woolsack in his speech introducing the Second Reading of the Bill, in these words:Intimidation is illegal and no man shall be compelled by threats to abstain from work against his will.That is a statement absolutely of the present law and therefore we are driven to the conclusion that the insertion of this Clause 3 is meant to do something other than is done by Section 7 of the Act of 1875 or by Section 2 of the Act of 1906. We are faced, first of all, with one great inconsistency. We are told that judicial persons—magistrates and others—find a difficulty in interpreting the present law. I think it was the noble Earl, Lord Halsbury, who said they find difficulty in correctly interpreting what peaceful persuasion is. The words do not seem to me very difficult of interpretation. 454 At any rate such instances as have been given to us are clearly, if English has any meaning at all, beyond peaceful persuasion of any kind.
We are told, then, that magistrates do have a difficulty in interpreting the present law, and yet we have before us this Bill, which, if it becomes law, they will be asked to interpret. I say without any hesitation at all that as far as language is concerned the language of 1875 and the language of 1906 is clear as crystal compared with the language of Clause 3 of the present Bill. I cannot imagine that under the working of this clause any person will know what he may or may not do, and since this Bill has been drafted, as one may suppose, by experts, it is difficult to resist the conclusion that that is the purpose of the clause. At any rate, I am perfectly certain that that will be the result if this clause is passed in its present form. That can only lead to the further result that it will, in fact, prevent any combination of men whatever trying to strengthen their case against the employer or taking any action whatever in furtherance of the aim which they have come out on strike to obtain. We again meet the word "calculated"—"calculated to intimidate"—and the whole clause is full of extreme vagueness and indefiniteness.
One or two Amendments yesterday were rejected by the noble and learned Viscount, the Lord Chancellor, because, he pointed out, they would entail what he described as "diving into the mind" of the declarer of a strike or one of the leaders or of others. Yet here in this clause, put before your Lordships by the Government, there is exactly that particular difficulty. Under the second subsection there is most distinctly the necessity for "diving into the mind" and this time it is the strike-breaker who is allowed to say what is in his mind, whereas, before, objection has been taken that the strike-leader may not for his part say what was in his mind and that it would be impossible to obtain a conviction or to prove anything. Therefore I think one cannot resist the conclusion that this clause is extraordinarily one-sided. I cannot imagine that it has been put into this Bill for no object. It must have been put in, therefore, 455 in order, in some way which is not at all clear, to hamper the present rights of workmen to communicate information or to carry out what is at present allowed, peaceful picketing.
I shall not, at this stage, deal with definite sentences or words, because there are a, number of Amendments to follow which will do that. I merely call attention to the facts that at present as the law stands, if it means anything at all, intimidation is illegal, that these acts of violence can be stopped, and that prosecutions were instituted wherever it was thought advisable to institute them last year. We do not desire to alter that at all. We do not desire to make intimidation easier or legal. I rise to protest against a clause under which it will be made impossible for any workman to know where he stands, or what he may do, or what will be construed as "injury other than physical or material"—vague phrases of that kind, if passed into law, will make confusion worse confounded and produce a state of chaos which it will be extraordinarily hard for any magistrate properly to interpret.
Page 4, line 3, leave out from beginning of line 3 to end of line 31.—(Lord Gorell.)
§ THE LORD CHANCELLOR (VISCOUNT CAVE)
The noble Lord began his speech by making a complaint that up to the present time only one Amendment moved from that Bencn has found sufficient favour with the House to induce them to accept it, for the purposes of this Bill. I will not revert to what the noble Lord said about my noble friend behind me, for that has been answered, but I think the explanation of the fact to which the noble Lord alludes is perfectly simple. There has been till now no Amendment which on its merits we could advise the House to accept. I am really hungry, if I may say so, for a good Amendment from whatever quarter of the House it may be moved. I should like to see some Amendment passed in Committee in order that we may have a Report stage on this Bill, because I think it is quite desirable that noble Lords who have moved Amendments and heard the criticisms upon them should reconsider their terms and see if they cannot do better next time.
I have already undertaken to propose one change in the Bill at whatever may 456 be its next stage, but we cannot accept what we deem to be bad Amendments, Amendments fatal to the principle or good working of the Bill, simply in order that your Lordships may say that you have had something accepted, or in order that the Bill may get into the Report stage. I am still hopeful—indeed I have great hopes—of being able to induce your Lordships to accept some Amendment before these proceedings in Committee conclude, but I am sure the noble Lord who moved this Amendment cannot expect this to be accepted. He says it is intended to improve the wording of the Bill. It is calculated to eviscerate altogether this third clause of the Bill. He is moving to omit the greater part of it.
Let me say a few words—they will only be very few at this stage—about the merits of the subsections which the noble Lord would like to omit. In substance, they do two things. Firstly, they deal with what I may call intimidation by crowds. The provision which has been read which permits peaceful persuasion has been, as I ventured to say, partly misunderstood and partly abused, because under the guise of picketing great crowds of people, strikers and their wives and others, have assembled, sometimes outside the works where men desire to work, sometimes in the road where it is known they will be met on their way to work, sometimes outside their homes. Great crowds come together and use insulting and sometimes terrifying language to a man who is entitled to go to work if he desires to do so, or to his wife or his family at his home. That is a monstrous thing. It is a gross abuse of the law, and I do not believe anybody, even in 1906—I am certain nobody, even in 1906—intended that such a result should ensue.
It is not only gross intimidation of the men, but it makes it difficult for the police under the law as it stands to deal with the position. If they find a crowd they are told at once that the men, or some of the men, are pickets who are there to persuade men not to work. It is very difficult, indeed impossible, for the police to distinguish between the few men there for the purpose of persuasion and the great crowd who go there to back them up and to exercise unfair pressure 457 upon the men desiring to work. That is one thing we want to stop, and although the noble Lord, Lord Gorell, says he does not want to make it easier to intimidate, the omission of that subsection would make it easier to intimidate men desirous of working. If his Amendment is not intended to have that effect, it is at least calculated to have that effect.
The second point with which we are dealing, as noble Lords who have read the Bill know perfectly well, is what I may perhaps call moral intimidation. The noble Lord has read from the Act of 1875 the well known provisions that forbid intimidation, but these have been construed somewhat narrowly. They have been taken to refer only to either physical violence or the threat of physical violence. My noble friend opposite, Lord Haldane, is fond of quoting from Lord Bramwell even when his speeches are not directly relevant, but he will no doubt remember that some time before the Act of 1875 Lord Bramwell defined intimidation as including anything unpleasant or annoying to the mind operated upon. Since the Act of 1875 that reading has been modified, and it has been held, in cases which I do not quote to the House but the names of which I have here, that to constitute intimidation under the Act of 1875 there must be something constituting a threat of personal violence.
But that is not enough. People may be as much intimidated—and, indeed, are often more intimidated—by a threat of injury other than personal injury as by a threat of personal injury. There have been many cases where threats have been used to drive a man out of his work and, indeed, out of all work, to induce tradesmen and others not to deal with him, to see that his children are not received at a school or are driven from a school. There are a dozen other things of that kind that might be mentioned, and the threat of such injury is just as effective, just as unfair and just as cowardly as the threat of personal injury. That is the second point with which we want to deal in this clause and, if the noble Lord succeeds in his well-meant effort to leave out these three subsections, he will succeed, whatever he intends, in making that kind of intimidation possible. Your Lordships will see that on the view that we take of the Bill we cannot possibly accept this Amendment.
§ THE EARL OF HALSBURY
Let me reply to the noble Lord, Lord Gorell, with regard to two remarks that he made. He seemed to suggest that I had said that the present law was difficult for magistrates to construe. That was not the point that I was seeking to make on the Second Reading. The point that I was endeavouring to make was that it was very difficult for the men to know what the law was. The second point that I want to mention before I come to this particular subsection is that it is true that I gave a considerable number of instances of matters that came under my personal knowledge during the riots of 1925 and 1926, but I did not give them as instances to show that there was violence. It is true that I made a remark that the noble Viscount had on one or two occasions congratulated the House on the small amount of violence, and perhaps it was unworthy of the Second Reading debate to answer the noble and learned Viscount. But the point of my instances was to show the particular existing state of affairs, which is not met by the present law and which I wish to see met by the present law.
With those remarks in answer to the noble Lord, Lord Gorell, I come to the Amendment that he has moved. It is true that I have an Amendment later on the Paper to delete the whole of Clause 3 and to substitute something else, and in so far as, before I can substitute what I desire to substitute, I wish to get rid of this clause altogether, I am, of course, in agreement with him. I do not like this clause, and I have listened in some confusion of mind to the answer of the noble and learned Viscount, the Lord Chancellor. His first observation concerned subsection (1), and he pointed out that if that subsection was removed from the Bill it would be practically removing something that was to stop intimidation. I am bound to confess that when I first saw Clause 3 as a whole I was filled with amazement, and having heard the noble and learned Viscount say that subsection (1) does something to prevent intimidation, I am still more filled with amazement.
If your Lordships will look at that subsection, you mill see that it is really divided into two parts: the first part ends with the words "or to lead to a breach of the peace," and the second part 459 follows. The first part seems to be a slovenly description—it cannot be dignified as a definition—of an ordinary Common Law unlawful assembly in words which are most inept for the purpose, and it is left, as a matter of drafting, without any provision for punishment. The punishment is brought in by saying that it is to be deemed to be the offence of "watching or besetting" under another Act of Parliament. With the greatest respect to the draftsman of this Bill, the circumstances that are envisaged in the first part of this subsection cannot be "deemed to be a watching or besetting": they are in fact a watching and besetting. I have personally heard Judge after Judge direct juries that, if the circumstances envisaged in the first part of this subsection exist, they are undoubtedly watching and besetting. How on earth does this subsection strengthen or alter the law one way or another, except to add to the confusion in the minds of the men who have to understand it?
This Bill is put forward as a most important measure, and I entirely agree as to its importance. But surely, in view of its importance, every effort ought to be made, no matter how long it may take, to see that the law is enunciated properly and clearly and that something more than a makeshift is put forward. Let me suggest to your Lordships that the following wording is not quite so bad as the wording of subsection (1):—An assembly of three or more persons for a purpose forbidden by law, such as that of committing a crime of open force or with intent to carry out a common purpose, lawful or unlawful, in such a manner as to endanger public peace or"—your Lordships should notice this particularly—to give firm and courageous persons in the neighbourhood of such assembly grounds to apprehend a breach of the peace in consequence.
§ THE EARL OF HALSBURY
I am reading from the definition in Hawkins' "Pleas of the Crown" of an unlawful assembly. It is a definition that has stood for over 200 years and is well known in all the Law Courts. I should have thought that it was much more apt than 460 the new and entirely different language of a somewhat slovenly character that is put before us in 1927. I pass to the next point. It is declared that—attending at or near any house or place in such numbers or in such manner as is by this subsection declared to be unlawful shall be deemed to be a watching or besetting of that house or place within the meaning of Section 7 of the Conspiracy and Protection of Property Act, 1875.I do not think anybody would deny that the words "watching" and "besetting" are well known in the Courts. Everybody knows what they mean and that if an unlawful assembly congregates round a man's house that is undoubtedly watching and besetting. How does this subsection alter the law one way or another? How does it help the difficulties that there are in the law at present, as I shall show? I am perfectly certain of one thing, that the general principle that violence and intimidation ought to be put down, is not a Party question, but is a question on which everybody in the House must agree. It is purely a question of what is the best way to do it.
Now we come to subsection (2), which says:—In this section the expression 'to intimidate'"—I should have thought that the word "intimidate" was a very ordinary, well-known word—means to cause in the mind of a person a reasonable apprehension of injury to him or to any member of his family or of violence or damage to any person or property, and the expression 'injury' includes injury other than physical or material injury.What does the last phrase mean? In the original Bill that was supposed to mean hatred, ridicule and contempt. That obviously had to be dropped. You cannot legislate against a boycott. It has been tried in Ireland and it has failed. This attempts to make it an offence to cause a person a reasonable apprehension that you are going to do something which by law you are entitled to do. That is legislating against boycott. I know perfectly well that the weapon of boycott can be used very cruelly indeed; I have seen it used very cruelly. You are not going to stop it by saying: "You may do it, but you may not say so first." That is what this Bill attempts to do. In certain circumstances 461 that sort of weapon is a perfectly legitimate one. You must realise that these people are sincere and take a strong and sincere line. They think that a man who works during a strike is a traitor to his cause and to his fellow workers. Are they not entitled (as many of us did during the War with persons who were openly pro-German) to say: "I am not going to speak to you again or have anything to do with you again"? Is it wrong for a perfectly sincere man who thinks a person working through the strike is betraying his class, to say to his friend: "We have been friends a long time, but if you are going on working I will have nothing more to do with you"? Then there are the words "other than physical or material injury." What other injury? Moral injury, as the noble and learned Viscount said.
§ THE EARL OF HALSBURY
I thought the noble and learned Viscount said moral injury, but if he did not I do not know what injury there is left that you could define, or how any Judge, who has got to construe this as an Act of Parliament, could possibly leave it to the jury to say what other injury there was than physical or material. For the reasons I have given I shall certainly vote for this Amendment and I shall hope later on to substitute something else.
§ LORD PARMOOR
We have had a most valued speech from the noble Earl, who has approached this question from the right standpoint. It is all important that the workman who may be affected by this legislation should have some clear indication of what is being made criminal in the legislation we are now passing. I would like to add that in any Amendment I have put down I have endeavoured by drafting to improve the Bill. Of course I do not agree with all its principles. That is another matter, but it is a misunderstanding to think that our Amendments have not been put down largely with that object. In this particular Amendment I have in my mind the case of workmen standing in the dock. That is when you come to the test. One wants to know what the position is and why they have got there. My experience of the Criminal Law has been a long 462 one, but only in the Court of Quarter Sessions. There is nothing sadder than to see some man, whom I have not thought had any criminal intent whatever, being brought into the dock and charged with a crime, as he might be under some such difficult words as we have here.
Looking at subsection (1) of this clause, I ask if there can be greater confusion introduced into the Common Law principle of riot and violence. It is of enormous importance in these criminal matters that, unless you have some very good reason, you should not alter long-established principles of construction. I cannot see any advantage in these words except obscurity. I do not believe that the Lord Chancellor or any one else desires to alter our Common Law on this particular question, which has been found to operate admirably over centuries of time. What is the object of this? Why should you introduce a new obscurity when at the present time you have an effective law which is not obscure at all and is known to and understood by everyone.
As regards watching and besetting, there is another new element introduced and again there is what I call obscurity. It speaks of attending at or near a house or place in such numbers as is in this subsection declared to be unlawful. There is no number that I can see. It is "one or more persons" shall be deemed to be "watching or besetting of that house" within the meaning of Section 7 of the Act of 1875. What are you adding there? "Watching or besetting" is well established under the Act of 1875, and what are you adding? Are you really adding something which may intimidate law-abiding people, who are entitled, as anyone else, to exercise the rights which they possess? I agree that we want to do everything we can to stop violence and threatened violence, but you do not bring about that result by an obscurity which, so far from elucidating the present law, throws doubt upon it, and which in the second portion refers to matters already defined in the Act of 1875.
May I say one word about the Act of 1875? I do not, of course, want to anticipate the noble Earl's own Amendment, but I think we should have it in mind. The first five sections of his 463 Amendment are the Act of 1875—the most valuable part of the Act of 1875—and so it is not really as though we were attempting to destroy the Act and put nothing in its place. I for one most heartily support the noble Earl, and I want to put one other consideration. The Act of 1875 was passed at a time which was a generation of great lawyers—Lord Cairns, Sir John Holker, and Sir Hardinge Giffard, afterwards Lord Halsbury—who had a very, virile intellect in these matters of Criminal Law. It was under their guidance that these clauses were passed in the Act of 1875. That is not a recommendation to be overlooked, and if one looks back on one's experience and tries to understand these matters, it is not to be overlooked that you find in the great Common Law and legal minds of the past a clearness of definition which is an essential element in any criminal system which is to act fairly, especially with regard to the less-educated classes, and to bring about what I should call an obscurity, an interference with the wide logical apprehension of these principles, is to my mind a great mistake, particularly in a measure of this kind.
Then, going to subsection (2), if I may say a word, although the noble Earl has said it admirably already, what do you mean by including "injury other than physical or material"? I am aware—I have sent for the book in order to refresh my memory—of the various definitions of intimidation which have found their place in our law system and have now been accepted. They are not narrow definitions at all, but definitions intended to include, and which do include, any threat of violence, which may be, of course, almost as bad as violence itself. As regards subsection (3), there is one matter to which I should like to refer beyond what the noble Earl has said. It surely is very bad draftsmanship, if you want to be precise in these criminal matters, to introduce in a Bill of this kind what is a new definition in an old Bill. I do not imagine that in this Bill you are seeking to alter the law as it stands. It may be that as regards this Bill, and as regards trade unionism, you may want some definition, but in a Bill of this kind to alter the whole law as it has been understood and administered is surely an extreme form of introducing obscurity where obscurity is unnecessary. 464 I am anxious not to trespass upon your Lordships' time more than is necessary, but this is a case in which we ought to avoid obscurity. There is no difference between us on matters of principle—I mean stopping violence and threatened violence as we have ordinarily understood it—but I certainly urge that this Amendment may be accepted as a road to the adoption of the proposals made by the noble Earl opposite.
§ THE MARQUESS OF READING
May I make an appeal to my noble and learned friend, the Lord Chancellor, in regard to this clause? There is no difference of opinion in this House in regard to the necessity for making the law as to intimidation clear. We are all agreed, and I certainly can assure my noble and learned friend, on behalf of those with whom I am politically associated in this House, that we will not only give most careful consideration to any words proposed to us, but will assist, so far as we can, in carrying in this Bill any language which will make for an effective, clear law regarding intimidation. We are a revising Chamber. There has been much discussion recently with regard to the position of your Lordships' House. I venture to ask your Lordships to give your attention to the matter upon which we are now engaged. I doubt, certainly within the short time in which I have been able, recently, to take part in the debates in this House, whether any occasion has ever arisen on which there was so much need for the wisdom, learning and knowledge of your Lordships' House as in this respect.
I do not desire for one moment to take up your time in discussing the necessity for clear language, because that is too apparent. Although I am quite sure that in the end I shall not find myself in complete agreement with my noble and learned friend Lord Halsbury, I do agree with much of the criticism which he directed towards the clause as it at present stands. Indeed, if he will permit me to say it, I thought his criticism was destructive of the clause in its present form. The great difficulty which we find is that while we are anxious to make the law clear, and to strengthen it where it needs strengthening, we cannot assent to vague and obscure language such as "'injury' includes injury other than physical or material injury." I have 465 listened with great attention to what fell from my noble and learned friend the Lord Chancellor, and I agree that he indicated, certainly in one respect, an instance in which the law might be strengthened, but my objection to these words is that they not only cover the small case—only small in a drafting sense, they are important undoubtedly as regards the wellbeing of those who wish to engage in work during a strike—but they cover every conceivable form of even imaginary injury.
It has been said, I think by Lord Halsbury, that you cannot legislate against social ostracism. Can you legislate against sending a man to Coventry in a club? Can you legislate against refusing to sit at a table with him? Can you legislate against that form of boycott? It is impossible to do it. I find that language is specifically used in one of the Amendments proposed, I think by the noble Lord, Lord Arnold; the words are actually there, but who is going to attempt to defend them?
§ THE MARQUESS OF READING
It is not in the Bill, but the definition of the Bill covers not only the points which the Lord Chancellor wished to make, but even those points which are not in the Bill and which the Lord Chancellor himself would not put into the Bill. If this wide, definition of injury is not meant to cover social ostracism, boycott, and things of that character, then in all earnestness I would ask the Lord Chancellor, who himself is, after all, so great and learned an exponent of the law, and has so much to do with the interpretation of the law, to give us language that will cover the cases which he has in mind, while not covering cases which the Government have rejected, and which, as my noble and learned friend has indicated, in relation to social ostracism and boycott the Government would not include. It certainly does not go beyond the wit of man and of expert draftsmen to find words to cover what we all have in mind.
I do not want to vote against, this clause. I say so quite frankly. I do not want to vote for an Amendment which gets rid of the whole clause, but unless there is some indication given to us that there will be a change in the phraseology I shall feel, and I think those who 466 are associated with me will agree, that we must vote against the clause, not because we object to dealing with intimidation or to the desire to strengthen the law against intimidation, but because we cannot be parties to a law which makes a criminal offence and does not state in clear language what the offence is, but throws the net so wide that it covers numbers of instances which are not in the minds of these who are responsible for the Bill, and certainly not in the mind of the Lord Chancellor. We all remember that, as the Bill was originally drafted, it used language such as "exposing a man to ridicule, contempt and hatred." That did not stand the test of criticism, and was rightly abandoned by the Government when they came to consider it. Here again we have another opportunity, and I appeal to the Lord Chancellor to give us some indication that we shall have words brought up, either on Report or Third Reading, whichever may be more convenient, that we can consider and deal with, for the specific purpose of rendering the law of intimidation clear strengthening it where it is necessary, but not throwing it so wide as really to cast the gravest, doubt on any action that any man might take.
§ THE LORD CHANCELLOR
My noble and learned friend Lord Halsbary has done that which he is quite entitled to do, but which involves a grave responsibility. He has asked the House to join in striking out an important part of this clause without any security that other and better words, or equally good words, will be inserted in their place. I think it must have given him pause to find that in his view that this subsection should be omitted he had the cordial support of the Labour Party, and yet the Labour Party have not undertaken to accept his new clause as a substitute for this. If these words are left out we shall be left for the moment with no substitute for that which the Government propose. The drafting of the clause has been somewhat severely criticised by the noble Earl and by others. I do not think it is open to their animadversions. But whether the noble Earl is right or wrong, at least it is intended to give protection to workmen who are willing to work, and who are subject to grave intimidation, from that kind of injury; and that some 467 legislation of the kind is believe, the opinion of all fair-minded men.
We deal with two things, first as to crowds. My noble friend seems to think that the present law is sufficient. Well, it has proved insufficient. The police have been gravely hampered in their desire to prevent these crowds and protect the honest and willing workers, and they have found the law insufficient for that purpose, and it is, at all events, with the desire to meet the difficulties which they have felt that we have put that subsection in the Bill. Now, neither the Amendment of the noble Earl which is later on the Paper, nor any other Amendment suggests a substitute for that first subsection, and if it goes out the end may be that, if the Bill survives, we shall have no provision against that kind of injury.
So with regard to the second subsection to which reference has been made. It is surely true that a threat of physical violence is not the only kind of threat against which the law ought to provide. The noble and learned Marquess, of whose speech I make no complaint, seemed to agree with some part of my observations on that point, and I am sure that there are few members of your Lordships' House who do not take the view that threats of injury—I do not say of social ostracism; I do not agree that that is included in the Bill—but threats of real injury other than physical injury—
§ THE LORD CHANCELLOR
Physical or material injury, that is, to person or to property, and I can conceive many besides those which I have given—that that kind of threat ought to be prevented. If most of us are agreed so far, then it becomes a question of wording, and I do suggest to the House, or at all events to that part of the House which agrees with our purpose if not with our machinery, that they should not join in this attempt to strike out a most important part of the Bill without first finding a proper substitute. I will certainly, if this Amendment is not accepted, make it my duty to reconsider every part of this clause with those who advise the Government, and with any others who 468 may be willing to give us their help. I will certainly take that burden upon myself, but I do hope that your Lordships will not take a course which may be fatal to the Bill—a consequence which noble Lords immediately opposite to me would bear with equanimity, but which at all events would make it very difficult indeed to pass this Bill within any reasonable limit of time. I hope that statement will be satisfactory to the House as a whole, and that this Amendment, if persisted in, will not be accepted.
§ EARL BEAUCHAMP
I hope the noble and learned Viscount will allow me to thank him for the latter part of what he said. We are only too ready to accept the assurance he has been good enough to give, that he will himself personally look into the matter and see if some amended form cannot be accepted. The latter part of his speech, may I say, was in the happiest contrast to what he said at the beginning. At the beginning he objected to the fact that the Amendment had been moved and twitted those who were in favour of it with the fact that no alternative form of words had been proposed. May I assure him that some of us and I suspect, though I have no right to say so, some of those who sit behind him would have suggested an alternative, but the reason why no alternative form of words was suggested was that we had no wish to embarrass the noble and learned Viscount by proposing an alternative form of words. We would much rather it was left to him to propose something of the kind. I can assure him that we sitting on these Benches entirely agree with the purpose of His Majesty's Government in endeavouring to prevent intimidation, but the only thing is we are afraid that the words in the Bill go a great deal too far, and, in conjunction with some of his own supporters, I venture to say that we welcome very warmly his readiness to look into the matter and see if some improvement cannot be brought forward on a subsequent occasion.
§ VISCOUNT HALDANE
I, too, agree with the noble Earl, Lord Beauchamp, that the latter part of the noble and learned Viscount's speech has put matters on a more satisfactory footing than the earlier part of his speech at least suggested. He has undertaken, as I understand 469 him, to reconsider the wording to which exception has been taken, to consider the criticisms which have been made by Lord Reading, Lord Gorell and others upon the language as it stands here; and to consider such vague expressions as the word "material"—whatever it covers I do not know. If that is done it certainly makes a difference, and it is worth while having the undertaking of the Government that they will go into this matter and see whether we can be freed from the apprehensions that many of us feel. I for one distrust altogether leaving it to the judgment of the police to say whether there has been interference in a material sense which the words here contemplate. But if the noble and learned Viscount, with his acuteness and the advice he commands, will go over the wording of the clause and will tell us when we get to the Report Stage what his conclusions are, then it may be he will be able to produce something that satisfies us all.
After the debate which has taken place and in view of what the noble and learned Viscount on the Woolsack has said, I think my proper course will be to ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
LORD ARNOLD moved to insert the following new subsection:—
(2) It is hereby declared that it is unlawful for one or more persons, whether acting on their own behalf or on behalf of any trade union for imposing restrictive conditions on the conduct of any trade or business with a view to prevent any person or firm or company, corporate or unincorporate, from carrying on their trade, industry, or profession as they will, by threat of boycott, social ostracism, publication of black lists or stop lists, or other means of intimidation, to coerce or cause reasonable apprehension of injury to such person, firm, or company corporate or unincorporate, or their property, and any person or corporation who acts in contravention of this subsection shall be liable on summary conviction to a fine of one hundred pounds, or in the case of a person, to imprisonment for a term not exceeding three months.
§ The noble Lord said: The object of this Amendment can be stated shortly. It is an endeavour to get some kind of equity between the law as it is applied to workers and as it is applied to some other sections of the community, or rather, as I should like it applied to some other sections of the community. The noble Marquess 470 who leads the House, when trying to justify this clause during the Second Reading, said it was the business of the Government to protect the community against crime and that if the present provisions of the law were not sufficient to protect the community against crime then, he said: "it is our business to amend it and that is what Clause 3 of the Bill does." That is making a very big claim, because Clause 3 only operates in regard to one section of the community. I think I shall have no difficulty in demonstrating to your Lordships that in one important respect an amendment in the law is required which this clause does not supply. I am not going back upon the last discussion. I do not myself agree that the clause is required. In my opinion the present law is quite sufficient to deal with that kind of intimidation, but if the Government are rght in what they are doing then it is their duty to guard against other kinds of intimidation as well.
§ There is a serious matter which I think I can demonstrate requires legislation in order to meet it and I have put down this Amendment, which I am hopeful the Government will look upon with favour especially in view of what the noble Marquess has said. This Amendment deals with a state of things which, I understand, is widespread. I think it will be correct to say that in the last ten or fifteen years there has been a growing practice in many trades for great associations to fix prices. This method of fixing prices below which, or even above which, persons cannot sell certain manufactures or articles, has, I believe, made very great strides numerically in the course of the last ten, fifteen or twenty years. I will give one illustration. It is an illustration drawn from the motor trade. I get it from the case of Ware and D'Freville versus the Motor Traders Association. The matter was brought to issue in that action in the King's Bench Division in 1921. I need scarcely say that I approach those mysterious realms of the law with the diffidence which becomes a layman, but this case, I think, is a pretty clear one and there are about it no difficult technicalities over which one is likely to stumble.
§ The plaintiffs in this case were dealers in motor-cars and the defendant Motor 471 Traders Association was a trade union. The Association consisted of manufacturers of motor vehicles and goods in connection with motors and it fixed certain prices for goods below which and above which those goods should not be sold. If there was a breach of this the by-laws of the Association provided that the Association might place the name of any person committing such a breach on what they call a stop list and give notice of the placing of this name on the stop list to all the members of the Association. The council of the Association might also place on the stop list the name of any person who should supply proprietary price-maintained articles to, or have any relation in regard to those articles with, any person whose name was on the stop list. In short, this stop list was to stop trade with persons whose names were upon it. The by-laws of the Association further provided that no member of the Association should supply proprietary price-maintained articles to, or have any relations in regard to those articles with, any person whose name was on the stop list. The machinery was very far-reaching indeed.
§ The plaintiffs in this case were not members of the Association, and on behalf of a customer they advertised for sale a new motor-car which was being manufactured by a member of the Association and was to be delivered shortly at a price exceeding the price fixed by the manufacturer. The council of the Association, after hearing what plaintiffs had to say, decided to place the name of the plaintiffs on the stop list. They published this stop list, with the plaintiffs' name among others in it, in trade journals. Of course that was a very serious matter, and the plaintiffs thereupon brought an action for an injunction to restrain the defendants, the Motor Traders Association, from publishing the plaintiffs' name in the stop list or from publishing any libel of the plaintiffs injuriously affecting them in their business. What was the result of the case? It was brought, as I have said, in the King's Bench Division, and judgment was given against the plaintiffs.
§ It was held, as to the alleged libel, that, in the absence of evidence that the words could be understood in a meaning other than their ordinary meaning, they were not capable of a defamatory meaning; and, secondly, it was held that 472 publication of the plaintiff's name in the stop list was done by the defendants bona fide in the protection of the trade interests of members of the Association and therefore was not unlawful. I suggest that that really is a serious state of things. We hear a lot from time to time—though I wait, and always have waited, for real evidence—about trade union "tyranny," so far as the workers are concerned, but is not that word applicable to the state of things which I have just brought before your Lordships as revealed in this case? If the Government condemn tyranny in trade unions of workers, how can they uphold it amongst employers? And I do not think anybody can deny that this action can properly be described as a tyrannical one. That is the only case I shall give your Lordships, although there are plenty of cases, well known no doubt to all those who are versed in the law—the case of Pratt versus the British Medical Association and the case of Sorrell versus Smith and so on.
§ The only other thing I will say before moving my Amendment is in reference to a remark made by the noble and learned Marquess that some objection might be taken to the word "coerce" which appears in the Amendment. I take it the suggestion was that as we yesterday objected to the word "coerced" in Clause 1—that is, coercing the Government—then it is inconsistent to put the word in the subsection which I am moving. I do not see any such inconsistency. Here "coerce" has a totally different meaning from the word in Clause 1. Here it is quite reasonably clear, but "coerce the Government" is a very different thing and opens up all kinds of wide considerations. I will go this far to meet the noble and learned Marquess. I think it is generally recognised that Amendments put down in Committee by lay Peers and by members in another place who have not the assistance of the Government draftsman may be subject to certain verbal alterations if the principle of the Amendment is accepted by the Government. That frequently happens. The principle of an Amendment is accepted, and then, between the Committee stage and Report, the Government devise words in conjunction with their skilled advisers which would carry out the meaning of the Amendment, as they hold, in better 473 language. If the Government take up that position in regard to this Amendment and can find better words, as far as I am concerned I shall be very happy to fall in with the suggestion and the Amendment can come up again on Report. I think that is all need say in moving the Amendment. I submit that it deals with a matter well worth the attention of the House and which is in place in the Bill because the Motor Trades Association is a trade union.
Page 4, line 21, at the end insert the said new subsection.—(Lord Arnold.)
§ THE LORD CHANCELLOR
I hope it is understood that the Act of 1875, to which reference was lately made, is bi-lateral and forbids intimidation either by employers or by workmen. Therefore, so far as this Amendment refers to any threat of physical or material injury, it is already the law and it is quite unnecessary, and I think mischievous, to try to word the law over again. But there is one interesting feature of this Amendment, that whereas noble Lords have been arguing strongly against any legislation to prevent intimidation or threats of injury other than physical or material injury, this Amendment refers mostly to injury of that very kind. The Amendment refers not only to boycott, but to social ostracism, to publication of black lists or stop lists, to causing reasonable apprehension of injury to the person, firm or company, or their property. Indeed, throughout, it is directed to injury other than physical and material injury.
If the noble Lord had set out to provide instances of that kind of injury he could hardly have done better than move this Amendment. But I think the noble Lord had better wait until he sees what we propose to add to the Bill on the subject of that kind of intimidation. In any case, this Amendment surely is not right. Whereas the Bill is bi-lateral and applies to employers and workmen, this Amendment applies to employers only. It is true the noble Lord has amended the Amendment. It originally referred to a trade union of employers for imposing restrictive conditions on the conduct of the trade but he has taken out the word "employers" and the words are now "trade union for imposing restrictive conditions." These words can 474 only refer to a union of employers, and would not include any kind of union of workers. Therefore he is proposing to legislate for one class only, whereas the Bill throughout refers both to employers and workmen. There are a number of criticisms which I might make, criticisms of detail, but it really is not worth while. I am sure the House under present conditions will not accept the Amendment.
§ VISCOUNT HALDANE
The purpose of this Amendment was to bring the employers on the same footing as workmen. In that sense it was bi-lateral. I agree that it is a very difficult Amendment to draw, because the employers' weapon is a different weapon from that of the workmen. The employer is not threatened with violence, or at least is not often threatened with violence. The employer may be threatened with being black-listed, which is a very serious matter, or with a variety of other means used by employers working together, which put in their hands a weapon very formidable. I agree that the clause, as it stands, has words that are wide in so far as they go beyond physical injury and words that do not go further than physical injury may not cover the sort of thing that ought to be dealt with.
But I gather that we have not seen the whole of this Bill yet, that there may be some new clauses at the end which will embody the intentions of the Government, and I also gather that we would do wisely to wait to see whether the Government would not provide for these matters which are not so far provided for. As the Bill was originally introduced into the other House, it was not bi-lateral, it did not apply to employers. But it was made to apply to employers, and a definition of lock-outs was put into the definition clause so as to bring combinations of employers within the scope of the Bill. If the Lord Chancellor may be taken as telling us that, if we will wait until we see the new matter which he proposes to introduce into the Bill, we shall see something which covers these points and which will enable us at least to discuss them, I shall be satisfied.
§ THE LORD CHANCELLOR
I will not undertake to propose an Amendment covering all these matters, because I 475 think that there is much in this Amendment which I could not suggest to the House.
§ VISCOUNT HALDANE
I do not mean to tie the Lord Chancellor to the words of this Amendment. I have said that it was very difficult to draw, but if he will draw an Amendment going to the substance of what we are complaining of—namely, that the employer with his different weapons is not to be upon the same footing as the workman with his different weapons—I shall be satisfied to wait and see what the Lord Chancellor has to say to us. I am quite aware of the difficulty of drawing the clause, but I think it can be and ought to be drawn, and unless it is drawn the clause is unfair.
§ THE LORD CHANCELLOR
I do not want to be misunderstood. I must not be bound by any pledge to deal with this matter or that matter, but I will do the best I can to meet the criticisms that have been offered.
§ VISCOUNT HALDANE
I do not want to tie the Lord Chancellor to a definition of his undertaking, because that might be as difficult as to draw the clause on the spot, but if he will apply his mind to the subject generally—he knows what our point is—I shall be content, speaking for myself, to wait.
§ LORD DANESFORT
I hope that the Lord Chancellor will not, on Report or on any other stage, bring in any Amendment dealing with the matter that has been the subject of the Amendment before the House, because it appears to me that Lord Arnold's Amendment, if I may be allowed to say so, is wholly outside the Bill. It has nothing whatever to do with trade disputes, and any Amendment that he might introduce on the lines that he suggests would be outside the scope of the Bill. I trust that the Lord Chancellor will not make any attempt to introduce an Amendment of that character.
§ LORD ARNOLD
In view of the discussion that has taken place, and of the Lord Chancellor's observations, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ EARL RUSSELLhad give Notice to move to omit all words from subsection 476 (2) after "property." The noble Earl said: This is an Amendment which deals with the words "injury other than physical or material injury." I have brought the point very often to the attention of the noble and learned Viscount, and it is one of the points that he is going to consider when he draws the clause. I do not, therefore, propose to move this Amendment, but I hope that when we do come to this point again we shall have some words that we can understand.
EARL DE LA WARR moved, after subsection (3), to insert:—
(4) It shall not be lawful for one or more persons (whether acting on their own behalf or on behalf of an individual employer or firm, and notwithstanding that they may be acting in contemplation or furtherance of a trade dispute) to convey by any means information which may be used for the purpose of preventing the employment by another employer of any person taking part in or who has taken part in a trade dispute, and any person who acts in contravention of this subsection shall be liable on summary conviction to a fine not exceeding one hundred pounds in each case or to imprisonment for a term not exceeding twelve months.
§ The noble Earl said: This might be called a sister Amendment to the proposal of the noble Lord, Lord Arnold. I can put the matter very briefly. The Government and noble Lords on the Conservative side of the House have repeatedly told us that they are anxious to make this Bill as fair as possible and to apply it equally to employers and employed. We have had so many assurances from the Government on that point that I think we can take it for granted that we are all agreed. This clause deals with intimidation by workmen. My Amendment attempts to deal with intimidation by employers. The particular method that is to be provided against by my Amendment is that known as blacklisting by employers. I have correspondence here to illustrate my point, but I hope that I need not use it.
§ Take the case of a strike breaking out in a factory or shipyard in a particular industry. There are a number of men on strike who will probably be going round to factories or shipyards elsewhere to find alternative employment. There is a method known as black-listing, by which employers send names of their employees to these other factories in order to 477 prevent their getting employment. Without arguing the point, that, very briefly, is the purpose of this Amendment. The noble and learned Viscount, the Lord Chancellor, has been a great deal more conciliatory to us to-day than he was yesterday and has offered to reconsider the whole of the existing clause, and I gather from the discussion that has just taken place on Lord Arnold's Amendment that, while he was unwilling to commit himself in any way, he was prepared to consider the substance of the Amendment. I would ask him if he is prepared to consider, not the wording of the present Amendment, but its substance. In that case I would, of course, withdraw it until a later stage of the Bill without asking him in any way to commit him self.
Page 4, line 31, at end insert the said new subsection.—(Earl De La Warr.)
§ LORD ARNOLD
I would ask permission before the Lord Chancellor speaks to bring before your Lordships certain matters which I think reveal a very serious state of things which I put forward for the consideration of the Government and the Lord Chancellor. They really bear upon the Amendment that has been formally moved by my noble friend. It may perhaps be held that one or two of there cases, which are quite short, could come in better on the Motion to leave out Clause 3, but I think it will be more convenient if I deal with them now. If I may say so with respect to the Lord Chancellor, I am rather more particular in matters of order than he suggested yesterday, and I do not agree that anything that I said yesterday was not in order. It might be said that some of these cases could come at the end of the clause—
§ LORD ARNOLD
Yes, certainly. These cases are for the consideration of the Government in connection with the Amendment, and undoubtedly they bear 478 closely upon it. They have to do with the state of things that has arisen in Nottinghamshire as a result of the coal dispute, and they indicate, I am afraid, that there is a great deal of victimisation by employers going on in that county at the present time, some of which appears to me to come under the proposals of the Amendment moved by my noble friend Lord Da La Warr. Your Lordships are probably aware that in Nottinghamshire there are now what I might call two rival unions—namely, the Nottinghamshire Miners' Association, which is the old miners' union, and the new union, the Industrial Union, with which Mr. Spencer, M.P., is so closely connected. I am sorry to say that matters are so working out that some very worthy men connected with the Nottinghamshire Miners' Association are being, as it seems to me, victimised at the present time.
Let me give two or three short examples. For instance, quite recently three men were successively dismissed from the Blidworth colliery for taking the office of secretary of the branch of the Nottinghamshire Miners' Association there. They were dismissed and, as I understand, a man who had previously been victimised is now acting in that position. As recently as last week three men at Radford colliery, branch of the Wollaton Colliery Co., Ltd., including a man with forty years' service with the company, were dismissed for signing a notice under the Checkweighers Act to take a ballot to ascertain if the present checkweighman, a man connected with the new union, had the confidence of the men. Since the strike also twelve men of the executive committee of the Nottinghamshire Miners' Association have never done any work. They are blacklisted throughout the county. Their names will have been circulated round. The brother of Mr. Varley, M.P., who spoke yesterday in the debate, one of the most respected miners' leaders in the country, was blacklisted and could not get work. So I could go on giving cases.
§ LORD ARNOLD
It seems to me that must be the case when nobody will employ them. I do not see, otherwise, how it is that none of them are able to obtain work, although they have been in employment for a large number of years. I have other cases, but I do not think it is necessary to go over them. I submit this is a matter that ought to receive the consideration of the Government. Quite apart from anything else, it is perfectly obvious that this kind of thing must lead to the worst possible feeling. You cannot expect industrial peace if this kind of thing is going on.
§ THE LORD CHANCELLOR
The noble Lord, Lord Arnold, complained that I accused him yesterday of irrelevancy. If I did not do so yesterday I do so to-day, for I cannot conceive anything more irrelevant than his speech to-day. He told a number of stories in connection with the Amendment—
§ LORD ARNOLD
I did say that one or two of the cases would be more relevant to the clause as a whole. I did not say they all related to the Amendment.
§ THE LORD CHANCELLOR
My noble friend rose and asked him whether he was going to deal with the Amendment and he said, Yes. His series of stories had nothing to do with the Amendment. What he told us requires a great deal of checking and we cannot a accept it without some sort of evidence, which he does not seem to possess. Let us leave those stories alone, as they do not concern the Amendment in any way. As to the noble Earl who moved the Amendment, I am afraid I cannot undertake, in any words I may move hereafter, to satisfy his wishes as expressed in this Amendment, because it is wholly impossible. He proposes that no employer—it is confined entirely to employers—shall convey by any means, whether by speech or writing or anything else, information which may be used for the purpose of preventing the employment by any other employer of any person who has taken part in a trade dispute. In other words, when once a man has taken part in a trade dispute you are not to say a word 480 about him to any other employer. If he is the worst workman you have ever had, you cannot mention it. If he has committed a crime, you must not mention it. His name is taboo and you must not mention it. He has qualified himself for ever for that immunity because he has taken part in a trade dispute. Does the noble Earl propose that this should apply to one side only, or will he extend his Amendment and say that when once an employer has been engaged in a trade dispute no workman shall say a word about him? The vocabulary of the Labour Party would be bankrupt. They could not use the word "blackleg" or any of the other interesting epithets they use. If this Amendment is passed, something similar would have to be applied to the men and they would be the first to complain if it were done.
§ On Question, Amendment negatived.
§ LORD THOMSON
After the statement of the noble and learned Viscount, the Lord Chancellor, on the subject of Clause 3, I do not propose to move my Amendment, but I will submit certain considerations to him.
§ LORD THOMSON moved to leave out subsection (4). The noble Lord said: I move this formally because this subsection is not only unintelligible to me but it is unintelligible to several eminent lawyers, both inside and outside the House, whom I have consulted. I shall be most grateful if the Lord Chancellor will consider certain points. The first question I would like to put on this subsection is whether it repeals the 1906 Act so far as picketing is concerned. It seems, as I read it, to give a new definition of picketing. It makes it illegal for one or more persons to be anywhere near a house, even for peaceful persuasion or peacefully obtaining or communicating information which may lead to the occupant of that house abstaining from work. I did not gather from the remarks made by the Lord Chancellor on a previous Amendment that that was the intention of the Government entirely, but I submit that it is rather implicit in the subsection to which I referred. It is for that reason that I am really asking for information on the point. I would also suggest that, if that is going 481 to be the law of the land in the future, then social intercourse in a crowded mining centre is going to become extra-ordinarily difficult, because these people live very close to one another, and they are practically in a position to watch or beset every house from their door-steps, and peaceful persuasion, if illegal, will lead to the conviction of a great many people for unlawful acts.
Page 4, lines 32 to 40, leave out subsection (4).—(Lord Thomson.)
§ LORD PARMOOR
Before the noble and learned Viscount replies, may I say one word? The subsection says "Notwithstanding anything in any Act," What do those words mean there?
§ THE LORD CHANCELLOR
I really would like to meet the lawyer who told the noble Lord that he did not understand this subsection, and I should like to but to him a few questions. In the absence of that privilege I will do my best to tell the noble Lord what the subsection is intended to do. It does not, and cannot, interfere with canvassing in the ordinary and proper sense. There is nothing to prevent people going to a man's house, calling upon him, and trying to persuade him by proper means either to go to work or not to go to work; but it does modify, to some extent, the present law so far as it refers to home picketing; that is, picketing at a man's house. The words to which Lord Parmoor referred are inserted for that reason, that the subsection does, to some extent, modify the ordinary peaceful persuasion clause. It does this. We are dealing now, not with the place where the man works, or with intimidation on the way to work, but with attendance at the man's home, and we propose to forbid that attendance if it amounts to watching or besetting, words which, as my noble friend behind me said, are well known to the law.
May I take an instance? Under pretence of picketing at a home all kinds of things have been done. People have assembled outside a man's house, banging tin cans, singing abusive songs, calling out abuse, and that kind of thing, with the result that while there has been no physical intimidation there has been something very much worse, for cases have occurred where a workingman or his wife or children have suffered so much 482 in health owing to this kind of conduct, that it could no longer be endured. That is an instance of watching or besetting. Watching or besetting, as has been often said, does not mean simply waiting outside, or living next door, and keeping your eyes open, but it is conduct which seriously interferes with the ordinary comfort of human existence, and the ordinary enjoyment of the house. I am quoting from decided cases—and we want to forbid home picketing so far as it has that effect. I really think, with great respect to the noble Lord, that to any lawyer, except the one whom he has had the privilege of consulting, the effect of the clause would be clear.
§ Amendment, by leave, withdrawn.
LORD CHARNWOOD moved, in subsection (4), to leave out all words after "place" and insert, as a new subsection:—
(5) Any person who acts in contravention of any provision of this section shall be liable upon summary conviction thereof to a penalty not exceeding five pounds or to imprisonment for a term not exceeding one month with or without hard labour, provided that any Court of summary jurisdiction before whom such person is prosecuted, may in its discretion commit such person to be tried upon indictment, and that if so tried, such person shall on conviction be liable to a fine not exceeding twenty pounds or to imprisonment for a term not exceeding three months, with or without hard labour.
§ The noble Lord said: I think it will possibly be said that my Amendment is imperfectly drafted, but the words that I have put down will, I think, be sufficiently plain, and I need not occupy your Lordships long in explaining my problem. This clause deals with a class of actions in the nature of intimidation by a crowd. Those actions are apt to be grievously and painfully oppressive to the person suffering from them. That is common ground. On the other hand, I think it is also common ground that those who participate in those acts may, in a large number, and perhaps the majority, of cases, not be actuated by any base or malignant motive. Very often crowds of young men are drawn into participating in these acts in a lighthearted sort of way, actuated by the sort of influence by which we ourselves, or some of us, may at one time or another in our school days 483 or even later, have been led to make ourselves a serious nuisance to our neighbours. That does not diminish, but rather adds to, the social danger which these crowds constitute.
§ The conclusion which I draw from that is that severity of punishment for these offences may often be entirely out of place, but, on the other hand, swiftness and promptitude of punishment is excedingly necessary for the preservation of the peace and the protection of the persons injured. When a few young men are collared by the police, in a crowd, committing the offence in question, it really serves very little good that they should, after a lapse of some weeks, when the whole dispute, it may be, has blown over and had best be forgotten, be brought up at the Assizes or Quarter Sessions and dealt with with becoming severity; while in the meantime they have been at large on bail. On the other hand, it does serve a very useful purpose if, within twenty-four hours of being apprehended, they should have experienced some of the undoubtedly unpleasant consequences which may follow their actions.
§ As I look at the Bill my purpose is to a very large extent carried out by subsection (4) with regard to one particular class of offence covered by the clause. Where the offence consists in watching or besetting a man's dwellinghouse the Bill, as it stands, provides for the offence being dealt with summarily, but, as I understand it, there is a large class of cases where the offence is committed against a man not in his house but as he enters or leaves the place where he works, or on the road in between. There the case is different. The offence would then be dealt with under the Act of 1875, and it is at the option of the accused person to be dealt with summarily or to be committed for trial before a jury. I dare say that in the greater number of cases the accused person would prefer to be dealt with at once by a magistrate. Probably, if left to himself, the accused generally will do so, but very often such people are not left to themselves. They are exposed to very bad advice, and their mischievous adviser, wishing to make trouble, would advise them to object to being dealt with summarily. In that case the problem which I have described 484 happens. The matter is dragged up afterwards when perhaps it might just as well be forgotten.
§ Therefore, I am suggesting by this Amendment that all offences coming within the scope of this clause shall be dealt with summarily by the magistrates, whether the accused person chooses or not, provided the magistrates should think fit so to deal with them. That is the main object of my Amendment—to deal with all offences to which the clause in any way relates in the same manner in which the particular offence of watching and besetting a dwelling house is dealt with; beyond that, however, that the magistrate should have the option in graver cases of sending a person to take his trial before a jury, in which case he would be liable to graver penalties. I imagine that in really grave cases which this clause hits, the offender will probably have rendered himself liable to be indicted at Common Law for some other offence, but I think that summary justice in most of these cases is the most suitable thing.
§ It appears to me in my relative ignorance that it will still be convenient that the magistrates should have the power of sending a man to be tried by a jury, for this reason. There are very apt to be other and graver charges against him at the same time, some of them of an indictable nature. Further, while enabling the magistrate to deal with all these offences summarily, I have thought it right to accompany that with words which restrict the extent of the penalty which they may impose, cutting down three months imprisonment to one. I believe that in the great majority of these cases that would meet the case, because I think it must be remembered that these offences are largely committed by youths who in other times do not get into any trouble at all, and to whom it is even a considerable shock to find themselves brought up as malefactors in a police court. I do not so much lay stress upon that, however. The main purpose for which I have put down this Amendment, for which I ask the kindly consideration of the noble and learned Viscount, is to provide that this whole class of offences shall, for the better protection of the offenders, be allowed to be dealt with summarily by the magistrates.485
Page 4, line 36, leave out from ("place") to the end of subsection (4), and insert the said new subsection.—(Lord Charnwood.)
§ THE LORD CHANCELLOR
My noble friend has stated very clearly his reasons for moving this Amendment, but I think there is something to be said on the other side. I think that, after hearing what I have to say, he may not press it. He is really proposing to deal with two points. First, he wants a penalty imposed by this subsection against breaches, not of the subsection itself, as the Bill provides, but of the whole clause.
§ LORD CHARNWOOD
I was suggesting that we delete the last words of the subsection and insert a new subsection.
§ THE LORD CHANCELLOR
I know that. But the effect of his new subsection is that the noble Lord provides a penalty for breaches of any part of the clause as a whole. Perhaps he does not mean that.
§ THE LORD CHANCELLOR
Then I was right. But there is this inconvenience in that course. The House has already passed the lines in subsection (1) which make a breach of subsection (1) a watching or besetting under the Conspiracy and Protection of Property Act, 1875. That Act provides its own penalty for watching and besetting, and if you put in a new penalty here you have two penalties, quite inconsistent with each other, for the same offence. Surely it is right to leave matters as they stand with regard to subsection (1), and not to disturb what the House has already assented to. The other effect of the Amendment would be to reduce the penalty from three months to one month in the case of an offence tried at the police court, but to enable the court of summary jurisdiction to send such a case to Quarter Sessions, in which case the penalty, he suggests, should be three months. I think there are two objections to that. First, I do not think that our maximum penalty of three months proposed in the Bill is at all high for this class of intimidation. One month would seem to me too little as a maximum for the offence of intimidation, even though that offence may be dealt with at petty sessions.
486 But, secondly, it is not the practice to leave to the magistrate the option of sending a case for trial or not. As the noble Lord knows, it is to the accused, as a rule, that that option is given, and he knows well that if he elects to go to trial at Quarter Sessions or Assizes, whatever the offence may be, he runs the risk of a considerably higher penalty than that which magistrates could or would impose. I must say that if such a case as this is sent for trial the maximum of three months would itself become far too low, and a higher penalty should be possible. The noble Lord knows quite well that a person convicted at petty sessions may appeal to Quarter Sessions, and so, if he wishes to go to another Court, he has the right to do so. I do not think it would be in accordance with our practice in this country, or wise, to leave the option in such a case to the magistrates. I hope, therefore, that on the whole the House will assent to the clause remaining in its present form.
§ LORD CHARNWOOD
On that answer of the noble and learned Viscount, I do not wish to press the Amendment.
§ Amendment, by leave, withdrawn.
§ THE EARL OF HALSBURY moved to leave out Clause 3 and insert as a new clause—
§ ".—(1) Every person who, with a view to compel any other person to abstain from doing or to do any act which such other person has a legal right to do or abstain from doing, wrongfully and without legal authority—
- (i) uses violence to or intimidates such other person or his wife or children, or injures his property or threatens to do or cause any person to do any act calculated to cause such other person or his wife or any of his children to suffer loss of employment or other material damage; or
- (ii) persistently follows such other person about from place to place; or
- (iii) hides any tools, clothes or other property owned or used by such other person, or deprives him of or hinders him in the use thereof; or
- (iv) watches or besets the house or other place where such other person resides or works, or carries on business, or happens to be, or the approach to such house or place; or
- (v) follows such other person with two or more other persons in a disorderly manner in or through any street or road; or
- (vi) against the will or in the absence of any such person remains in the house in which such person resides; or
- (vii) under pretext of peacefully obtaining or communicating information to or of peacefully persuading such other person to work or abstain from working in the company or presence or sight or hearing of an assembly of twelve or more persons on strike or knowing such assembly to be in such close proximity as to be calculated by reason of such proximity to intimidate such other person approaches or accosts such other person in any street or place, whether public or private, or enters or endeavours to enter the house where such other person resides;
§ Provided always and it is hereby declared that it is and shall be lawful for one or more persons not exceeding twelve acting on their own behalf or on behalf of a trade union or of an individual employer or firm in contemplation or furtherance of a trade dispute to attend at or near a house or place where a person resides or works or carries on business or happens to be, if they so attend merely for the purpose of peacefully obtaining or communicating information, or of peacefully persuading any person to work or abstain from working.
§ (2) Where there appears to be reason to apprehend that an assembly of persons for the purpose of the holding of any meeting or the holding of any procession in any street or other place, while a trade dispute is in progress, will give rise to disorder or will conduce to a breach of the peace or to any injury to any person or property, or to the commission of any offence under the last preceding section, the chief constable may make an order prohibiting the holding of any meeting or procession in any such street or place during such time as the trade dispute is in progress, and if a meeting or procession is held or attempted to be held in contravention of any such prohibition it shall be lawful to take such steps as may be necessary to disperse the meeting or procession or to prevent the holding thereof, and if any person takes part in or attempts to take part in any such assembly or procession he shall be guilty of an offence against this Act, and shall on conviction thereof by a Court of summary jurisdiction or on indictment as hereinafter mentioned be liable to a penalty not exceeding twenty pounds and to be imprisoned for a term not exceeding three months with or without hard labour: Provided that nothing in this section shall be construed as preventing proceedings by indictment or otherwise being taken against any such person for any offence at Common Law or under any enactment which could have been taken if this Act had not been passed.488
§ (3) Where a person is accused before a Court of summary jurisdiction of any offence made punishable by either of the last two preceding sections of this Act, the accused may on appearing before the Court of summary jurisdiction declare that he objects to being tried for such offence by a Court of summary jurisdiction, and thereupon the Court of summary jurisdiction may deal with the case in all respects as if the accused were charged with an indictable offence and not an offence punishable on summary conviction, and the offence may be prosecuted on indictment accordingly."
§ The noble and learned Earl said: I am fully aware that I have already received a rebuke from the noble and learned Viscount for saying that I would vote for the deletion of the first three subsections of Clause 3 without first of all seeing that a substitute would be provided. I am afraid I am quite unrepentant, because if the whole of Clause 3 goes I cannot conceive that it would do any harm whatsoever, except possibly to get rid of a certain confusion. I said on Second Reading that I have had some very considerable experience of cases of intimidation during 1925 and 1926 and in trials going on down to this year. I cannot think of any case that I had with which the law was not perfectly competent to deal, as it is now, or which would have been in any way bettered by Clause 3 of this Bill. The first subsection merely repeats that unlawful assembly is an offence. That we knew before. The latter half of it deals with besetting—that we knew before—and subsection (4) deals with besetting again. I was very astonished when the Lord Chancellor said in reply that this was drafted in full accord with the wishes of the police; at least so I understood him to say.
§ THE LORD CHANCELLOR.
I did not say that. I said it was provided to meet representations by the police, who said they had difficulty in enforcing the present law. They were certainly not concerned with the drafting and no one else approved the drafting.
§ THE EARL OF HALSBURY
I was not suggesting that, but that it was drafted after their suggestions had been made. I am bound to say, after some months' work with the chief constables and the senior superintendents of police, that astonishes me, because I do know a good many matters that they consider extremely important are not dealt with in this Bill and 489 I cannot see anything at the moment of very great importance that is dealt with in this Bill. I have a very formidable looking Amendment on the Paper, but if Your Lordships will look at it you will find it is not so formidable as it seems. The first principle on which I have gone is that the law ought to be made clear to the men, and for that reason, instead of having an odd section floating among other Acts of Parliament which are left untouched, I have endeavoured to bring all the Acts of Parliament which concern the men together. The first five subsections of Section 1 of the 1875 Act are put in without one single word altered. My ambition is to get a clear statement of the law, although I am not at all certain, if one had a freer hand, there might not be made amendments in the 1875 Act. But I was so anxious it should be made clear without any confusion that there is not one single word altered.
I have made it clear, I hope, that in my opinion, after the experience I have had, the men do not know the law at this present time, and perhaps I am a little strengthened in that by something that happened yesterday. The noble Lord, Lord Arnold, rather suggested to us that we had received the verbal inspiration of The Times newspaper and, although that was not quite accepted on this side of the House, it is surely accepted that The Times is a newspaper of some considerable repute. After reading some article that Lord Arnold had quoted from I found that that newspaper had animadverted on the Amendment standing in my name. What it suggested was that I had gone beyond anything that had gone before because I had suggested as an Amendment to the present law that it would be an offence for anybody to "hide any tools, clothes or other property owned or used by such other person," etc. But that has been the law since 1875, and if The Times newspaper can make mistakes of that kind is it to be wondered at that the unfortunate workman makes mistakes? And ought he not to have as a first principle all the law which deals with this matter in one document so that he that runs may read?
I come to two new propositions that I have ventured to put in the Amendment. One deals with a matter that we found in South Wales rather difficult 490 to deal with. You got the instance of a person who waited till the workman had gone out of the house, then went into the house and undoubtedly and quite wrongly influenced the workman's wife. It is difficult to say, and it is more difficult still to prove, that that would be an offence under this clause. Your Lordships will observe that it is all governed by the early cords "with a view to compel any other person to abstain." It has nothing whatever to do with the ordinary friendly visit of one person to another, but it does seem to me—and it certainly was our experience in South Wales—that it a matter of grave consideration as to whether or not you should not do something to prevent a man going into a house when the workman himself is not there for the purpose of influencing his wife.
Paragraph (vii) of the Amendment deals with a matter that I mentioned on the Second Reading and it is this. Over and over again we learnt this lesson from the 1925 riots. If the people who were anxious for disorder led the crowds it was easy enough to deal with them, but it was not easy to do so if they went up by themselves and the crowd came up by a different route behind them. It was then almost impossible to get at the people that you really wanted to prosecute. It was mostly irresponsible Youths who were in the front ranks—boys of 16 or 17 years of age—and they were not the people you really wanted to punish. People stood in front of the crowd and said: "We have nothing to do with the crowd," and the crowd said: "We have nothing to do with them"; and the difficulty was to get any jury to connect the two. Occasionally you succeeded in doing so, but often you failed. The Amendment I am suggesting here is that if there are a number of strikers in a crowd, and if friends of the strikers do in fact come and stand behind and make a menace to the people, or if to the knowledge of the picket they are in such close proximity that they are a menace, then that is to be an offence.
Your Lordships may think that that is a different principle entirely from the principle of letting the men know exactly what the law is, and perhaps your Lordships may be inclined to accept one principle of the Amendment and not the other. 491 I do not for a moment suggest that the Amendment I am putting before your Lordships is necessarily the best Amendment, or anything like it, that can be made. It is only an attempt to get before your Lordships a general principle and also to define things which it was found the law was not strong enough to meet. I have inserted part of the words of the 1875 Act—"shall be deemed to be guilty of a breach of the peace." That is for any of these offences. The reason for those words is that it was found over and over again, when you had these disturbances going on, that they would start probably at seven o'clock in the morning with something little more than peaceful persuasion. Later in the morning they would get to something you could call the beginning of intimidation. But none of those are matters which permit of summary arrest being made by the police. The disturbances gradually got worse and worse until, by the afternoon or evening, you had a real riot breaking out. Once you get a riot breaking out the police have no time to arrest a man and take him away. If a firm hand had been shown earlier in the day probably these most unfortunate riots would never have taken place, and for that reason the police are very anxious to have the power of summary arrest in these matters. In such a case a man after arrest can be taken before a magistrate and dealt with very quickly or, if he chooses, he can go to the Assizes for trial. This provision in my Amendment gives the police a chance to act early before any real disturbance has taken place.
The next point is this. It is clear that whatever else you are going to do you cannot, with any fairness to workmen, leave Section 2 of the 1906 Act without saying something about it. Either it ought to be repealed or something ought to be said. The wording of the section is "one or more persons" and that has been construed to mean up to thousands. Although I quite agree that Clause 3 of the Bill as it stands says, if that in fact means an unlawful assembly, then you can deal with it; but surely something more definite than that ought to be given to the men. I have suggested one or more, not exceeding twelve. If, in fact, it is really peaceful persuasion, why do you want more than twelve? There is no virtue in 492 the particular number. It may be thought three would be enough, it may be thought it would be reasonable to go up to twenty, but do have some limitation so that men may know definitely, once for all, "If we go in more numbers than that we are committing an offence."
Before I come to subsection (2), I want, if I may, to go to subsection (3) because I can tell your Lordships at once that subsection (3) is Section 9 of the Act of 1875 re-enacted without one word of alteration. That deals, I think, with the law as it at present stands. Subsection (2), I say frankly, I know to be a very controversial matter. It may be that your Lordships will think it is going too far. But undoubtedly it is true that in the Welsh coalfields certainly—and, from information I have, in other places as well, and it seems reasonable that it should be so—the three places where a crowd is dangerous and likely to break into riot are the worker's house, the works themselves and the road between the two. If you could take, as I have attempted to take, a leaf out of the old law and go back to the original idea of a riot and say that a crowd itself is an offence once a proclamation has been made, then it seems to me that the police could deal very easily with the situation and you would undoubtedly get rid of a great deal of this violence. A proclamation in a riot is, as your Lordships know, made by a magistrate. It is popularly known as reading the Riot Act.
But, in an industrial dispute, you have a much easier method. You do not get a riot at once when a strike breaks out. You have time to look around and time to think, and a person in the position of the Chief Constable of a county, who knows his villages and knows the places where it is likely there would be the provocative sight of men going to and from work, can say: "I don't want a crowd here." He can put up a proclamation by notice in the town or village making it quite clear to the men that a crowd must not collect in that particular area, that they may hold as many meetings as they like and as many processions as they like but not in that particular area. It may be that I have drafted it badly. It may be that in my particular draft I have made my net too wide, or it may be that I have suggested giving too much power to the Chief Constable of the county. If 493 so, I say quite frankly that that is defective drafting on my part. My intention was that, the Chief Constable knowing there were certain danger-spots, a proclamation should be made that is those danger-spots a crowd should not collect. I am afraid I have detained your Lordships rather long over this Amendment, but in my view this intimidation clause is, if not the most important, certainly one of the most important clauses in the Bill. The greatest care ought to be taken before new legislation is allowed to go out, to see that that legislation is fit and proper to meet all the difficulties.
Leave out Clause 3 and insert the said new clause.—(The Earl of Halsbury.)
§ LORD PHILLIMORE
Before the Lord Chancellor rises I should like to ask the Government, if it is not too late, to give very serious consideration to the Amendment which has been so clearly explained by the noble Earl who has just spoken. I cannot help thinking that there is very great merit in both forms of his proposal, and I speak with some little experience because, formerly as a Judge, I have had to try Welsh intimidation cases in time of strikes. I also know what experience the noble Earl had during the last strike and I feel sure that the fruit of his experience is well worth considering.
§ LORD BANBURY OF SOUTHAM
The noble Earl, as we all know, has had great experience and, as he says, intimidation is probably the most important thing we have to deal with in this Bill. I earnestly hope the Lord Chancellor will accept the Amendment.
§ THE MARQUESS OF READING
I think it is well that we should know where we stand in this matter. I feel in some difficulty and I think those associated with me are also in that position. There are parts of this new clause, as moved, that we will accept, but there are one or two parts of it to which we object. We do not want to have to divide on the clause as it at present stands because we do not know at this moment what the noble and learned Viscount, the Lord Chancellor, intends to bring forward on another occasion in reference to the earlier part of Clause 3 which has a most important bearing upon it. I agree 494 that it does not meet all questions, but it has an important bearing. I should like to know whether it is possible, before dealing with the clause and the Amendment proposed, that we should know what it is the Lord Chancellor will propose to the House as the result of the consideration that he may give. He may know whether the Bill is to stand as it is, or whether there is to be an alteration, and if we knew that it would make it very much easier to deal with.
If I may suggest, with all respect to the House, as a revising Second Chamber—I must use that description again—it is very useful to know what we are doing. If, for example, the House were to accept the Amendment, it would seem to me to get rid of what has been said by the Lord Chancellor in the earlier part of the discussion. I am sure he agrees with me in that. Surely that is not wise in view of what has happened? We have agreed in this House that there shall be further consideration given to words, which I need not repeat, which have a very important bearing on the whole question of intimidation under Clause 3. I am impressed by what was said by the noble Earl in moving the Amendment, but I do hope it may be possible to deal with it when we have the whole question before us and when we know what alterations, if any, are to be proposed by the Lord Chancellor when he has had time to consider the matter.
§ THE LORD CHANCELLOR
I confess I thought we had arrived at a kind of concordat. An Amendment was moved to leave out the first three subsections of the clause, and that Amendment was withdrawn and those subsections remained in the clause, on my undertaking to consider the whole matter and see whether I could not meet the criticism which had been made from the two sides of the House. After that I certainly thought that this Amendment would not be moved, and I hope and believe that it will not be pressed. That being so I do not feel that I should be right in discussing in detail the subject which my noble friend has raised. I only want to say that I do not accept his conclusions upon the clause itself, nor am I satisfied with his substitute clause.
I should like to put to the House this general consideration. If we 495 were to take the course now proposed of striking out the existing clause and putting in the new one I think Parliament would be landed in great difficulties. You would be sending down to another place a new clause which, as my noble friend has said, embodies not only a new law but all the existing law on the subject. It would be open to members of the other House, and indeed of this House at some further stage, to discuss the whole question of the law of intimidation, to endeavour to amend and either to strengthen or weaken the existing law. The whole matter would be at large. You might have discussions proceeding for weeks on a matter of that kind and there would be no probability of passing the Bill within any reasonable time. I am all in favour of consolidation, and if and when the law is amended I should certainly hope that a Bill will be brought in consolidating, not one part of the law affecting trade unions, but the whole of it. But to endeavour to take this opportunity to consolidate a section of the law, with a result that might give rise to endless discussion and which must needs do great harm to the Bill and undo much that we have done, would, I think, be a grave mistake.
Having said that, I can only repeat that I am willing to consider the whole thing. I do not like some parts of my noble friend's clause. I do not like the twelve pickets outside a man's house. I think there are places where twelve may be too many, as for instance at the entrance to a narrow passage or something of that sort. Nor do I like his proposal that the Chief Constable of his own motion may disperse a meeting. We have had some experience of that matter, and quite lately the Secretary of State has taken the responsibility of proscribing a meeting. But it has never been left to a Chief Constable to take that step, and in that respect I think this clause is open to criticism. But I do not want to go into details. I suggest to my noble friend that, in view of the discussion that has taken place and the fact that a previous Amendment was withdrawn with the unanimous consent of the House on the assurance that I gave, he should take the same course regarding this Amendment.
§ VISCOUNT HALDANE
I am the less impressed by what the Lord Chancellor has said about the difficulty of consolidation by the fact that we do not know what we have to consolidate. This Bill came up from the other House in a form which was lacking in the very things that we desired to know, and the great merit of the proposals of the noble and learned Earl is that he has put them on paper and has definitely tried to tell the public what the law is and how it is to be dealt with. In that respect I am very much in favour of his attempt, and I think that it is a valuable proposal in connection with the Bill. On the other hand, I am much impressed by what the Lord Chancellor has said as to the difficulty of finding acceptance of this clause and with what has been spoken of as the concordat—I call it by that name without prejudice and without thinking that the Lord Chancellor is in any way tied—that he is going to apply his mind to this subject and to give us the benefit of his reflections. I do not think that he could do this if we tied his hands with a new clause at this stage, and accordingly, speaking for myself, if the noble and learned Earl thinks fit not to press his clause, on the footing that the matter is to be considered and that, we may see when we come to the point again what the Lord Chancellor has to give us as the outcome of his reflections and, if necessary, bring up the noble and learned Earl's proposal de novo, I shall be satisfied.
§ THE EARL OF HALSBURY
Perhaps I may be allowed to say that this is probably due to a misunderstanding of mine. I did not quite gather that the Lord Chancellor was saying that he would apply his mind to the matters that I was going to bring up on my Amendment. Otherwise I should very likely not have moved the Amendment at all. After what he has said, I am, of course, only too glad to withdraw it.
§ VISCOUNT BERTIE OF THAME
I hope that the noble and learned Viscount will take into consideration the dependents of men, whether they come within the category of "family" or not.
§ Amendment, by leave, withdrawn.
§ Clause 3 agreed to.497
§ Clause 4:
§ Provisions as to political fund.
§ 4. (1) It shall not be lawful to require any member of a trade union to make any contribution to the political fund of a trade union unless he has at some time after the commencement of this Act and before he is first thereafter required to make such a contribution delivered at the head office or some branch office of the trade union, notice in writing in the form set out in the First Schedule to this Act of his willingness to contribute to that fund and has not withdrawn the notice in manner hereinafter provided; and every member of a trade union who has not delivered such a notice as aforesaid, or who, having delivered such a notice, has withdrawn it in manner hereinafter provided, shall be deemed for the purposes of the Trade Union Act, 1913, to be a member who is exempt from the obligation to contribute to the political fund of the union, and references in that Act to a member who is so exempt shall be construed accordingly:
§ Provided that, if at any time a member of a trade union who has delivered such a notice as aforesaid gives notice of withdrawal thereof, delivered at the head office or at any branch office of the trade union, he shall be deemed for the purposes of this subsection to have withdrawn the notice as from the first day of January next after the delivery of the notice of withdrawal.
§ For the purposes of this subsection a notice may be delivered personally or by any authorised agent and any notice shall be deemed to have been delivered at the head or a branch office of a trade union if it has been sent by post properly addressed to that office.
§ (2) All contributions to the political fund of a trade union from members of the trade union who are liable to contribute to that fund shall be levied and made separately from any contributions to the other funds of the trade union and no assets of the trade union, other than the amount raised by such a separate levy as aforesaid, shall be carried to that fund, and no assets of a trade union other than those forming part of the political fund shall be directly or indirectly applied or charged in furtherance of any political object to which Section three of the Trade Union Act, 1913, applies; and any charge in contravention of this subsection shall be void.
§ (3) All rules of a trade union made and approved in accordance with the requirements of Section three of the Trade Union Act, 1913, shall be amended so as to conform to the requirements of this Act, and as so amended shall be approved by the Registrar of Friendly Societies (in this Act referred to as "the Registrar") within six months after the commencement of this Act or within such further time as the Registrar may in special circumstances allow, and if the rules of any trade union are not so amended and approved as aforesaid they shall be deemed not to comply with the requirements of die said section.498
§ (4) Notwithstanding anything in this Act, until the thirty-first day of December, nineteen hundred and twenty-seven, it shall be lawful to require any member of a trade union to contribute to the political tend of the trade union as if this Act had not been passed.
§ (5) If the Registrar is satisfied, and certifies, that rules for the purpose of complying with the provisions of this section, or for the purposes of the Trade Union Act, 1913, as amended by this Act, which require approval by the Registrar have been approved by the majority of the members of a trade union voting for the purpose, by the executive or other governing body of such a trade union, or by a majority of delegates of such a trade union voting at a meeting called for the purpose, the Registrar may approve those rules and those rules shall thereupon have effect as rules of the union notwithstanding that the provisions of the rules of the union as to the alteration of rules or the malting of new rules have not been complied with.
§ (6) Section sixteen of the Trade Union Act, 1871 (which provides for the transmission to the Registrar of annual returns by registered trade unions), shall apply to every unregistered trade union so far as respects the receipts, funds, effects, expenditure, assets and liabilities of the political fund thereof.
LORD ARNOLD moved to leave out subsection (1). The noble Lord said: In moving this Amendment I wish to state certain considerations which I think should have weight in regard to what is known as the political levy. I should like first to refer to an observation of the noble Marquess, the Leader of the House, on the Second Reading. He addressed me across the floor of the House and said, in effect: "At any rate the noble Lord will agree that the Government had a mandate for this clause." I do not agree, and I pointed out to the noble Marquess that the Prime Minister himself had, in effect, intimated two years ago that the Government had no mandate for this clause. Your Lordships may remember that not very long after the Government came into office they were strongly pressed by a section of their supporters in another place to do what they are doing in this clause, and a debate took place on a certain Friday in which the Prime Minister intervened and declined to do that which he was being pressed to do by his supporters. In the course of his remarks he said:—
We find ourselves, after these two years in power, in possession of perhaps the greatest majority our Party has ever had. …. Now, how did we get here? It was not by promising to bring this Bill in;"—
that is a Bill relating to the political levy.
it was because, rightly or wrongly, we succeeded in creating an impression throughout the country that we stood for stable government and for peace in the country between all classes of the community.
I think that this disposes of the question of a mandate.
§ I should also like to call attention to the fact, which is very relevant to this clause, that in the outline of legislation dealing with trade unions that was given in the King's Speech at the beginning of this Session there was no mention, unless my memory deceives me, of any intention to deal with this matter of the political levy. Moreover, I think I am right in saying that when the noble and learned Viscount, the Lord Chancellor, last July, in reply to the noble Lord, Lord Banbury of Southam, adumbrated what the Government was likely to do, he did not mention the political levy. I am not quite sure about that, but I think it certainly was not in the King's Speech.
§ THE LORD CHANCELLOR
I do not think that on that occasion I adumbrated what the Government were going to do. I said that they were going to make some proposals, but I do not think that I gave any details.
§ LORD ARNOLD
I have read very carefully what the noble and learned Viscount said, and I think, if I may say so with respect, that he did adumbrate—after all the word does not go very far; and I am indebted for it to the noble Earl, Lord Balfour, whom I heard use it when I was a young man—some proposals, and I think that his statement occupies about a column and a half and is a fairly definite statement as to the subjects that the Government thought would have to be dealt with, if and when they came to deal with the matter at all. There is a further point which I think is important. This clause dealing with the political levy has really nothing whatever to do with the alleged object of the Bill, which, as we were told, was to deal with the so-called General Strike. The political levy has nothing to do with that. The position with regard to the political levy has not changed since 1925, when the Prime Minister declined to deal with the matter. It is just, the same to-day as it was then, 500 and therefore the Government cannot bring forward any new case to justify their present proposal.
I think that the way in which the unions are restricted and hedged about in regard to the political levy is not quite so well known as it should be. Your Lordships will be aware that, before any levy can be made in a union for political purposes, a ballot has to be taken and a majority has to be obtained sanctioning the setting up of a political fund. That is the first step, and it is democratic enough. So far as I know, that legal provision does not apply to any other organisation of men that uses money for political purposes. In the second place, those members who do not wish to contribute to the political fund can contract out by filling up a simple form. It is important to emphasise that that process of contracting out has only to be done once, and not every year, and then the man is clear for all time. Thirdly, rules must be enforced safeguarding members who do contract out from any form of victimisation. That again is a very important provision. Your Lordships will therefore see that under the Act of 1913, the law went a very long way in legislating about this matter for the unions. I hold that the position is fully safeguarded, more particularly as the levy is a very small matter financially. I believe that, taking the unions as a whole, the amount contributed comes to about 1s per head a year.
It may be said that that does not matter if there is a principle at stake but there is no principle at stake in view of these provisions. A great many men do claim exemption. There are larger numbers claiming it than is commonly known. Let me take one case, which is rather a good example for my purpose. In the Boiler makers, Iron and Steel Shipbuilders' Union there are nearly 30,000 men out of a membership of 80,000 who have claimed exemption and do not pay the levy. It is sometimes asked: How is it that the number of men who are exempt is often less than the number of men who, when the ballot was first taken, voted against it? It is suggested that that is a very difficult matter to explain. I do not think so at all. In the first place, in most cases the original ballot took place a long time ago. Since then a large number of members of the union 501 have joined the Labour Party. As your Lordships know, there has been a big influx of workers into the Labour Party. There are other reasons, too, into which I need not go. It is always open to have a second ballot and, when that has taken place, it has not, speaking broadly, shown that there is any real case for a second ballot.
I again emphasise that the levy is not compulsory, but so much of the activities of the unions as regards legislation have to do with the industrial welfare of the workers that a case can be made out—I am not making it out myself although I could do so—for a compulsory levy. The amount is very small. The Attorney-General, in another place, admitted that there was a certain amount of justice in the claim that some of the general funds of a union should be spent in connection with legislation and general governmental activities. That admission shows there is a border line, because there are certain Acts of Parliament which are not really political but are concerned with the industrial welfare of the unions. Looking at the matter like that, there is a strong case to be made out for some contribution from general funds. All the workers benefit from these activities whether they pay the levy or not.
The alleged reason for this clause, according to the Lord Chancellor in his speech last week, is that there is victimisation and that men are afraid to contract out. So far as that goes, the number of complaints which have come through the Registrar-General—and that is the machinerv—is infinitesimal and really can be practically ruled out. So far as that is concerned, there is no need for the clause. But what does this clause do? It puts forward a change from contracting out to contracting in. If there is victimisation, that will not stop it. That is my complaint with the whole of this Bill, that many of its clauses will not carry out their object. It is an extraordinary thing to lay down that men must conform to a certain procedure in finding money for political purposes. There ought not to be any law necessary for that. Surely any body of men, if they want to subscribe, should be allowed to do it in their own way without having to fill up the form in the Schedule of this Bill? This clause will cause a tremendous 502 amount of inconvenience and expense, which is most unfair to the unions. There is a certain union in Lancashire where only 16 men desire exemption out of 6,000 members. At the present time those 16 men, having notified their exemption once by filling up a form, have got it once and for all. Now, in order to satisfy something, which is not very clear, in regard to these 16 men, the remaining 5,984 men will have to sign a form.
§ LORD ARNOLD
Yes, but it is an expense to the unions, and I do not see why it should be done when no real case has been made out. I could adduce instances of other organisations which do raise money for political purposes and subscribe to political objects. They are not put to all this inconvenience. Some limited companies subscribe to political Parties and political objects. They do not have a ballot of their shareholders. The noble and learned Viscount may take that from me as absolutely correct. Certain other bodies subscribe to political objects without any ballot at all. Take organisations like the Federation of British Industries. The noble Marquess who leads the House said he objected to the growing power and to the almost coercion exercised upon Governments by outside bodies. When he said that the first thing that sprang to my mind was the influence of the Federation of British industries on this Government. It is well known that it has very great influence indeed. They can subscribe to political purposes and objects without a ballot of their members.
One of the strongest objections to this clause is that, if this first subsection, the main part of the clause, is allowed to remain in, you are making a departure in this Bill in respect of its legislation because you are, through this clause, interfering with the internal affairs of the unions and in a way that has not been done before. A great deal of this Bill will be injurious to unions, but it does not interfere in their internal affairs in the same way as this clause. That point was made in another place by an influential supporter of the Government, who objected to the clause on that ground. I said something about this clause on Second Reading, and I do say 503 that there is a very strong feeling in the Labour Party that it is not a right thing to do; that it is, I use the word again, a "mean" clause, a clause which is imposing upon the unions something for which there is no real case made out; that it is done to cripple them to some extent, and to put them to great trouble and inconvenience.
Having regard to the way in which other political Parties get their funds the Labour Party consider that this is a very unfortunate disparity in treatment. I know there are some people who do not altogether agree with the political levy, but yet share the view that this is a mean thing to do, to try to cripple Labour in this way, having regard to the great disadvantages under which the Labour Party suffers, as compared with other Parties. It has practically no Press, most of its work has to be done voluntarily, and about three-fourths of the Labour candidates do not receive trade union support. The noble and learned Viscount may say that if that is so then the matter is not so serious, but that in my view is not a fair criticism. It is a serious matter, and we do not know what the future may have in store for us in regard to it. You are, by this clause, doing something which will make it much more difficult for Labour men to go to another place—men who have earned great respect and done good work for the men whom they represent. I will not say more and I beg to move my Amendment.
Page 4, line 41, leave out subsection (1).—(Lord Arnold.)
§ THE MARQUESS OF LONDONDERRY
I think that the noble Lord who has just spoken somewhat misses the point, of the political levy. I am sure he has no desire to compel men to pay a political levy towards the funds of a Party with which they do not agree. He tells us that he thinks the number of complaints is infinitesimal, and he says that he knows of sixteen men in a union of 6,000. I wonder whether he realises that these are only sixteen men who have the courage to say so, and that there may be many others who object. I would like to read a letter sent by Mr. W. P. Richardson, the miners' agent, now secretary of the 504 Durham Miners' Association, in answer to a request for exemption forms:—Dear Sir,—In answer to your letter we cannot supply political exemption forms to any branch of the society. Every man must make a personal application through your lodge, giving his full name and address and the reasons for desiring to obtain exemption. This matter will then be considered and a decision arrived at.I venture to point out, therefore, that these exemption forms in a great many cases are not so easy to get, and that members of a trade union, who know the tyranny and persecution to which they may be subjected, obviously will not take any extra steps for the purpose of claiming their right.
I venture also to point out to the noble Lord that by reason of the fact that a large number of trade unionists voted for the Conservative Party that Party is now in power, and I think he will agree with me that not one of those who voted for the Conservative candidate would be willing to pay a political levy towards the funds of a Party to which he did not belong. Therefore, when the noble Lord brushes the matter on one side as an infinitesimal matter, I suggest that there are a great many more trade unionists unwilling to subscribe who dare not claim an exemption form, owing in a great many cases to the difficulties put in their way and owing, in a great many more instances, to fear of the persecution to which they would be liable.
§ VISCOUNT HALDANE
I am not very much impressed by what the noble Marquess has said about the difficulty of getting the exemption form from the trade unions, because there is no necessity to get any exemption form. Under the Act of 1913, by Section 5, any man can claim to be exempted, and if he wants to know how to express himself he is given in a very short and convenient form all that it is necessary to write on a piece of paper and send to the secretary. There is no complication about this. Any one who knows his rights has it in his power to keep out, but if the clause we are now discussing passes, the situation will be very different. A trade union has a variety of objects which are defined as political under the Act of 1913, including the expenses incurred in promoting the candidature of Members of Parliament, and various other expenses incidental 505 thereto. It has hitherto been the policy of a trade union to express its views, and, so far as money is required for that, to have a contribution from its members for the purpose. Since 1913 it has been open to any member to say that he will not contribute.
Now, what are you going to do? It is necessary for the trade unions to raise these funds. It is necessary for them to have contributions. You are going to make it almost impossible for the trade unions to get contributions except from a few persons. You are inverting in this clause the existing state of things. In stead of the man who wishes to join a trade union having to contribute unless he contracts out, you are now saying: Oh, no, nobody, however much he may agree otherwise to join a trade union, shall be liable to contribute, unless within Clause 4 he hasdelivered at the head or some branch office of the trade union notice in writing in the form set out in the First Schedule to this Act of his willingness to contribute to that fund and has not withdrawn the notice in manner hereinafter provided; and every member of a trade union who has not delivered such a notice as aforesaid, or who, having delivered such a notice, has withdrawn it in manner hereinafter provided, shall be deemed for the purposes of the Trade Union Act, 1913, to be a member who is exempt from the obligation to contribute to the political fund of the union.We hear great complaints about the lawyers and about their technicalities. If any one will look at the First Schedule to this Bill, and the form of notice given there, he will find a document which is enough to raise the hair on the heads of those who object to technicalities. Suppose I am a member of a trade union, and suppose I am willing to contribute. I cannot be called upon to contribute, I come under no liability at all to help the trade union which I wish to help, unless I give notice in this form. First, there must be put at the head of the notice the name of the trade union, and then the name of the member's branch (if any). I do not know what the average member of a trade union is like, but if he is like myself he will never remember the name of his branch or his membership number. Then he has got to say this in writing:—I HEREBY give notice that I am willing and agree, to contribute to the Political Fund of the Union and I 506 understand that I shall, in consequence, be liable to contribute to that Fund and shall continue to be so liable unless I deliver at the head office, or some branch office, of the Union a written notice of withdrawal: I also understand that after delivering such a notice of withdrawal I shall still continue to be liable to contribute to the political fund until the next following first day of January.That is really pedantry gone mad.
Why should it be possible to make yourself liable only if you give notice in this very extended form. Who it was that drafted it I cannot conceive. And, as if you had not irritated the trade unions enough by this, the Bill goes on to say that the Registrar is to see that rules are made giving effect to all this mass of words. And the Registrar is to register the changed rules, notwithstanding that they have not been passed in the ordinary way in which the trade unions pass their rules, but by a majority at a meeting casually got up for the purpose. It may or may not be true that not a great deal of interest has been taken as yet in the procedure under this Bill, but when the trade unions are called together, and when people are called upon to write out documents which are longer than their solicitors, if they had solicitors, would require for the purpose of making their wills, then I think you will hear of it all over the country.
§ THE LORD CHANCELLOR
The Amendment is, of course, of importance, because the proposal is to leave out the important subsection of Clause 4. I am surprised that the noble Lord, Lord Arnold, should refer to the Prime Minister's action in advising the withdrawal of the Macquisten Bill, and suggest that that is a reason against this clause. The Prime Minister, we all know, took that course, not because he disagreed in principle with the Bill, but in order, if possible, to secure industrial peace. He made that offer in the interests of peace, and the answer to it was the General Strike. After that answer what could we suppose except that the offer-to attain peace was rejected, and that we must now take some steps to prevent the repetition of that strike and of the evils which have been shown in practice to obtain?
The noble and learned Viscount opposite has referred very briefly to the question 507 of what are political objects. Let me expand that, and see what it is that men are asked to subscribe to. The payment of expenses of a candidate or prospective candidate for Parliament or any public office; the holding of meetings, the distribution of literature in, support of any such candidate or prospective candidate; the maintenance of a Member of Parliament or of the holder of a public office; registration of electors; the holding of political meetings and distribution of political literature or political documents, and so on. Surely, those are all on the face of them just purely Party political work. They are nothing else. And we all know that the funds in question are used to do that work for one particular political Party. So long as that is so, surely we must take the utmost care to secure that contribution to those funds is really a voluntary contribution. The noble Lord, Lord Arnold, takes a view, which I have never yet heard put forward. He says he can make a case for compulsory contribution by every member of a trade union to the funds of one political Party. That is an astonishing proposal.
§ LORD ARNOLD
The noble and learned Viscount has rather misunderstood me. I said that a case could be made out, having regard to the fact that the activities of the unions were in so many ways not really for political, but for industrial purposes. I distinctly said that I did not make out such a case, but that it could be done.
§ THE LORD CHANCELLOR
At all events it is clear that the noble Lord cannot do it, and really his answer is meaningless, because these funds are confined to political objects, and cannot be applied for industrial purposes. They-are clearly so limited by the Act of 1913. Therefore we must take care that contribution is really voluntary. I agree there is a right in the existing Act to claim exemption, but the figures of exemptions claimed are somewhat strange. They are, as the noble Lord himself said, in some cases far below the number of those who voted in the ballot against having any political fund at all. Therefore, there must be something which prevents the man who is willing to vote by ballot against having the fund from afterwards claiming exemption from contribution 508 to it. Further, there are unions where no single man has claimed exemption, and the average, throughout the registered unions, of exemptions claimed is about three per cent. of the members. I cannot believe that there is any union where every member is a member of the Labour Party, and I believe it is not a true representation of the facts to say that only three per cent. on the average are members of other Parties. The inference to me is irresistible that by some means members of the Conservative and Liberal Parties are coerced, compelled, or persuaded by some kind of pressure, to contribute indirectly to the funds of the Labour Party.
That is, of course, the basis of the inquiry, and the question follows, how is that done? Well, we are not without knowledge or without information. I have many times made it my duty to see members of trade unions personally, to talk it over with them, and hear what they say about it, and I am convinced that unfair practices go on. I do not want to be misunderstood. In many of the great unions care is taken to see that claimants for exemption get it. In such unions, for instance, as the National Union of Railwaymen and the great Amalgamated Society of Engineers, I have no doubt that care is taken that claimants for exemption are fairly treated, that they get their forms, and, when they claim exemption, they are exempted from contribution. But it is in other unions, especially the smaller unions, that oppression occurs, and I am satisfied that it is true that personal threats are used to prevent a man from claiming exemption or to withdraw his claim, that in such cases lists of men claiming exemption are put up at the headquarters of the union or of the branch, obviously in order that the other men may see who are claiming exemption, and may take what may be considered the appropriate steps.
Further, I am sure there are many cases where men who have claimed exemption do not get it, that is to say, the total levy is made upon them all the same, without distinguishing how much of it is political, and how much of it nonpolitical. I know, of course, that that may by law now be done, but that particular law ought to be altered. And in this and other ways the system of claiming 509 exemption has failed to work fairly to the men. I relied in the debate on the Second Reading upon statements made by Dr. Shadwell, who has taken immense pains to look into this matter. I said at the time that the facts which Dr. Shad-well had reported were, to me at all events, arguments in favour of this proposal. The noble Lord, Lord Gorell, said afterwards that I had indicated that the opinion of Dr. Shadwell was in favour of the proposal. I did not say so, nor did I intend that to be understood. But that particular distinction has become immaterial, because I saw a letter from Dr. Shadwell in the public Press the other day, in which he said that whereas it was true that originally his opinion was rather against our proposals he had been so much impressed by the facts and arguments brought to his notice that now he was disposed to think that there was much to be said in favour of the view taken by the Government. Now I have Dr. Shadwell, not only as a witness of fact, but as a supporter of the course which we are taking. I doubt whether a higher authority could be cited.
It is said the change of method from contracting out to contracting in will make no difference. I believe it will. You will no longer have a body of men claiming exemption and marked down for exposure and special treatment. You will have a body of subscribers to the fund, it is quite true, but you will not have a body of persons who will be treated as pariahs or otherwise suffer undue pressure. My noble and learned friend Lord Haldane says the change will make it impossible to levy these funds. What an astonishing statement. All that is asked is that the men shall be given a form and that they shall say they are willing to subscribe. Why does that make it impossible for those who really wish to subscribe to give their subscriptions?
§ THE LORD CHANCELLOR
The noble Viscount says "such a form." Really is it not plain to everyone what will happen? The union will have a certain number of these forms and they will send one round to every man and those who desire to subscribe have only to fill in these details—the name of the member, the name of his union and the name of 510 his breach. If a man who desires to support the Labour Party is incapable of filling in those details I really do not think be ought to be called upon to subscribe to a political fund. I take a much higher view of the intelligence of members of trade unions, of whom I have the happiness to know a good many, than the noble and learned Viscount. The noble Lord (Lord Arnold) who is fond of epithets, says that there is something mean about the clause. We do not want to stop the Labour Party from having funds for the purposes of their political propaganda. But do they want to get those funds from members of other Parties? Is the epithet "mean" less applicable to that kind of thing than to other conduct of which noble Lords are too apt to complain? All we want to do is to protect the men from being forced against their will and against their principles to subscribe to the support of a political Party of which they are not members, for which they have no affection and to which, if they had a free hand, they would not desire to subscribe. I think that those reasons are sufficient to justify the retention of this clause.
§ LORD PARMOOR
I think one matter which has hardly been sufficiently explained is the history of this question. Of course it arose under what is known as the Osborne decision in which for the first time, after a long course of practice, it was held to be ultra vires—according to a rather narrow decision—on the part of railway trade unions to subscribe to political purposes. After that decision had been given the 1913 Act came in as a compromise agreed to by all parties. It was then said on behalf of the Conservative Party in another place that everyone had admitted that up to this particular decision the trade unions had been regarded as having this power of contributing to political funds and that there was no answer to the claim then being made that those contributions should be allowed. There were two questions. The trade unions were then claiming a general power of contributing to political purposes. Under the Osborne decision they could not have contributed to any political purpose at all, and the 1913 Act was a compromise, and a very fair compromise. It was thought that anyone who wished should be allowed the power of contracting out 511 and that entirely met the decision in the Osborne case, which was decided, not on any of the wide considerations that are now put forward, but on the narrow or technical ground that it was ultra vires on the part of a trade union to make these contributions.
Why is it that contracting in should be put in the place of contracting out? If the contracting out provisions are properly applied it seems to me—and it was so considered in 1913—that they afford a complete protection against victimisation. If you want anything further in the way of an amendment of the Act of 1913, by all means meet that difficulty if there is one. The Lord Chancellor has pointed out that the political fund objects in the 1913 Act cover a very wide sphere. And why not? Here you have funds collected for certain purposes and if it had been originally put as intra vires on the part of trade unions they would have had complete power to use their money if they liked to do so for political purposes. It is now put on a narrower basis—they are not to do it if they do not desire to do it. This seems to me a very important matter of principle because the intention is to cripple the political power which a trade union has at the present time. The Labour Party is a poor Party. Every other Party has its caucus which contributes to all the purposes that we find in the 1913 Act. They contribute to registration, political expenses, the holding of meetings and so on. Not a single purpose here is outside what is done by the ordinary caucus of the other political Parties who have sufficient funds to do it. The Labour Party is the poor Party. I should like the whole question of corruption in our political elections to be searched out. I think it is now from top to bottom a sort of Aegean stable.
Meantime I entirely support what the noble Lord, Lord Arnold, has said, that this is a victimisation not of individuals but of the trade unions themselves. After all, there is victimisation on both sides, although people think it is only on one side that there is victimisation. There is victimisation here of the trade unions contrary to the practice which has gone on uninterrupted until 1913 and which is now going on under the compromise that was then made. If that 512 compromise has been found to work unfairly—and there are two sides to that—it could be revised and reconsidered. I shall certainly support the noble Lord if he goes to a Division.
I did not intend to take part in the discussion on this clause, but the reference of the noble and learned Viscount to myself and what I said on the Second Reading makes it necessary, I think, that I should do so briefly. The noble and learned Viscount, in moving the Second Reading, referred particularly to the articles by Dr. Shadwell which appeared in The Times in January this year. He did not say that Dr. Shadwell had been in favour of this provision but it is even more important—what the noble and learned Viscount omitted to say—that Dr. Shadwell had condemned this provision radically. I will not pursue the Second Reading question, because that has passed, but the noble and learned Viscount has now said that he has observed that Dr. Shadwell has since that time changed his view. I feel bound to say that I cannot help feeling that the noble and learned Viscount has again not quoted Dr. Shadwell with quite that accuracy one would have liked.
He did not quote, but he gave a general impression of what he understood Dr. Shadwell had said. I remember the brief letter very clearly. Dr. Shadwell began by saying that he was still unable to reconcile himself on general principles to this provision of "contracting in." He then went on to say, as the noble and learned Viscount intimated, that he had modified his view somewhat on two grounds—one, that he was of opinion that the argument against this clause had been badly stated in another place; and the second, that he had found that this provision was not as unpopular as he had believed. But neither of those two qualifications in any way challenge the original pronouncement. The original pronouncement by Dr. Shadwell was that in his view this was an irrational provision. These two modifications do not make it any more rational. We have never had yet any answer to the question that was definitely asked in the article by Dr. Shadwell—namely, why should any one not only pay 513 but also state his willingness to pay? It would seem enough to pay. That in itself is a sign of willingness. May I put this illustration to your Lordships, one that will be familiar to you all? I suppose everyone of your Lordships here is a member of a club. Before you become a member of a club you see the rules of that club and when you join it is tantamount; to saying that you agree generally to these rules.
It is a voluntary act. If there is in your club a notification that by a majority of the club it has been decided that a subscription shall be made to a certain thing, but that if you are unwilling to do that you may say so, surely you would feel it very unreasonable afterwards if, having been one of the majority which made the decision to subscribe to that particular object, you should be put to the trouble of again saying so upon a form. That is the precise meaning now of this change and I cannot help feeling that it is, as it has been termed by an eminent authority, an irrational provision.
§ LORD OLIVIER
I do not want to add to what has been said except to call attention to what seems to me a very simple aspect of the question which has not been touched upon. The imposition of this obligation on a trade union will put upon the union, first of all, the expense of printing a large number of forms and of sending them out to the members to fill up. Then you put upon the members who want to contribute to the political levy the expense of posting or delivering or returning these forms. This is rather a mean and petty imposition of expense upon a majority, presumably, of the members of the trade union, because the noble and learned Viscount has told us (hat the percentage of men who claim exemption is on the average, I understood, only 3 per cent. That means not only that there is a considerable majority in favour of having a 514 political levy, but that obviously there must be a permanent majority of persons in the union in favour of paying the political levy. I think it would be admitted that the majority is in favour of paying.
Under this Bill you impose on all those persons the trouble, expense and annoyance of having to do a certain act rather than impose upon the minority the trouble and expense of doing that act. The reason is, says the noble and learned Viscount, that you expose that minority to hatred and contempt and so on, to some kind of disability. They are marked men. But the minority who do not subscribe will equally be marked men under the proposed system. I do say, as a mere matter of practical convenience, that you are, for the purpose of restricting as far as you can political funds, imposing upon the majority of the members of the trade unions trouble, expense and inconvenience for the benefit of a small minority. That is why we say it is a mean thing to do. It is a small, petty thing to impose such trouble for the sake of a small minority.
§ THE LORD CHANCELLOR
I do not want to dwell upon this small point, but I have now Dr. Shadwell's letter and I should like to read it to the House. He says:—Lord Gorell was quite right in what he said about my opinions on the political levy. I have never been able, on general grounds, to reconcile myself to 'contracting in.' But I am open to admit that the Government may be better advised. Since I wrote the articles which he quoted two things have impressed me deeply. One is the opposition to this clause offered by the Labour Party in the House of Commons, and the other its reception in the trade union world large. The first has struck me by the extreme feebleness of the case put up—I could argue it better myself—and the second by the absence of resentment against the amendment. I have taken some pains to get information on the subject and I gather that the change in the law is rather popular than otherwise with trade unionists.
I remember the letter very well and I think that, though not using the exact words of Dr. Shadwell—I had not his letter before me—I did not misrepresent him.
§ On Question, Whether subsection (1) shall stand part of the clause?
|Cave, V. (L. Chancellor.)||Falmouth, V.||Leigh, L.|
|FitzAlan of Derwent, V.||Lovat, L.|
|Salisbury, M. (L. Privy Seal.)||Hood, V.||Merrivale, L.|
|Hutchinson, V. (E. Donoughmore.)||Merthyr, L.|
|Mildmay of Flete, L.|
|Sutherland, D.||Knutsford, V.||Monk Bretton, L.|
|Wellington, D.||Peel, V.||Newton, L.|
|Bath, M.||Askwith, L.||Oriel, L. (V. Massereene.)|
|Exeter, M.||Brancepeth, L. (V. Boyne.)||Ponsonby, L. (E. Bessborough.)|
|Normanby, M.||Clanwilliam, L. (E. Clanwilliam.)|
|Ranfurly, L. (B. Ranfurly.)|
|Airlie, E.||Clinton, L.||Redesdale, L.|
|Bradford, E||Danesfort, L.||Saltersford, L. (B. Courtown.)|
|Clarendon, E.||de Mauley, L.|
|Cranbrook, K.||Desborough, L.||Saltoun, L.|
|Denbigh, E.||Digby, L.||Somerleyton, L.|
|Iveagh, E.||Dynevor, L.||Southampton, L.|
|Lucan, E. [Teller.]||Dunmore, L. (E. Dunmore.)||Stanley of Alderley, L. (L. Sheffield.)|
|Minto, E.||Ernle, L.|
|Onslow, E.||Erskine, L.||Strathcona and Mount Royal, L.|
|Plymouth, E. [Teller.]||Gage, L. (V. Gage.)|
|Powis, E.||Gisborough, L.||Suffield, L.|
|Sandwich, E.||Hampton, L.||Swansea, L.|
|Scarbrough, E.||Hardinge of Penshurst, L.||Templemore, L.|
|Selborne, E.||Harlech, L.||Wavertree, L.|
|Stanhope, E.||Howard of Glossop, L.||Wemyss, L. (E. Wemyss.)|
|Stradbroke, E.||Hunsdon of Hunsdon, L.||Wharton, L.|
|Vane, E. (M. Londonderry.)||Islington, L.||Wittenham, L.|
|Lawrence, L.||Wynford, L|
|Bertie of Thame, V.||Lawrence of Kingsgate, L.|
|De La Warr, E. [Teller.]||Arnold, L. [Teller.]||Parmoor, L.|
|Gorell, L.||Thomson, L.|
|Haldane, V.||Olivier, L.|
§ Resolved in the affirmative, and Amendment disagreed to accordingly.
LORD ASKWITH moved, after subsection (1), to insert as a new subsection:—
(2) 'Political objects,' in section three, subsection (3) of the Trade Union Act, 1913, shall include:—
§ The noble Lord said: I take it that Clause 4 means that members of a trade union who do not belong to the Labour Party should not be compelled to pay into a political fund with the purposes of which they do not agree, and that516
§ Their Lordships divided:—Contents, 79; Non-Contents, 7.
money which they have paid to a trade union for industrial and other purposes should not be used for political purposes. Such, at any rate, was the meaning of Section 3 of the Trade Union Act, 1913, to which this Bill is a successor. That section most specifically lays down that:—
The funds of a trade union shall not be applied, either directly or in conjunction with any other trade union, association, or body, or otherwise indirectly, in the furtherance of the political objects to which this section applies (without prejudice to the furtherance of any other political objects) ….
§ until certain conditions have been fulfilled, and a notification has to be sent of a desire for exemption.
The section goes on to say that the political objects to which it applies are certain matters that are most meticulously set forth. Among the political objects referred to are the payment of
expenses of candidates for election to Parliament:—
the holding of any meeting for the distribution of any literature or documents in support of any such candidate …. the maintenance of any person who is a Member of Parliament or holds a public office; …. the registration of electors or the selection of a candidate for Parliament or any public office; …. the holding of political meetings of any kind or …. the distribution of political literature or political documents of any kind, unless the main purpose of the meetings or of the distribution of the literature or documents is the furtherance of statutory objects within the meaning of this Act;
and the expression "public office" in this section means the office of member of any county council or county borough and everything else down to board of guardians and any public body with power to raise money.
§ Since the, passing of that Act a new method of dealing with political funds has arisen—namely, in the support of Labour colleges and institutions and in the support of Labour papers, mainly run for political purposes. It may be said that you would be interfering with education or with the spread of information by interfering in any way with these institutions and propaganda. The point is that, as the Act of 1913 laid down and as this Bill continues to lay down, money subscribed for industrial or benefit purposes to the trade unions should not be applied to political purposes which those who subscribe the money do not support. I find it has become the practice since 1913 to build up payments for this particular purpose. It occurs in such matters as payment either to these colleges or to papers. For instance, the Amalgamated Engineering Union subscribes £1,000 a year to the National Council of Labour Colleges; the Associated Society of Locomotive Engineers and Firemen pays the National Labour College £390; the Durham Miners' Association pays to the Central Labour College £161; the South Wales Miners' Federation pays £3,569; and the National Union of Distributive and Allied Workers pays £1,000. Many other unions do the same. I mention those particular unions because I have the returns, such as are sent in to the Registrar, with those facts in their accounts.
§ If you turn to newspapers a rather different method is followed. A certain 518 Labour paper, entirely devoted to supporting one Party, has had very large subventions or investments in it by the Miners' Federation. It might be said that that was an investment, but then the investment is one that is palpably not likely under any circumstances to pay a dividend and it is an investment of industrial money. All these investments I have read are not from the political fund at all, but from the industrial side. I am not saying they might not or should not be paid for out of the political fund, but it is not the political fund that is being taken. It comes out of the industrial fund. From the whole spirit and principle of these Bills, it is not reasonable that money, which has been subscribed by a person holding certain political views which are opposed to the political views of these papers and colleges, should be so used, when he has not subscribed for that purpose, without his will. Therefore, these particular purposes ought to be added to the purposes which can alone be supported by political funds in the 1913 Act.
Now it, is plain with regard to the papers that a very large number of the unions support the Labour paper. There was passed in 1922 the following resolution at the Trades Union Congress:—
That, in order to enable the Labour movement to acquire and run its own newspaper and any other publications considered necessary by the two National Committees, the annual affiliation fee be increased from 1d. to 3d. per member, such increased fee to be paid quarterly.
§ One may take it then that 2d. out of every 3d. of affiliation fees paid by the trade unions to the Trade Union Congress goes to support this paper. In 1926 there was a report of the Trade Union Congress General Council presented at Bournemouth which stated that the payments between July, 1925, and June, 1920, amounted to £16,000. The whole of that comes out of industrial money. These purposes ought to be put upon the political side and to be put as purposes that can only he paid for out of the political fund. It may be right that there should be this education and propaganda, but it ought to come out of the political fund and not out of the general fund.
Page 5, line 26, at end insert the said new subsection.—(Lord Askwith.)
§ THE LORD CHANCELLOR
The substantial purpose of this Amendment is to prevent the ordinary funds of trade unions being applied to such purposes as the support of Labour colleges or the printing and publishing of Labour papers. I think that is a pretty plain statement of what the noble Lord has in view. He has made a strong case in support of his view and there may be much to be said for it, but when the same Amendment was proposed in another place it was resisted by the Government upon grounds which I shall shortly state. First, it was pointed out that the form of the Amendment is extremely vague and would give rise to difficulty. It talks about institutions of which the main purpose is political. It talks about opinions of a partisan character. Words of that kind are rather difficult to give effect to and would be found almost unworkable in practice. Apart from the form of the Amendment, the Government are most unwilling to interfere with the use of trade union funds except on grounds and for purposes which have been clearly made good to them. They are satisfied that abuses have crept in with regard to contracting out of the political levy and they have attempted to meet those abuses by the subsection of this clause to which your Lordships have assented. They are not equally satisfied with regard to the complaints to which attention is now being called and it has not been part of their policy to deal with any other point relating to the political fund other than the question of contracting out. Therefore, while I fully acknowledge the force of what my noble friend has said, the Government would prefer not to go farther in this Bill, and I would ask him not to press his Amendment.
§ VISCOUNT HALDANE
I am very glad of the decision to which the Government, have come. One of the main purposes of this Amendment is to strike at the support of the Labour colleges which comes from the trade unions. No doubt, if the trade union support were withdrawn, some of the Labour colleges would collapse and with them a good deal of adult education. I have been engaged in adult education for the better part of my life. I have always been against any adult education that did not come from the Universities and through the Universities, 520 and therefore have never looked with favour upon colleges which were promoted by Labour organisations. At the same time they do reach people who cannot be reached otherwise, and all education given at a decently high level is good, and at some of these colleges teaching is given which is of a high order. Although I do not like partisan teaching, or teaching given for ulterior purposes, what I want is teaching. I want students to go and take teaching, and as the Amendment of the noble Lord would have cut out and destroyed, I believe, teaching which is given usefully although I think mistakenly, I am very glad of the decision of the Government to have nothing to do with the Amendment.
§ LORD ASKWITH
I thought the noble Viscount would say something of the kind, but he has entirely misapprehended what I was saying. He said that I wanted to stop education.
§ LORD ASKWITH
I do not think any one who knows my record on educational establishments would venture to say so. What I object to is sectional education being paid for by other sections who have nothing to do with it and absolutely disagree with it. It ought to come out of the proper political fund and not out of the industrial fund. That is my sole point. The Lord Chancellor said that there was not sufficient evidence that this is considered a grievance. I cannot produce the evidence at the moment, but I am informed that the feeling exists very strongly in South Wales and other parts of the country. In the circumstances I will withdraw my Amendment.
§ Amendment, by leave, withdrawn.
§ EARL DE LA WARR moved to leave out subsection (2). The noble Earl said: I will move this Amendment briefly, because I think its purpose is very clear. It is simply this, that we ask the Government to allow trade unions to run their affairs in the ways they think best. All unions have different methods of collecting their various funds, and there are a great number of unions that do collect some of their political funds in conjunction with other funds. I have a particular union in mind which receives certain regular contribution. [...] addition to that it receives certain[...] 521 contributions at the rate of 6d. per quarter. Twopence of that goes to incidental expenses, of meeting certain of what I might call bad debts, owing to some members being ill and getting into arrears with their contributions; twopence goes to pay for branch expenses, such as subscriptions to convalescent homes which they run, or assist in running, while the remaining twopence goes to political expenses. It is a great convenience to be able to collect that money as a round sum. The political fund is kept absolutely separate, and that is where it seems to me that this subsection (2) is really based on a misconception that the funds, as well as the methods of collection, are run in conjunction with each other.
Page 5, line 27, leave out subsection (2).—(Earl De La Warr.)
§ THE LORD CHANCELLOR
There are in substance two points dealt with in the subsection. One is to provide that all contributions to the political fund shall be levied and made separately from other contributions to other funds of the trade union. The Act of 1913 provides that contributions to the political fund may either be levied by a separate levy, or exemption may be given by relieving members who are exempt from payment of the whole or any part of any periodical contribution. Now what has happened is this, that in cases where the latter method is adopted the union has in certain cases failed to make a deduction in the case of those members who have claimed exemption, with the result that they have not recovered the money at the end of the year or have not realised what has been done and have lost the benefit of their claim of exemption. The Bill therefore proposes now to make it a universal rule that the levy shall be separately made.
The second point is this. The Act of 1913 is, I think, defective. It provides that where contributions to the political fund of the union are collected by a separate levy no moneys of the union other than those raised by separate levy shall be carried into the political fund, but where political contributions are not separately collected under the second part of the option to which I have referred there is nothing in the Act to prevent a carrying over from the industrial fund to the political fund, 522 and very large sums have been so transferred. It is an omission in the Act which I do not think well conducted unions would wish to continue, and we therefore provide that no assets of a trade union other than those forming part of the political fund shall be carried to that fund, or directly or indirectly applied or charged in furtherance of any political object to which Section 3 of the Act of 1913 applies. I think that a mere reading of the clause is almost enough to show its full justification.
§ On Question, Amendment negatived.
§ LORD ARNOLD
In view of the fact that we have recently had a Division on this clause I will not detain your Lordships by speaking upon it. It is an important clause, and I think a good deal could be said upon it, in controversion of the statement of the Government.
§ [The sitting was suspended at eight o'clock and resumed at half-past nine o'clock.]
§ Clause 5:
§ Regulations as to organisations of which, established civil servants may be members.
§ 5.—(1) Amongst the regulations as to the conditions of service in His Majesty's civil establishments there shall be included regulations prohibiting established civil servants from being members, delegates, or representatives of any organisation of which the primary object is to influence or affect the remuneration and conditions of employment of its members, unless the organisation is an organisation of which the membership is confined to persons employed by or under the Crown and is an organisation which complies with such provisions as may be contained in the regulations for securing that it is in all respects independent of, and not affiliated to any such organisation as aforesaid the membership of which is not confined to persons employed by or under the Crown or any federation comprising such organisations, that its objects do not include political objects, and that it is not associated directly or indirectly with any political party or organisation:
§ Provided that the regulations made in compliance with the provisions of this section shall not prevent—
- (a) any person who is at the commencement of this Act an established civil servant from remaining a member of any trade union or organisation not composed wholly or mainly of persons
523 employed by or under the Crown of which he had, at the commencement of this Act, been a member for more than six months if under the rules thereof there had on the fourth day of April, nineteen hundred and twenty-seven, accrued or begun to accrue to him a right to any future payment during incapacity, or by way of superannuation, or on the death of himself or his wife, or as provision for his children; or
- (b) any person employed at the commencement of this Act by or under the Crown who thereafter becomes an established civil servant from remaining, so long as he is not appointed to a position of supervision or management, a member of any trade union or organisation, not composed wholly or mainly of persons employed by or under the Crown, of which he is a member at the date when he so becomes an established civil servant, if under the rules thereof there has at that date accrued, or begun to accrue, to him a right to any future payment during incapacity, or by way of superannuation, or on the death of himself or his wife, or as provision for his children; or
- (c) a person who in addition to being an established civil servant is, apart from his service as such, also engaged in some other employment or occupation from being a member, delegate, or representative of any trade union or organisation, of which the primary object is to influence or affect the remuneration or conditions of employment of persons engaged in that employment or occupation.
§ (2) If any established civil servant knowingly contravenes any of the provisions of the said regulations he shall be disqualified for continuing to be a member of the Civil Service.
§ (3) In this section—
- (a) the expression "established civil servant" means a person serving in an established capacity in the permanent service of the Crown, and includes any person who, having been granted a certificate by the Civil Service Commissioners, is serving a probationary period preliminary to establishment; and
- (b) the expression "conditions of employment" means in relation to persons other than persons employed by or under the Crown the conditions of employment of persons employed under a contract of service.
LORD OLIVIER moved, in subsection (1), to substitute "may" for "shall" ["there shall be included regulations"] The noble Lord said: In arriving at Clause 5 we enter upon comparatively un-trodden ground and, I hope, upon an entirely unprejudiced atmosphere. I want to address myself to some general observations on this clause which really cover the whole of the Amendments which I
have put down. I want to engage the interest of the noble and learned Viscount rather perhaps in his judicial capacity as a constitutional lawyer than in his political capacity as the apologist for this Bill. The main principle on which my Amendments are founded is that you should not encroach upon the civil rights of any class of His Majesty's subjects unless you have substantial reasons for doing so, and that is what this clause does. In the first place the clause places upon His Majesty's Ministers a statutory duty. It says:—
Amongst the regulations as to the conditions of service in His Majesty's civil establishments there shall be included regulations prohibiting ….
certain things. This mandatory clause is a departure from the established practice and is also entirely unnecessary.
§ It is entirely unnecessary that Parliament should occupy itself by making statutory Regulations, or giving the force of statutory law to Regulations, about the Civil Service, because His Majesty's Ministers and His Majesty have practically absolute power to make what Regulations they like and the civil servant has no remedy except by petition of right. You may make all the Regulations which you propose to make under this Bill without the Bill at all; therefore substantially, the clause is quite unnecessary. And, secondly, I say that you should not encroach on the civil rights of any class of His Majesty's subjects unless you have a substantial reason for doing so. You have no substantial reason for passing this clause and it does encroach on the established civil rights of civil servants, because—as I have experienced throughout the whole of my career, and as I am sure your Lordships know—the whole principle by which the rights of civil servants are governed is that they are under the absolute orders of His Majesty or His Majesty's Ministers for all purposes connected with the duties of their office. They are under the obligation really of giving their whole time to the public service for the duties of their office, that is to say, so long as the duties of their office require them to give that service. But outside what is required from them for the duties of their office, they are not under any kind of disability or obligation which does not apply equally to every servant of His Majesty. Therefore, 525 when you propose to make special Regulations for the conduct of civil servants by law which do not apply to any other servants of His Majesty, as you do in this Bill, you are imposing upon the Civil Service some special disabilities which you have no particular reason to do.
§ We may very well hold that it is provided that civil servants should be restricted by Regulation from some of the ordinary proceedings which are open to other citizens. For instance, I quite agree that it is not desirable that civil servants should be allowed to take an active part in Party political organisations. That purpose is indicated in this section. I agree to that. But there are many activities in which civil servants can take part that have been regarded by Ministers as very questionable and in regard to which questions have been raised as to whether it was proper or not for a civil servant to take part. In all the cases that I have in my mind other than those which strictly affect the duties of their office it has been held that civil servants have a perfect right to do it. I have myself been in the position of a civil servant many of whose activities, on account of the particular social and economic views that I held and which have nothing to do with the duties of my office, were suspect to some of my official superiors. I remember on one particular occasion I attended a trade unionist and Socialist delegation of some 50 or 60 members at the Zurich Internationale. Some of my observations at that Congress were directed to the exclusion of anarchists from that Congress, those observations were reported in the public Press, and the matter was brought by some busybody to the notice of the noble Earl, the Lord President of the Council, who was then in official control of the Treasury.
§ LORD OLIVIER
It was in 1893. A statement in regard to it was made to me by my friend the present Lord Chalmers, who was subsequently Secretary to the Treasury. At that time Sir Reginald Welby, a very well established and an authoritative public servant, was Secretary of the Treasury. My friend the present Lord Chalmers informed me that the noble Earl, the Lord 526 President of the Council, had consulted Sir, Reginald Welby on account of the representations that had been made to him by some Parliamentary busybody. Sir Reginald Welby said: "Olivier is within his rights. It may not be prudent of him, having regard to his prospects, but he has done nothing which brings him within the established principles of what a civil servant may not do. On an economic or social question he may express his opinions publicly or associate himself with any trade union or any Socialist international in the expression of those opinions. They do not affect his duties as a member of the Colonial Office."
We had at one time a very great question as to whether Post Office servants ought to be allowed to form a trade union. When I was young in the service there was very much greater prejudice among the heals of Departments than there is now against civil servants being allowed to take part in trade union organisations, but so long as it did not interfere with the duties of their office it was laid down that Post Office servants have equally as much right as other citizens to combine for their own purposes as a trade union. It was allowed under Departmental Regulations that the Postal Workers' Union should be formed and it has become established as one of the trade unions of the country, subject to certain regulations in regard to the activities in which they may engage. For example, in regard to a postal strike they are under special regulations but as regards their taking part in a constitutional organisation for the improvement of their pay and their conditions, that, contrary to the very strong opinions of certain authoritative pundits, was a thing that had to be conceded. In accordance with the constitutional rights of His Majesty's citizens, it was held that there was no right to interfere with civil servants in this matter unless there was an official reason for doing so. Consequently Post Office servants and other civil servants were allowed to form a trade union. That, I agree, was a controversial point.
I myself do not think that, because a man is in the position of a civil servant, he is therefore to be regarded as exercising an objectionable monopoly on account of his position any more than 527 anybody in any sheltered industry should be regarded as exercising an objectionable monopoly. I should like to see a very much greater consolidation of organisation of all workers so that there might be more equitable distribution of wages and more equitable exercise of monopoly than there is now as between industrial trades. Certain men, owing to their sheltered situation, are in a position to hold up the community and get undue remuneration as compared with their fellow-workers, but until consolidation of organisation does go further, until you have industrial remuneration of all wage-earners organised by one great State organisation, until you have one great system of regulating the rates of paid servants throughout the country, it is unfair to pick out any particular class of workers, and especially civil servants, and say, as you say here, that they shall not be free to combine with any other organisation.
Therefore I say, in the first place, that you should revert to the ordinary constitutional way of doing these things from which you have departed, and say that His Majesty's Ministers "may." That means that they must have the sanction of Parliament for doing so. Then they can make what Regulations they like, subject to the very wholesome principle of elasticity in our Constitution, which ensures that if at any time Ministers make rules contrary to the wish of the country, contrary to the will of the Parliamentary voters of the country, those Ministers can be questioned in Parliament and either their action can be supported or an intimation can be given by Parliament that the Regulations should be reversed. That has always been the safeguard of the public against civil servants and of civil servants against the public hitherto. When we were discussing recently the constitution of this House we wanted that elasticity maintained, so that the power of the electors of this country might remain unimpaired and continuous in dealing with constitutional questions, or, as I desire in moving this Amendment, with the question of the discipline of the civil servant.
I shall deal with later Amendments as they arise, but I say that if you depart from the principle of leaving the regulation and government of civil servants 528 to responsible Ministers of the Crown, if you introduce the principle of Statute law and say that they are to be placed under statutory Regulations, then you must, as I shall propose by a later Amendment, give them the ordinary remedy which any other member of the public has. That is to say, if he is penalised by the interpretation of the Statute, he should have the right to go to the King's Courts for redress. That is a right which civil servants have not now got against Ministers. They can only go on the Attorney-General's fiat, and in the case of Civil servants I have never known treat permission given. The Minister has generally been in a sufficiently strong position to justify his action and to say that he has dealt properly with the man under the protection of the rules that Parliament has approved, and has dealt with him disciplinarily. It is not necessary to say as is said in this clause that the man is disqualified for the Public Service. He has committed a breach of the rules, is disciplined accordingly, and may be dismissed, but there is no question of disqualification. When I come to a later Amendment I shall say that the reference to disqualification is not a suitable way of dealing with the matter. If the Government does not accept this Amendment, as I think the Lord Chancellor very reasonably may, then I shall argue later on that we ought to give the man the remedy which any ordinary servant has against his master for tort in the Courts of seeking for an interpretation of the Statute law, because you have altered the character of his obligations towards the King. I beg to move.
Page 6, line 36, leave out ("shall") and insert ("may").—(Lord Olivier.)
§ THE LORD CHANCELLOR
The noble Lord, who was himself a distinguished civil servant, has given us an interesting account of the licence that was allowed to him a good many years ago to take part in what sounds very like a political discussion. He has also referred to the liberty allowed in his time, though think not by his own wish, to pos[...] servants. Those and other things has happened, and perhaps we reaped s[...], of the results of that licence last year It appeared quite plainly last year th[...] 529 so long as the established servants of the State, who occupy a privileged position and are a trusted class, were allowed to be members of associations which had a political tinge or political connections, there did emerge a conflict of loyalties between their duty to the State and what they conceived to be their duty to their associations; and although everyone admits that most of the civil servants solved that problem with no difficulty and held themselves bound to their employer, the State, some took a different view and their associations helped the General Strike. Some of them actually took part in the Strike. I need not quote eases, but in one instance, in a naval vietualling yard, no less than thirty established civil servants joined the General Strike, and we had instances even nearer home.
§ LORD OLIVIER
May I interrupt the noble and learned Viscount? They left their employment, did they?
§ THE LORD CHANCELLOR
I understand so. I think that everybody would feel that this kind of position cannot go on indefinitely. Now we want to make it clear that it is the will of Parliament that the members of this privileged class shall in future keep free from political entanglements. The two things are incompatible. Officials who are appointed to serve the State, that is, members of all Parties in the State, ought not to be in the position of adhering constantly to only one of those Parties. That has been recognised in the case of the holders of the greater offices who are prevented by an old and fully-observed tradition from taking any part in politics. We are not going as far as that in respect of the minor civil servants, but we say, if they choose to join an organisation, in defence of their interests as a class, it should be a Civil Service organisation, not established for political ends and not affiliated to a political body. That is the least under these conditions which I think Parliament would be content to do.
The noble Lord comments on the word "shall." I think that what this means is that Parliament would desire to lay down the general rule to which I have referred and which requires the severance to this extent of the civil servant from politics, but would leave the details of the Regulations to be made, as heretofore, 530 to the Treasury. So the principle would stand independently of the judgment or caprice of any individual Minister who, in the flux of Parties, might succeed to a particular post. The noble Lord has skated lightly over some of his major Amendments, but I would prefer to deal with them when they are actually moved. In concluding, I would only mention that already it appears from an announcement in the Press that the Union of Post Office Workers has recognised the position and, in view of the expected passing into law of this Bill, has closed its political fund as from June 30 and has given notice of disaffiliation of the union from the Trade Union Congress as from that date. No doubt it is acting wisely in so looking forward and safeguarding the interests of those of its members who are established civil servants. Its action shows that the proper course can be taken without difficulty and I do not feel any doubt that, when once this Bill is passed and its effect recognised, established civil servants of all classes will fully recognise the position and will act upon the declaration which I hope Parliament will make. I cannot accept the Amendment.
§ LORD ARNOLD
I would like to say two or three words arising out of the observations of the noble and learned Viscount. He cited the experiences of last year as justifying this clause. He did not attempt to elaborate that or to substantiate it and, as a matter of fact, the divided loyalty of which he speaks never came into operation at all. The unions of civil servants took no part whatever in the Strike. The Post Office Union, the biggest union, took a ballot some years ago as to whether powers should be given for a strike to be called on some occasion if it was wanted. It was turned down and they have no powers to call a strike. There has been no demand for this clause. There has been nothing in past experience to justify it. There has not been a strike in the Civil Service since the Post Office strike of 1890. The Government is therefore legislating on a matter on which no case whatever has been made out.
We all know how it is that they will not accept this Amendment. We all know how it is that they will not make it that the Regulations are permissive. It is for this reason, that if the Government 531 made the Regulations which they have the power to do now and then a Labour Government comes into office, the latter could reverse those Regulations and make different ones, and the Government wish to stop that. That is why this clause is being passed and why they will not accept this Amendment. That is really the secret of the whole business. There is nothing in the experience of the last year, or the experience of the last thirty years, to justify this clause and the noble and learned Viscount, with great respect, did not at all substantiate the position he has taken up.
§ THE CIVIL LORD OF THE ADMIRALTY (EARL STANHOPE)
I only rise to tell the noble Lord that he is entirely wrong in the statement he has made to the House. Last year, in the course of the General Strike, about thirty established men were called out at the naval victualling yard at Deptford, and seven or eight at the naval stores department at the same place, as well as a very large number of hired men who were not established civil servants. Of the established civil servants about thirty men from one department and seven or eight from the other department I have mentioned were called out by the branch of their union. That is not the first time it has happened. There was the case where a very few moulders were called out in one of the dockyards belonging to the naval service.
§ VISCOUNT HALDANE
It is obvious that very few were called out, and is it worth while, for the purpose of covering so small a point, to put forward a proposition which will be greatly disturbing to the sense of security which the established civil servant has? They have to work with others engaged in the like occupations and their desire is for solidarity with others of their class. You bring in proposals of this kind with the result that there is a sense of differential treatment and of unrest, the limit of which cannot easily be determined.
§ LORD OLIVIER
I do not think that the interlude which we have had as to the fact that thirty established civil servants did join in the General Strike, really affects the strength of the case which I put to the noble Viscount and which I put to constitutional and 532 legal experts on the other side. These thirty men were as absolutely disciplined and restrained by Departmental order, and I presume that you do not want any additional power. It is clear that those men in that position could be restrained and ought to have been restrained by the rules of their Department, and I think that they would have been very properly restrained by the rules of their Department. I do not dispute that.
§ LORD OLIVIER
Then if they could join in the General Strike contrary to the rules of their Department they could join in a General Strike contrary to the rules made under this Bill. The penalty is exactly the same—namely, they will be disqualified for the Civil Service. That is the highest penalty you can inflict, and you are altering the practice of the Constitution in dealing with the Civil Service. You are opening the door to special legislation in controlling the conditions of the Civil Service by Statute. Without a General Strike at all you might have postmen or others trying to strike, and you would control them by your existing powers. If they are not to be controlled by the existing powers they are not going to be controlled by the fact that you have placed them under a statutory disability. To substitute "may" for "shall" does not alter your powers in the slightest degree.
§ On Question, Amendment negatived.
LORD OLIVIER moved, in subsection (1), to leave out "is an organisation of which the membership is confined to persons employed by or under the Crown and." The noble Lord said: The clause states that civil servants are to be prohibited
from being members, delegates, or representatives of any organisation of which the primary object is to influence or affect the remuneration and conditions of employment of its members, unless the organisation is all organisation of which the membership is confined to persons employed by or under the Crown. …
§ That is making a special law for civil servants in regard to a matter in which at present they have the same rights as any other civilian has, and without any substantial or sufficient 533 reason. The fact that they are members of a trade union organisation is in itself a highly desirable thing, just as it is highly desirable that they should be members of a Whitley Council. All this principle of organisation, so long as the rights of the State are safeguarded by proper Regulations against its own civil servants, is only wholesome in the interests of the community, and no reason has been shown whatever why civil servants, so far as the duties of their office are not concerned, should be excluded from the ordinary privilege of association open to civilians.
Page 6, line 41, leave out from the first ("organisation") to ("is") in page 7, line 1.—(Lord Olivier.)
§ THE LORD CHANCELLOR
The proposal now made is to cut out the words of the clause which would require that the membership of these organisations to which established civil servants may belong is to be confined to persons employed by or under the Crown.
§ THE LORD CHANCELLOR
The whole membership of the organisation must be confined to persons employed by the Crown. Those persons have all the same interests, and they will all have the same character of obligation. Therefore they will fittingly be associated together and will consider their interests in the light of their obligations to the public. These civil servants are, I suppose, of little use to organisations outside, for their number is so small that they cannot greatly add to the strength of those organisations. They can only be of use if, in time of crisis, they are willing to side with those outside bodies, and so imperil the maintenance of the essential Government services. That is why we think it right that membership should be confined, as was done quite lately in the case of the police, to organisations consisting entirely of servants of the Crown.
§ LORD OLIVIER
But would not that exclude them from being members of the Trade Union Congress? Is not that an organisation?
§ On Question, Amendment negatived.534
§ LORD OLIVIER moved to leave out of subsection (1) the words "that it is in all respects independent of, and not affiliated to any such organisation as aforesaid the membership of which is not confined to persons employed by or under the Crown or any federation comprising such organisations." The noble Lord said: This raises a point which I brought out on the previous Amendment. The previous Amendment was not so wide in its effect as I feared it might be, but this clause does definitely prescribe that the postal servants' union or the Policemen's Union is, in all respects, to be independent of and not affiliated to any such organisation—that is to say, the Trade Union Congress—the membership of which is not confined to persons employed by or under the Crown or any federation comprising such organisations. Those are words which I think are most unnecessary and an unjustifiable encroachment upon the ordinary rights of civil servants. You have given them the right to belong to their own organisations, and why on earth should you divide them from the members of their class who are in precisely the same position as regards the purpose for which their organisation is formed? What is the justice of imposing upon civil servants a special disability by not permitting them to join in the ordinary trade union organisation to which all other members of their class are entitled to belong?
Page 7, line 3, leave out from ("securing") to ("that") in line 7.—(Lord Olivier.)
§ THE LORD CHANCELLOR
This is really the same point in another aspect. It is no use to say they are not to belong to a political body if you allow them to be affiliated to a political body. I have no further argument to oppose to the noble Lord's old argument.
§ LORD OLIVIER
I am referring to the Trade Union Congress. That is not a political body but an industrial body, and so far as the Trade Union Congress is an industrial body the noble and learned Viscount's argument does not seem to me to apply.
§ On Question, Amendment negatived.
§ LORD OLIVIER moved, in subsection (1), to leave out "political" ["political objects"] and, after "objects," to insert 535 "which are immediate issues of Parliamentary or Ministerial Party policy." The noble Lord said: The word "political" is a very great deal too wide. All sorts of matters are political. Recently, in your Lordships' House, you spent three days discussing the Bishop of Liverpool's Bill. Surely that is a political subject and if it were conceivable that a civil servants' association should affiliate itself to the United Kingdom Alliance that would be a contravention of this clause. I submit this Amendment with a view to limiting and defining the use of the word "political." Almost everything that comes into public discussion must surely be regarded as political. I would ask the noble and learned Viscount if he cannot accept these words, or other words that will make more definite the meaning that is to be attached to the word "political" in this connection.
§ We all desire that civil servants should not associate themselves with active Party political organisations for the promotion of the return to Parliament of any political Party, no matter which Party it may be. I want to confine the disabilities of public servants to what I think noble Lords on the other side of the House also wish to confine them. Noble Lords opposite, I am sure, do not wish that civil servants should be compelled to abstain altogether from any association with organisations that have political objects of a general kind. What they want is to divorce civil servants from Party politics so that they may be beyond suspicion with regard to their loyalty to the particular Minister who may be at the head of their Department. I submit that the terms of my Amendment safeguard the rights of civil servants in that way and I beg to move.
Page 7, line 8, leave out ("political"), and after ("objects") insert ("which are immediate issues of Parliamentary or Ministerial Party policy").—(Lord Olivier.)
§ THE LORD CHANCELLOR
I should be sorry to disappoint the noble Lord, but I do not think that I shall disappoint him if I do not accept this particular Amendment.
§ THE LORD CHANCELLOR
The clause proposes to prevent civil servants 536 belonging to an association if its objects include political objects. The noble Lord wants us to forbid them to belong to an association if its objects refer to immediate issues of Parliamentary [...]r Ministerial Party policy. I confess I do not know what is meant by "Parliamentary or Ministerial Party policy." I put that on one side. Really the thing is very simple. The objects of a union are established or set out on its formation, and they cannot be changed except by a somewhat elaborate process. It may be that when the union is formed they would be able to conjecture what are the immediate issues of Parliamentary or Ministerial Party policy, but they cannot tell what those issues will be a year ahead or the year after that. They would have to change their objects as the issues in Parliament varied from year to year. My noble friend behind me suggests that they would have to have a meeting to reconsider their objects after every King's Speech at the beginning of each Session. The thing is wholly impossible. They ought to keep out of all political issues, not only those which are immediately burning questions.
§ LORD OLIVIER
I do not think the noble and learned Viscount would go so far as to say they ought to keep out of all political issues. I am quite sure the most trusted and loyal members of the Civil Service do not keep themselves free from political opinion in the widest sense.
§ THE LORD CHANCELLOR
I do not mean as individuals, but they should not join a body which has political objects.
§ LORD OLIVIER
You mean they should not join the Labour Party or the Conservative organisation. That is quite right, but to say that they should not be interested in something that is a matter of politics, that they should not be associated, say, with the United Kingdom Temperance Alliance, I think is going too far.
§ LORD ARNOLD
I think it is important at this juncture to emphasise the fact that this will inevitably tend to make civil servants very much more political probably than they have been. Under this clause they will necessarily have to vote for the Labour Party and it will undoubtedly become a great political 537 question in the Civil Service. Therefore the effect of this legislation will be the very reverse of that which the Government say they are seeking to obtain.
§ On Question, Amendment negatived.
§ LORD OLIVIER moved, in subsection (1), to leave out "associated directly or indirectly with" and to insert "affiliated to or a branch or member of." The noble Lord said: I am continually seeking for definiteness, as we all are on this side, and I want to have more precisely described the character of the association which is forbidden. I beg to move this Amendment for that purpose.
Page 7, line 8, leave out from ("not") to ("any") in line 9, and insert ("affiliated to or a branch or member of").—(Lord Olivier.)
§ THE LORD CHANCELLOR
I am really sorry to trouble your Lordships with so many speeches. It is usually my duty to listen to your Lordships' speeches, and I am afraid I am taking my full revenge to-day. What the noble Lord wishes now is to leave out words which prevent a civil servants' organisation from being associated directly or indirectly with a political Party or organisation and to substitute words preventing the organisation being affiliated to a political Party or organisation. Well, affiliation is not the only way of becoming associated. A union may be associated with a Party not only by affiliation but by some other link, equally effective, which is not called affiliation. Our view is that there should be no association of any kind, direct or indirect, and therefore I cannot confine it to the one method described by the word "affiliation."
§ On Question, Amendment negatived.
EARL DE LA WARR had given Notice to add to subsection (1):
(d) a person who is an established civil servant from exercising any civic right in his individual capacity.
§ The noble Earl said: I think that the points raised in my Amendment have been covered by the noble Lord, Lord Olivier, and I do not propose to move.
LORD OLIVIER moved to leave out subsection (2). The noble Lord said: The subsection that I propose to omit
is superfluous and unnecessary. It runs:—
(2) If any established civil servant knowingly contravenes any of the provisions of the said regulations he shall be disqualified for continuing to be a member of the Civil Service.
§ If any civil servant disobeys any Regulation of his Minister he may now be dismissed if, in the judgment of the Minister, the offence is grave enough to justify dismissal. To provide that if he commits any kind of breach of this statutory obligation he is thereby disqualified seems to be much too wide, and also quite unnecessary. My noble friend Lord Thomson had given Notice of an Amendment which he did not move to add to the word "knowingly" in this subsection the words "and persistently." It may be very reasonable that a man who has committed a breach of rules without intention should have his actions taken into consideration by the head of his Department, who might reasonably caution him and tell him to abstain from such misconduct in the future. At the present time heads of Departments take such notice of behaviour on the part of their subordinates which, if persisted in, would be very grave offences and might entail dismissal, and they say: "I must request you to abstain entirely in future from this kind of action"; and then the matter is passed over. A man may be technically disqualified in the sense that the head of the Department has a right to dismiss him is he chooses and if it is just to do so, but that power is not added to by this subsection, and if therefore beg to move to omit it.
Page 8, lines 6 to 9, leave out subsection (2).—(Lord Olivier.)
§ VISCOUNT HALDANE
I agree with my noble friend that this subsection is much too severe. It would act prejudicially on recruiting for the Civil Service, which is not always too easy nowadays. You have full power to get rid of every civil servant who knowingly breaks the Regulations, and you can dismiss him. Why should you insert a clause saying that automatically he is to be "disqualified for continuing," whatever that means, to be a member of the Civil Service?
§ THE LORD CHANCELLOR
There is a great deal to be said for the view that 539 it is a good thing that civil servants should know exactly where they stand and what the consequences will be if they infringe a Statute or Regulation. But I feel some sympathy with what noble Lords have just said as to a permanent disqualification being a very severe penalty. I should certainly not wish to omit this subsection nor should I like to-day to agree to a modification. I am disposed, if I am allowed to think the matter over, to see if in any way I can meet the views of the noble Lords.
§ LORD OLIVIER
I am much obliged to the noble Viscount for the concession he has made. With regard to the suggestion that it is desirable that civil servants should know where they stand, within my public experience I have found that they know perfectly well where they stand and they know the Regulations of the Department. Putting them into an Act of Parliament does not add to their consciousness of them or make them respect them more.
§ EARL BUXTON
This point is somewhat of a real blot upon the discretion given to the Department upon the question of punishment. In any particular case there may be some good reason, such as good conduct, which may make the head of the Department desire not to inflict such a heavy penalty. I trust the Lord Chancellor will be able to put in something to give greater elasticity.
§ LORD DANESFORT
Perhaps he would consider putting in "should be liable to be disqualified" instead of "shall be disqualified." It seems to me rather a strong measure that, if a civil servant commits one breach, even knowingly, he should be disqualified for ever from the Civil Service.
§ Amendment, by leave, withdrawn
§ LORD THOMSON
The Amendment I desired to move in subsection (2) on the question of "may" instead of "shall" has already been dealt with and the point has been put much better than I could put it. I do not move.
LORD OLIVIER moved to insert at the end of subsection (2):—
Any established civil servant on whom any penalty is inflicted by a Minister for
breach of any regulation made under the provisions of this section, shall, if aggrieved, have a right of action by suit in the High Court.
§ The noble Lord said: My motive for moving this Amendment is that you have introduced a new principle of legislating for your civil servants by Statute law. If you do that and take them out of the discretion of the Crown and its Ministers, you ought to give them the remedy against His Majesty, which any civilian has, of obtaining a declaration whether they have been treated justly according to the law. At present they are only entitled to be treated according to His Majesty's pleasure. If you are going to introduce this new and totally unconstitutional principle, then you are bound to give them the same remedy as the rest of His Majesty's lieges of calling for a declaration by the Court as to whether they have been treated lawfully under the Statute Law.
Page 8, line 9, at end insert the said words.—(Lord Olivier.)
§ THE LORD CHANCELLOR
The proposal is that if an established civil servant suffers any penalty, whether by dismissal or otherwise, he shall have a right of action by suit in the High Court. A right of action for what? He has no contract. Damages? He cannot recover damages except for breach of contract, and as the noble Lord probably knows he has no contract with the Crown. That is the curious position of the Crown servant, and therefore he could not recover damages in whatever Court he may sue. The law will not help him. What the noble Lord really means is that in every case in which a civil servant is dismissed it shall be referred to the Courts to decide whether the dismissal shall stand or not. That is quite impossible. The right of the Crown to dismiss a Crown servant at will is a very old prerogative right which has continued for ages.
I think there are very few exceptions. His Majesty's Judges form an exception, because they can only be dismissed on an Address of both Houses of Parliament. The Comptroller and Auditor-General is another exception, for a reason which is obvious. I think there are few, if any, other exceptions. It appears to us that the authority of the Executive in dealing 541 with Crown servants must remain final, and that no Government can be expected to surrender to any outside authority the right of dealing as it thinks proper with the Crown servants. I have the utmost respect for the Courts of Justice, but I am all the more of opinion that this is not the sort of duty to be thrown upon them.
§ LORD OLIVIER
That is just the sort of argument which I put forward in my initial remarks. We have no right as civil servants against the King, because we have entered into His Majesty's service and he is master. But now you are placing us under a statutory obligation established by Parliament, and consequently whereas at present certain rights of action are sometimes granted on the fiat of the Attorney-General, for action against the Crown, in these circumstances, it is my contention that in all cases there should be a right of action. It may be difficult to put the matter constitutionally right, but I do not want a constitutional wrong to be done. I do not want the civil servant to be placed in the position of an ordinary person under Statute law, without giving him the rights which other persons have under Statute law.
§ On Question, Amendment negatived.
§ EARL DE LA WARR moved, in sub section (3) (a), before "capacity," to insert "administrative or executive." The noble Earl said: I think that the object of this Amendment is very clear. It is designed to limit the effect of this clause to the people who really should be affected by it. I think that probably most of us are agreed on the point that civil servants who are directly engaged in responsible administrative or executive positions should keep away from taking part in Party politics. The trouble is that at the present moment the number of these men is probably round about three or four thousand, and on the other hand there are about 320,000 civil servants.542
§ EARL DE LA WARR
I think the majority of them will be found to come under the definition of this clause. They are working in the docks in the capacity of ordinary workmen and in the Post Office, and it is extremely difficult, as well as unfair, to try and differentiate between them and, say, the railway workers. Moreover, while many might feel that some sort of action had to be taken sooner or later with regard to the particular class that I have mentioned, which, we all agree, should come under some such restriction as this, we have to remember that the Government here are acting on a most important point without having made any previous inquiry, and it is upon a point which they have admitted by their action really needs inquiry. There have been two Committees, the Macdonald and the Blanesburgh Committees, which have had the matter before them, in a cursory fashion, but they have both been unable to come to a satisfactory decision. I would therefore ask the noble and learned Viscount to reconsider his position on these points and endeavour if possible to meet me.
§ THE LORD CHANCELLOR
I am not quite sure whether I understand the definition of "administrative or executive" employment. They are rather vague words and I think their adoption would lead to difficulty. But, apart from that, I think this would take away the main benefit of the clause. If I understand the object of the noble Earl it is to confine the clause to those who hold the higher employments in the Civil Service, so leaving the whole mass if established civil servants exempt from the clause and free to join political organisations. That would completely nullify the purpose which we have in mind, which is that the whole established Civil Service, who have special privileges, should be put under special restriction. It does not apply, as the noble Earl seemed to hint, to the unestablished workers under Government, it is only the established staff.
§ LORD ARNOLD
It should be emphasised that the effect of this clause would be in the dockyards to drive a wedge in which would divide the men into two categories and into two different unions in the same dockyard, although there is not that difference in their occupations.
§ On Question, Amendment negatived.
§ Clause 5 agreed to.
§ Clause 6:
§ Provisions as to persons employed by local and other public authorities.
§ 6.—(1) It shall not be lawful for any local or other public authority to make it a condition of the employment or continuance in employment of any person that he shall or shall not be a member of a trade union, or to impose any condition upon persons employed by the authority whereby employees who are or who are not members of a trade union are liable to be placed in any respect either directly or indirectly under any disability or disadvantage as compared with other employees.
§ (2) It shall not be lawful far any local or other public authority to make it a condition of any contract made or proposed to be made with the authority, or of the consideration or acceptance of any tender in connection with such a contract, that any person to be employed by any party to the contract shall or shall not be a member of a trade union.
§ (3) Any condition imposed in contravention of this section shall be void.
(4) There shall be added to Section five of the Conspiracy and Protection of Property Act, 1875, the following provision, that is to say:—
If any person employed by a local or other public authority wilfully breaks a contract of service with that authority, knowing or having reasonable cause to believe that the probable consequence of his so doing, either alone or in combination with others, will be to hinder or prevent the discharge of the functions of the authority, he shall be liable, on summary conviction, to a fine not exceeding ten pounds or to imprisonment for a term not exceeding three months.
§ LORD GORELL moved to omit subsections (1), (2) and (3). The noble Lord said: I cannot help thinking that it has become fairly obvious as the discussions upon this Bill have proceeded, that advantage has been taken of the disturbance of last year to bring in many subjects connected with the trade unions for which there is no justification or demand. We have pointed out on various other clauses that it cannot be argued that there is any mandate for the various provisions of this Bill, and undoubtedly 544 that argument applies with regard to the first three subsections of Clause 6. Our arguments have not met with any response from the noble and learned Viscount in other respects and I can hardly hope, therefore, that they will in this instance. My objection to the first three subsections of Clause 6 is that they appear to me to be conceived in a spirit of antagonism to all recent development in local government. The whole tendency of recent times has been to entrust local legislatures with greater powers. In this particular respect the clause prohibits their power in a material degree and states that they may not make it a condition that their employees shall or shall not belong to trade unions.
§ That would seem eminently to be a matter which local or other public authorities should be allowed to decide for themselves and I cannot conceive anything more impracticable than legislation of this kind. There may be contracts which local authorities desire to see carried out. They have the power to make it a condition that those employed upon them shall, or in some cases shall not, be members of trade unions, but if these three subsections become law their liberty is entirely fettered. It seems to me that the three subsections are once again an attempt to go back to the entirely unregulated conditions of the past. They seem to me to strike directly at what I had imagined to be the generally accepted advantages of collective bargaining and I therefore hope that they will not prove acceptable to your Lordships. I am not at all clear as to what is meant by "a local or other public authority," but as I have another Amendment specifically dealing with that I will not detain your Lordships with any remarks upon it at this moment.
Page 8, leave out lines 23 to 40.—(Lord Gorell.)
§ THE LORD CHANCELLOR
The Minister of Health has been informed that some local authorities have made it a condition of employment that a man shall belong to a trade union, and some authorities have gone so far as to make an increase of wages or a bonus conditional upon their employees being members of a trade union. The point is—Is that kind of practice to be allowed to continue? I think 545 it is plain that it ought not. The meaning of "local authority" is, I think, perfectly well known. A local authority represents the local community as a whole whatever Party may be in a majority in the authority, and therefore it ought not to take sides in controversial matters of this kind. Local authorities ought to perform their functions with economy and efficiency, and these should be their only considerations in selecting their staff. I may add that public confidence is completely destroyed in are authority if the impression is obtained, or the suspicion is held, that its powers are being exercised with a view to sectional interests. I can see no ground on which an authority can properly impose such a condition upon those whom they engage. As regards the second subsection, the meaning is this: An authority of this kind ought to be neutral in placing its contracts. It ought not to show favour to those who employ unionists against those who employ unionists and some non-unionists. Its duty is to get a good contract at a fair price and no other consideration ought to be allowed to prevail. The matter to me is so simple that I will not trouble the House further.
§ EARL DE LA WARR
The noble and learned Viscount has surely laid down a very strange doctrine. That local authorities may not deal with controversial points, surely that is a very strange doctrine? Noble lords may think it very amusing. I think it extremely serious. These bodies are put there by the community, and if the community disapprove of their actions there are elections every so often and it is very easy to turn the existing representatives out and put in new ones who will carry out the opposite policy.
§ On Question, Amendment negatived.
§ LORD GORELL moved, in subsection (1), to leave out "or other public." The noble lord said: I accept of course, as I am bound to do, your Lordships' decision that this subsection stand part of the clause. My second Amendment is to omit "or other public." I noticed that when replying to me the noble and learned Viscount omitted them also. He spoke throughout of "local authorities" and were that the phraseology of the Bill then there would be no need for me to 546 move this Amendment. The meaning at any rate would be perfectly plain. What the meaning of "or other public authority" may be I confess I am wholly at a loss to understand. There are many public bodies of many kinds and if these words are left in the clause would apply to any sort of public authority. I can hardly believe that that is the intention of the Government. It would apply, I should imagine, to the Port of London Authority. It might apply, so far as I know, to the British Broadcasting Corporation. The words seem to me to be very wide and would cover every public authority. If that is really meant, surely it is hardly necessary to have the words "local or other." The clause would then read quite simply "any public authority." I move the Amendment because the words are to me unintelligible and I hope some light may be thrown on the matter by the Lord Chancellor.
Page 8, line 23, leave out from ("local") to ("authority") in line 24.—(Lord Gorell.)
§ VISCOUNT HALDANE
On this principle the Government appear to have made up their mind, but I do think it is wrong that you should withhold from a public authority a right by which the private employer very often lays great store. For the stability of labour it is often essential that you should have a union to deal with, and a great many employers insist on employing only unionists. I have known them say that a union must be got up if there is none in order to preserve stability. Now you are going to put great difficulties in the way of local authorities in doing what you concede to the private employer.
§ THE LORD CHANCELLOR
I think the expression "local or public authority" has appeared in a certain number of Acts of Parliament without question. For instance, it appeared as early as the Workmen's Compensation Act, 1906, where the words are found in Section 13. It appears in the National Insurance Act, 1911, and in the Unemployment Insurance Act, 1920; and I am told that there has been no difficulty in construing the words. The noble Lord will observe that it is "local or other public authority" so the words "public authorities" have always been construed with reference to 547 the point that they are coupled with the word "local" and have been treated as being authorities with local powers but without the power which local authorities properly so called have of levying rates—such bodies as port or harbour authorities, bodies which have public functions although they have not the rate-levying power. I think that the rule ought to apply to those bodies which have statutory public powers as much as to the local authorities.
I am obliged to the noble and learned Viscount, but I confess that his explanation has left me more at sea as to the exact meaning of the words than I was before. Is it really the intention of the Government that this subsection should apply to all public authorities? If it is, the words "local or other" would seem to be unnecessary.
§ LORD DANESFORT
This is an important clause, putting restrictions on "local or other public authorities," and I suggest to the Lord Chancellor that it may be desirable, either to-morrow or before the Third Reading, to have some definition of what "other public authorities" are. The words "local authority" do not need definition, but it might be as well to define them at the same time. The other authorities, at any rate, should be defined in some way, and this is important on account of the serious restrictions that this clause imposes.
§ On Question, Amendment negatived.
§ LORD OLIVIER moved to leave out subsection (4). The noble Lord said: The words that I propose to omit are:—
"(4) There shall be added to section five of the Conspiracy and Protection of Property Act, 1875, the following provision, that is to say:—
'If any person employed by a local or other public authority wilfully breaks a contract of service with that authority, knowing or having reasonable cause to believe that the probable consequence of his so doing, either alone or in combination with others, will be to hinder or prevent the discharge of the functions of the authority, he shall be liable, on summary conviction, to a fine not exceeding ten pounds or to imprisonment for a term not exceeding three months.'
The offences under the Conspiracy and Protection of Property Act, 1875, to
which this subsection refers are thus defined:
Where any person wilfully and maliciously breaks a contract of service or of hiring, knowing, or having reasonable cause to believe, that the probable consequences of his so doing, either alone or in combination with others, will be to endanger human life, or cause serious bodily injury, or to expose valuable property, whether real or personal, to destruction or serious injury, he shall on conviction thereof …. be liable either to pay a penalty ….
§ and so on.
§ This is perfectly reasonable, but in this case we propose to add to the numerous criminal offences established by this Bill. We are getting very near to the ideal that we have seen put forward in a recent manifesto of the "corporative State"—that is to say, that anything contrary to the interests of any corporation approved by the State shall be regarded as a criminal offence. We are getting further away from what I should have thought the Conservative Party wished to maintain, the principles of English civil liberty. In this case people with weekly and monthly contracts of service who leave their employment on a lightning strike will in ordinary circumstances be liable to action for damages and to be mulcted in a week's or a fortnight's wages, or whatever it may be; and they might be liable also for any other damage caused by their action. But to make it a principle of our local government and of this very numerous and extensive class of public authorities that any charwoman who leaves the service of these people should be regarded as committing a criminal offence if the fact that she leaves her work will hinder or prevent the discharge of the functions of the authority is a very serious matter.
§ I appeal against the excessive nature of this departure from our ordinary established remedies against breaches of civil contract. It seems perfectly unjustified merely on the ground that the employer is a public authority. Their work is not going to be destroyed, no physical injury or damage to property is going to be done. Do let us have a little halt in this Gadarene motion of the Conservative Party towards abolishing all the liberties of our country, simply because the behaviour of certain workmen in the General Strike has alarmed them about their behaviour in future. Let us retain a little of our ordinary common sense 549 and ordinary practical nous in dealing with small breaches of contract that may arise. I beg that this subsection should not be proceeded with or at any rate that some cogent argument should be given to your Lordships for doing so.
Page 9, lines 1 to 14, leave out subsection (4).—(Lord Olivier.)
§ VISCOUNT HALDANE
I would like to point out the far-reaching changes in the law which this makes. By the law of England it is not a crime to break a contract. It is not even matter for conspiracy unless in special circumstances, and it is proposed by this to insert a proviso which goes far beyond Mr. Disraeli's Act of 1875 and to alter it. When Mr. Disraeli's Act was passed, or just before, there arose the case of the London gas stokers. They broke a contract and, because they did, the learned Judge who tried them at the Old Bailey said that, as the breach of the contract might endanger human comfort by cutting off the supply of gas, they had done something which could be said to be an act of conspiracy notwithstanding the provisions of the earlier Act of 1872. In consequence of that case, the Legislature, under Mr. Disraeli's guidance, altered the law and said that it should not be a criminal offence to break a contract in combination except in two cases—gas and water. In 1919 a third was added, the cutting off of the supply of electricity. But as the law stands, with the exception of these three cases there is no crime, so far as I am aware, in breaking a contract.
Now see what the clause proposes to do:—If any person employed by a local or other public authority wilfully breaks a contract of service with that authority, knowing or having reasonable cause to believe that the probable consequence of his so doing, either alone or in combination with others will be to hinder or prevent the discharge of the functions of the authority, he shall be liableas for a crime. If a hedger omits to hole a ditch on which he is employed he may be said to be hindering the functions of the local authority which employs him. There are an infinite number of cases in which very small people, employed in very insignificant employments, will come within the words of the clause, and I think it is very extraordinary 550 that the Conservative Government in the year 1927 should go back on the provisions of the Act of 1875 and propose to change the law by making criminal things which do not affect life or health, and which are not connected with the supply of gas, water or electricity, by scooping in every kind of petty employment which any man may have under a local authority. For these reasons I think my noble friend is well justified in moving his Amendment.
§ THE LORD CHANCELLOR
I am really anxious to give full consideration to what my noble and learned friend has just said. Of course I agree with his law, that speaking generally to break a contract is not punishable by fine or otherwise. Exceptions have been made in cases where a sudden, or what is called a "lightning," strike of public servants, who are engaged in supplying the essentials of life to the public on behalf of a local authority, occurs and may cause damage or injury to the community in respect possibly of their health, and their business, and something more.
§ THE LORD CHANCELLOR
The cases already dealt with by law are the cases of the supply of water and gas, and, under the amending Act, the supply of electricity. In those cases the principle is obvious. It is that to cut them off suddenly is a tremendous hindrance and indeed danger to the community. The purpose of the clause is to extend this principle to other cases falling within the same category—the cases where there occurs a sudden strike of local employees, who are under contract of service and break their contract, and where the effect of that strike will hinder or prevent the discharge of the functions of the authority. I could easily suggest cases in which that occurrence would be a danger to the public. Take the case of drainage. It is the case, I think, in many places, that drainage works have to be worked from day to day, and a sudden cessation of labour would flood the place and cause other injury to the inhabitants. Take the case of a local hospital, possibly a fever hospital. Take the case of a port or harbour, where a strike of employees 551 may in a few hours cause immense damage. That is the kind of case with which we want to deal.
We do not want to deal with the small people. I doubt whether, as to any of them, it could be said that their abstention from work would hinder the discharge of the functions of the authority. We do not want to deal with them and I am sure the charwomen may feel perfectly safe. But I am always reasonable—I hope I am not too reasonable—and whenever I hear a good argument I like to think it over. If noble Lords will allow me we will try between this and the next stage of the Bill to find words which without cutting out this clause—which I could not assent to—would confine it to eases where abstention from work might cause real danger and injury to the public.
§ VISCOUNT HALDANE
I am much obliged to the noble and learned Viscount for saying he will think it out. He always does what he says he will do. I take this opportunity of saying that, however much we have differed on this Bill, he has treated us with a courtesy and a consideration which we all appreciate.
§ LORD OLIVIER
After what the noble and learned Viscount has said I shall not proceed with the Amendment, but I should like to point out with regard to the effect of the stoppage of drainage surely that is already provided for by Section 5 of the Conspiracy and Protection of Property Act to which this subsection purports to be an addition. If the strike is likely to "cause serious bodily injury or to expose valuable property, whether real or personal, to … serious injury"—those words seem to me to cover such serious matters as drainage.
§ Amendment, by leave, withdrawn.
had given Notice to move, in subsection (4), to leave out "knowing or having reasonable cause to believe that the probable consequence of his so doing, either alone or in combination with others, will be to hinder or prevent" and insert "with the object of hindering or preventing." The noble Lord said: In view of the discussion which has taken place, I hope that in considering the subsection, which will now 552 come before your Lordships again, the noble and learned Viscount will also direct his mind to the change of words which my Amendment is designed to bring about. Their object is simply to clear up what I cannot help thinking are rather unusually vague words. My thought in that is strengthened by much that has been previously said, and sometimes by the noble and learned Viscount himself. He pointed out on other Amendments how difficult it was to probe into the mind of any person. Under the words of the subsection as they at present stand that is exactly what the Court would have to do.
Not under the Amendment, I submit, because there the Court would only have to decide what the actual object was. Under the wording the Court has to go into the fact of whether the accused knows or has "reasonable cause to believe that the probable consequence" of his breaking a contract will be to hinder the discharge of the functions of the authority. It is a whole sequence of things difficult to determine and therefore I would suggest in place of these indeterminate and difficult words the quite simple words—If anybody wilfully breaks a contract of service with that authority with the object of hindering or preventing ….I only just suggest that now in view of the Lord Chancellor's undertaking.
§ THE MARQUESS OF SALISBURY
I understand that the noble Earl, Lord Beauchamp, in whose name the next Amendment stands is anxious that it should not be taken to-night, and having regard to the fact that we have sat a very long time—and we are very grateful to your Lordships for the time you have given to the Bill—I think we might almost go to bed. I beg to move that the House do now resume.
§ Moved, That the House do now resume.—(The Marquess of Salisbury.)
§ On Question, Motion agreed to and House resumed accordingly.
§ House adjourned at five minutes past eleven o'clock.