§ House again in Committee (according to Order):
§ [The EARL OF DONOUGHMORE in the Chair.]
§ Clause 6 [Provisions as to persons employed by local and other public authorities]:
EARL BEAUCHAMP moved, at the end of the clause, to insert:—
Whenever any dispute exists between a person to whom the said provision would in the circumstances therein set forth apply and the local or other public authority by whom he is employed with reference to the remuneration or conditions of employment of such person, either of the parties to the dispute may make application to the Minister of Health for the reference of such dispute to a board of conciliation and investigation for their consideration and report, and the said Minister may thereupon refer the dispute to such board. The said Minister may make such rules as may be necessary relative to the constitution and procedure of such board for the purposes of this subsection.
§ The noble Earl said: I am much obliged to the noble Marquess the Leader of the House for giving me the opportunity to move this Amendment this afternoon. The noble and learned Viscount will see that it is in no sense contrary to the spirit of the Bill. It is 556 thoroughly consonant with Clause 6, but it does suggest that, in the event of difficulty between the employees of one of these local authorities and the local authority itself, there should be methods of conciliation in order to prevent a strike taking place. This does seem to me to be the best way of securing conciliation, and I am quite sure noble Lords on the opposite side of the House are no less anxious than I am that there should be methods of conciliation available in the event of a dispute of this kind. Whether the actual method which I propose is the best or not, I do not quite know, nor, frankly, do I quite care. If the noble Viscount is able to suggest some other means of conciliation I would very heartily agree with any other method which he thinks would be better than my own proposal. The proposal is a simple one, and I think it is unnecessary to detain your Lordships by further words.
Page 9, line 14, at end insert the said words.—(Earl Beauchamp.)
§ THE LORD CHANCELLOR (VISCOUNT CAVE)
I recognise entirely the spirit in which this Amendment is moved, and if I could make any suggestion that might assist the noble Earl to make the proposal practicable I would willingly do so, but I see so many difficulties in the matter. In the first place, I do not see how you can suggest conciliation, or arbitration, about what is going to be a criminal charge. This subsection creates a criminal offence. It would be the duty of the prosecution to prove their case, to prove the breach of contract and to prove the other things which are in the subsection, and I cannot see how you could treat it as a mere dispute between a local authority and the persons employed by that authority, or how you could refer any dispute of that kind to anybody at all. Apart from that, I gather that the noble Earl is only proposing conciliation and not arbitration. That is, he only proposes that the dispute, if there be a dispute, should be referred to some board for their consideration and report. If that is what he means there is already ample machinery for that purpose. I have discussed the matter with my right hon. 557 friend the Minister of Health, and he agrees with the view which I have formed that for that purpose the Industrial Courts Act of 1919 provides ample machinery for dealing with that type of ease, by means of industrial courts to which, with the consent of both sides, the Minister of Labour is enabled to refer a dispute. Where there is a disposition on both sides to refer such a dispute, it could be so referred under that Act.
But if the idea is that it should be referred at the wish of one party and without the consent of the other, then, of course, the proposal is directly opposed to the view which is taken in so many quarters—I think perhaps rather unfortunately—against any form of compulsory arbitration. If you seek to make it compulsory you would at once come across very strenuous opposition from members of the Party opposite in another place. So it appears to me that even if you could arbitrate about this hypothetical offence against the law which leads to prosecution—and I do not think you could—it would be undesirable to put in this Amendment, because either it is adequately provided for by existing legislation or the matter had better not be dealt with in this particular way. I hope, therefore, that the noble Earl, on reflection, will not press his Amendment.
§ EARL BEAUCHAMP
Of course, in view of what the noble and learned Viscount has said, I do not press my Amendment, and I will ask leave to withdraw it. I will certainly refer those who called my attention to the matter to the means of conciliation which apparently do exist, and if there are any difficulties I hope they will avail themselves of the facilities to which the noble Viscount has alluded.
§ Amendment, by leave, withdrawn.
§ LORD GORELL moved to leave out Clause 6. The noble Lord said: My Lords, in view of the discussion which took place upon the clause last night I desire only to say a very few words this afternoon upon my Amendment. The clause seems to me to do, in the main, two things. In the first place, it enacts that any public authority, local or other, that is to say every public authority of 558 any size or description and of any kind, shall be deprived of the liberty which every private employer possesses and without the exercise of which many employers have declared that it would be impossible satisfactorily to carry on their business. Secondly, in its fourth subsection, it enacts that any employee of any authority who breaks his contract may be liable to be sent to prison.
§ In view of the promise which was given by the noble and learned Viscount, all that I wish to do this afternoon is to direct his attention, in the reconsideration which he has courteously promised to give to this clause, to one form which may come under it—namely, an authority with which I myself have most to do, a local education authority. It would seem under this clause that a local education authority would no longer be able, even if it so desired, to use with regard to the teachers in its employ the well recognised machinery of working through such an organisation, for example, as the National Union of Teachers. Further, if any member of the teaching staff of that local education authority went out on strike and broke his contract, that member would be liable to be sent to prison. The teaching profession has a singularly honourable place in industrial disputes. I think I can say from my knowledge of them that in no circumstances, however much they were aggrieved, would they as a body come out on strike. They have too deep a sense of obligation to the children under their charge.
§ But there may be cases where individual teachers will do so, and I think it is quite obvious that any one who does will to that extent be interfering with the exercise of the functions of the authority and will therefore be liable to penalties under this clause. From the words that have fallen from the noble and learned Viscount it is perfectly evident that this clause is not intended to apply to such persons, and it is an illustration of the fact that this clause, while being designed to catch a sprat, is in fact drawn so widely that it will rope in all other classes. I have ventured specially to call the attention of the noble and learned Viscount to that illustration, and I hope that he will bear it in mind in the reconsideration of the clause that he has courteously promised to give.559
Leave out Clause 6.—(Lord Gorell.)
§ THE LORD CHANCELLOR
The noble Lord has been so moderate in the length of his speech that I am resolved to follow his example. We have argued the merits of this clause upon an earlier Amendment to the clause, and I will not repeat myself. It is true, of course, that this clause will deprive public authorities of the full liberty which a private employer has to refuse to employ men not belonging to a particular union. That is because they are public authorities and are subject to special responsibilities. As regards the position of persons employed by an education authority, I have taken careful note of what the noble Lord has said and I will consider his observations in connection with the other observations that have been made.
§ VISCOUNT HALDANE
I am glad that the noble and learned Viscount has made that observation, because the definition of a trade union in earlier Acts is, I think, rather wide and it may be that the National Union of Teachers comes within it. At any rate the point wants very carefully looking into.
§ On Question, Amendment negatived, and Clause 6 agreed to accordingly.
§ Clause 7:
§ Restraint of application of funds of trade unions, &c., in contravention of s. 1 of Act.
§ 7. Without prejudice to the right of any person having a sufficient interest in the relief sought to sue or apply for an injunction to restrain any application of the funds of a trade union in contravention of the provisions of this Act, an injunction restraining any application of the funds of a trade union in contravention of the provisions of Section one of this Act may be granted at the suit or upon the application of the Attorney-General.
§ In the application of this section to Scotland there shall be substituted therein for references to an injunction references to an interdict, and for the reference to the Attorney-General a reference to the Lord Advocate.
§ LORD ARNOLD
had given Notice to move, after "Act" when that word first appears to insert "a declaration or". The noble Lord said: In moving this 560 Amendment I should like to say a word or two at the outset on what is really a point of order. In my view an Amendment like this is the appropriate opportunity for a discussion on the clause as a whole. It is a matter of indifference to me whether I say what I wish to say on this Amendment or on the Amendment to omit the clause.
§ THE LORD PRIVY SEAL (THE MARQUESS OF SALISBURY)
It would be much more regular, if the noble Lord will allow me to say so, to discuss the whole clause on the question that the clause stand part of the Bill. Of course your Lordships are not bound very tightly by rules of order, but since the noble Lord actually appeals to a point of order, I think it is better that we should be to some extent bound by the rules of order.
§ LORD ARNOLD
It is really a matter of indifference to me, because I can move the Amendment to leave out Clause 7, standing in the name of my noble friend Lord Muir Mackenzie, who is not present this afternoon. But, if I may say so with great respect to the noble Marquess, as having had some considerable experience in another place, it is there a very frequent arrangement to have a general discussion on the first Amendment to a clause. It happens again and again, and I think it is a great convenience in many ways. If, however, the view of the noble Marquess is not in accord with that practice, I will not actually move my own Amendment, though I hope I may bring in what I should like to say about it on the Amendment to leave out the whole clause. This clause deals largely, though not entirely, with legal points, and therefore I speak upon it with much diffidence, but there are points of substance which seem to me to arise. There was only one debate on this clause in another place, owing to the "guillotine," and I think I am right in saying that it did not come up on Report. There are certain points as to which we should very much like to have some enlightenment.
If in what I have to say, owing to my lack of knowledge of legal technicalities, I give the noble and learned Viscount, the Lord Chancellor, some legal opening hope that he will not divert the issue—I do not think that he will—because we want to discuss this point seriously and 561 we want to know what it means. If our fears are groundless, none will be more pleased than ourselves, I am endeavouring to put the position fairly, and I am relying to some extent upon arguments which have been used and views that are held, not only by laymen but by some members, at any rate, of the legal profession. In our view this clause is a threat against the right to strike. The idea of an injunction in connection with trade disputes originated, I think I am right in saying, in the United States. The conditions here are not, of course, necessarily analogous to those which obtain there, nor is the Clayton Act in America quite the same as this clause, but looking at the matter as a whole, the analogy is not wholly inapplicable, and it has been found that in the United States this power to get an injunction in connection with trade disputes has proved a more effective weapon for breaking strikes than anything else that has yet been devised. I have extracts here from an article on this matter in The Times by their special correspondent, but I do not propose to read them though they are very interesting and illustrate, as it seems to me, the harsh working of the Act in America. With that evidence before us the trade unions of this country are naturally very apprehensive about anything of the kind being employed here.
Clause 7 has to be related all the time to Clause 1—I think that this is obvious—because it really deals with conditions under Clause 1, and the position is, in our view, all the more disturbing because Clause 1 will, as we now know, make illegal not only what is called a General Strike but nearly all sympathetic strikes and a large number of strikes in single industries. Accordingly the position is very different from what I think the country was led to expect when this Bill was first mooted, and, I would submit, very different also from what it was when the Attorney-General made his spech on the Second Reading and from the general understanding of the position at that time. On the Second Reading the Attorney-General spoke as if Clause 7 could be used only to get an injunction against what is called a General Strike—a great strike that was threatening the whole life of the community. That was the impression that he gave, but the position has been very much altered since 562 then, and Clause 7 will apply to all strikes which, in the view of the Government, come within the ambit of Clause 1. Accordingly we have to be very careful about Clause 7, because, in view of what we have been told and of what the noble and learned Viscount has said, it will apply to various strikes which might be, and would be, held to be illegal under Clause 1, and we now know that this injunction process might be used in connection with a large number of sympathetic strikes and of strikes in a single industry.
This is travelling a very long way from what was understood a short time ago. Let us look at the position as I see it. If I am wrong, perhaps the noble and learned Viscount when he comes to reply will explain precisely what the position is. A strike is threatened which appears to come, or may come, within the now very wide ambit of Clause 1. As I have said that includes a very large number of strikes. The Attorney-General goes to the Court and gets an injunction. This raises the point of the Amendment that I do not at present move, but I will say something about it. He could not do this before the strike has started. He could not get a declaration. That could only be done after the strike started. Obviously the chances are enormously in favour—I do not think there will be any dispute about this—of a man in the position of the Attorney-General when he goes to get an injunction, getting that injunction. I do not say that the Courts will be biased in favour of the Attorney-General. I am not saying that, although if I did suggest that it would be difficult for Judges in such matters to be wholly removed from bias, I could quote to support a view of that kind the present Chancellor of the Exchequer and also a well-known passage from the speech of the Attorney-General in the Government of 1906. No doubt those two speeches on the point are well known to your Lordships, and I will not read them, although I have them here. However, it will not be disputed, I think, that in the vast majority of cases the Attorney-General will get the injunction.
It might, however, be some time before the final decision on the legality or illegality of a threatened strike, or even of an actual strike, is given. Nevertheless, 563 once an injunction is granted the strike is really for practical purposes illegal, and in most cases its back would be broken from that moment. That is the point I want to put. I think that is so in spite of the fact that the final decision might in some cases be in favour of the strike. When all the evidence has been put before the Court, and the facts are known, it might be decided that the strike was legal. Surely, nothing could be more unsatisfactory than a position like that, if I am putting it correctly. I think I am correct in saying that costs never are given against the Crown and therefore, whether the union wins or loses, in the end it is put to heavy expense and it has no redress. I am pleased to see that the noble and learned Viscount is shaking his head, because I should be glad to have an assurance on that point.
By the time the final decision is given the whole strike weapon has been destroyed, but that, I think, is really putting the matter rather too favourably, because as I see it the Attorney-General goes to the Court in most cases in advance, before the strike has broken out. It was considered in another place whether the Bill gave the Attorney-General power to do that, and I gather that he assumed that it does give him that power. Supposing, to take a specific case, that the miners had been for some time threatening a strike for, say, a minimum wage. The Attorney-General may take a serious view of that, and he goes to the Court and he gets an injunction in advance. Say, for the sake of argument, he gets an injunction on Thursday. The Courts say: "You have made out a case in our view. You saw it is for a minimum wage, and in order to get legislation on the point of a minimum wage, and, that being so, under the words of the Bill we will give you the injunction." Suppose the strike had been timed to start on the following Monday. If this injunction has been granted in this way, and then no union funds can be used, it seems to me that the strike cannot proceed.
Its back is broken from the very start almost. The strike is stopped from going on. And yet the Attorney-General may have been wrong. Nobody can say for certain how the strike would have worked out if it had taken place. No one can say for certain at the outset that the real 564 object was to get legislation on the minimum wage question. It might have been, after the strike occurred and if the injunction had not come in to stop it, that the miners, although some of them might have spoken of legislation, really might not have pressed for legislation, and they might conceivably in theory have come to an agreement with the owners to get a minimum wage without legislation. In that case they would not have been coercing the Government, the strike would have been legal, and the miners would have got a minimum wage. Owing to the injunction having been obtained before the strike started, however, the strike in most cases would have been stopped and could not take place.
That is a point which does want very careful consideration, and it is one of the points in connection with this matter which make the unions and Labour people very apprehensive. I should be sorry to think it was intended that the clause should have that effect. When the Attorney-General spoke about the matter in another place, on the Second Reading, he put it on a very broad basis. He envisaged a great General Strike which threatened the whole life of the community, but on the words of this Bill, and in view of the cases which have been given, which we are told come within the ambit of Clause 1, it is clear that the Attorney-General could use this clause for purposes very different from that, and could use this power to stop not only sympathetic strikes but a large number of strikes in single industries, which, if they had taken place, might in the end have proved to be entirely legal, and might have been of benefit to the workers in getting them better conditions. If that view, which I am putting forward, is the correct one, I should be very glad to hear what the Lord Chancellor has to say upon the matter.
May I now put another point to the Lord Chancellor? The Attorney-General, in another place, seemed to agree that after an injunction had been granted, but before it had been determined whether a strike was legal or not, the strike could go on, because the question was asked as to whether, when proceedings were pending, there could, in the interval, be a discussion in Parliament of this question. The next question is perhaps equally important, if not even more important, 565 and it is whether in the interim, before a final decision was given, there could be discussions and so forth in the Press about a pending strike, or would the matter be sub judice. What I want to clear up is this: How, if the Attorney-General gets, and can get in advance, an injunction to stop a threatened strike, can the strike go on at all after that? In the first place you would be running great risk, and secondly, if the union's funds have an embargo placed upon them, what are the men to do? I do not quite understand why, when that question was asked in another place, the reply was not: "Oh that would not arise because after an injunction had been granted there would, and could, be no strike." That is a point which I think is very important and requires clearing up. I now come to a word or two about the Amendment of which I gave notice.
§ LORD ARNOLD
I do not quite understand the reason for those interjections; I think I have been putting this matter very moderately.
§ LORD ARNOLD
No, because I was told I could not move the Amendment. I am speaking on the clause as a whole.
§ THE MARQUESS OF SALISBURY
I am very sorry. It was I who was obscure in that case. The noble Lord was called on to move his Amendment. He asked if he could discuss the clause as a whole, and we suggested to him being the guardians of order—the whole body of the House—that it was not in order to discuss the whole clause on an Amendment to the clause, but that the noble Lord should confine himself to the Amendment, and we were waiting till he came to the Amendment.
§ LORD ARNOLD
There has been a misunderstanding. I shall be surprised if the OFFICIAL REPORT does not show tomorrow that I distinctly said, in view of what had been said, that I would not move the Amendment, but would speak on the Motion to leave out the clause as a whole. And I think I said I would let my Amendment go by the board. I said that Lord Muir Mackenzie was not here and therefore could not move his Amendment, and I would take his place.
§ LORD ARNOLD
No. But I can speak about it on the clause as a whole, and, if I get any sympathy, I can raise the matter on Report. The Amendment was to put in the words "a declaration or".
THE LORD CHAIRMAN
I am sorry now to interrupt the noble Lord. I understand that he is speaking to the Question that Clause 7 stand part. It is my duty first to put that Question.
§ LORD ARNOLD
Surely I am at liberty to suggest changes which might have been made in the clause. I am not moving the Amendment, and, speaking with not small Parliamentary experience, the procedure. I am adopting is a very usual one. The point I want to put is that in our view there would be some advantages in having, the clause amended so that a declaration could be given by the Courts, as well as an injunction. It is an alternative—a declaration or an injunction. We think, for reasons which are tolerably clear, that that would be an advantage. Of course, a declaration, as I understand, could not be made until after the strike had actually started. I do not think it could be made in advance. I may be wrong there, but that is my information—that you could not have a declaraton unless the strike were in progress, and if the strike were in progress and the Court was virtually satisfied that it was illegal, and gave a declaration, then the declaration—if it was a right thing to give—would settle the matter finally, without waiting for an interim period until further evidence and so forth had come along. That, it seems to me, is one of the advantages.
It may be said that it is not necessary to put those words in, that the Court can do that now, whether the words are in the clause or not. Whether that is so or not I am not competent to say. In fact, I notice that the Attorney-General suggested that even this clause was not necessary, that he could act without this clause. He was asked: "Does the clause add to your powers?" He said: "Well, it makes them clear; it defines them," which I understood to mean that he thought he could apply for an injunction even if the clause had not 567 been in the Bill. Personally I should think that is a matter for very great argument. As regards the declaration, I think it would be very difficult for the Court to make a declaration if the words are not in the clause because the Court might say, "Well, we cannot do that. It is not in the clause. The clause only says that we may give an injunction." I ask the noble and learned Viscount what harm would there be if these words were put in? Even if they were never availed of, it would do no harm. On the other hand, I can conceive circumstances where it might be a considerable advantage to have these words in the clause, therefore I think there is a strong case for putting them in.
I think I have largely covered the ground now. We are apprehensive about these matters. I will not go again into the question of the Astbury Judgment, which was referred to by my noble and learned Leader. That certainly made many people in the unions and among the workers very apprehensive as to what might happen if application were made to the Court during an industrial dispute. We also had last year a speech from the Solicitor-General, in which he said:I believe strikes are obsolete, and ought to be made illegal. It ought to be taken out of the workers' hands by the State. They ought to be deprived of it in their own interests.That is a very strong statement to make. And if that is the view of the Solicitor-General, who may be the next Attorney-General, it is not a very encouraging outlook for the workers.
§ LORD ARNOLD
It is taken from the OFFICIAL REPORT on the Third Reading debate in another place, quoted by Mr. Philip Snowden.
§ LORD ARNOLD
Well, I have read it word for word from the Report. The date is June 23. Mr. Snowden said that was spoken last year during the industrial dispute.
My final point is that surely this clause, if it is to be in the Bill at all, whether the application be for an injunction or a declaration, ought to be confined to the case of a big General Strike, a 568 strike of the whole country. That appeared to be the original intention. It ought not to be possible to hold up and break, as we fear may be done under it, sympathetic strikes, or strikes in a single industry. That really does not seem to have been the intention of the Attorney-General when he first outlined this proposal, and in my view it would be going very much beyond the original intention to make it possible for any Attorney-General to have this power in the case of a sympathetic strike, or a strike in a single industry. If the Lord Chancellor says these things are difficult to define, of course one of the vices of the whole Bill is that so much in it is difficult to define. I think, at any rate for this purpose, whatever difficulty there might be about a sympathetic strike, it would be possible to put words in the Bill confining this power in Clause 7 to strikes other than those in a single industry. At any rate, I think that ought to come out. And it would be quite feasible to put in words to do that. If it is contended that the clause only defines and makes clear the powers of the Attorney-General I, of course, do not agree, and I feel certain that no kind of case of that sort could be made out to show that he has power now in the case of a strike in a single industry, whatever the object of that strike might be. In those circumstances I submit very strongly that if the clause is going to be kept in words should be introduced to confine its operations to strikes other than those in a single industry. I beg to move to leave out Clause 7.
Leave out Clause 7.—(Lord Arnold.)
§ THE LORD CHANCELLOR
I do not in the least complain of the course taken by the noble Lord in discussing this clause generally. I certainly misunderstood the noble Lord at the beginning. When his attention was called to the point of order, he gave a reply that conveyed to me that he would now move his Amendment, and postpone his general observations until later. That plainly was a misunderstanding, and I shall say no more about it. I shall deal first with the general observations of the noble Lord before referring to the Amendment which he may move at a later stage. He began by saying that this clause was a threat against the right to strike. I 569 assure him it is nothing of the kind. It is simply a provision for preventing funds being illegally applied, for preventing funds which belong to other people, the whole body of members of a union, being applied by the executive to illegal purposes and to purposes inimical to the State.
I am not going to re-discuss Clause 1 of the Bill, but I agree that the effect of this clause is that the Attorney-General may apply for an injunction to restrain the application of union funds to any purpose declared illegal by Clause 1 of the Bill. The noble Lord says that the effect of such an injunction would be to hamper the strike. Of course it would, but, if it is an illegal strike, it is surely right to prevent funds being applied in furtherance of it. The answer to the injunction would be simply that the anion in question would comply with the law, and there would probably be an end to the matter. He says that the chances in such an application would be in favour of the Attorney-General. I wholly dispute that. My experience is that our Judges enjoy nothing so much as to make reflections upon a Government Department, and, if they can, to decide against them, and in most cases with costs. I am sure that the Attorney-General would have to make out his case to the hilt before he could hope to obtain from any Court an injunction on so serious a matter as this.
The noble Lord referred to some observations, and he appeared to be quoting from my hon. and learned friend the Solicitor-General. I thought from what he said that these words had been used in debate in another place. That is not so. I have now a report of the debate in another place on June 23. I find that what happened was that Mr. Snowden in his speech attributed to the Solicitor-General the words which the noble Lord has just quoted. He did not verify the quotation. I do not know where they came from. I am told—although I cannot speak positively at a few minutes' notice—that the Solicitor-General does not admit having used any such words. If I may conjecture, in the speech in question he may have been arguing in favour of a view, which many people hold, that, before a strike, or at all events before a strike in some essential industry, is allowed, there should 570 be an inquiry by some independent authority. In other words, the system of the Lemieux Act in Canada should be introduced in this country. I expect, although I am only guessing in the absence of a full report of the speech, that he may have been speaking of a proposal of that kind. I am certain that my learned friend never implied in anything he said that strikes ought to be illegal. He has often said the contrary, and has said it in another place during recent debates. I have just received confirmation of the view I have formed that the Solicitor-General made no such observation about strikes in general, and that the speech to which reference is made referred to a General Strike which is treated as an illegal strike, and not to strikes of any other character. Perhaps I may leave that question there.
All that is purely observation of a general character, and does not in the least interfere with the view which I ventured to express on Second Reading that where you have an illegal strike, a General Strike, or some other form of strike illegal by law, which may affect the funds of a large body of men and may be injurious to the State, that is exactly the kind of case where in other instances the Attorney-General as representing the State can and should be allowed to take proceedings to restrain them. As to the Amendment, I need not delay upon it very long. I do not quite understand what it means. Perhaps we shall hear, if and when it is moved. Does the noble Lord mean that, after the strike has begun, the Attorney-General may apply to the Court for a declaration that the strike is illegal?
§ THE LORD CHANCELLOR
If that is so, that would not only be most unusual, but most ineffectual. The cases in which the Court has the right to make declaratory judgments are very rare. The general rule is that Courts only decide questions on which they are asked to take action, and they do not make general declarations upon matters about which there may be a discussion. They are generally asked to do something, and not simply to say something. But, apart from that, there are great objections to any such declaration. One is that it 571 would probably be absolutely ineffective. The declaration might be made, but there would be no Order of the Court restraining the application of the funds. They might be dissipated next day in face of the declaration of the Court, and the declaration would be wholly ineffective. Surely an injunction is the only remedy, because it stops the misapplication of the funds from the very moment it is pronounced. It may be an interlocutory injunction given at the beginning of the strike, or it might be a final judgment, given perhaps after a short time, but still in time to save the dissipation of the funds. That is the proper legal remedy if any application about funds is proposed. I will wait and hear what the noble Lord has to say about this point. In the meantime, it seems to me that to insert in this clause any provision for a declaratory judgment would not be an improvement, and that the right order to make when an illegal act is committed or threatened, especially if concerned with funds belonging to a great mass of men, is an order for an injunction. I do not propose to make any further observations, because I dealt with the matter on the Second Reading, and I have no doubt the House will adopt the provisions of this clause.
§ LORD PARMOOR
I would like to say a word or two in answer to the Lord Chancellor. This clause is entirely un necessary at the present time in the case of ultra vires acts, which is the only case of which he speaks, and there the Attorney-General has the right. Therefore this would really be a clause which is not required and would not give any further power to the persons whose private rights are affected, nor would it give any greater right than the Attorney-General now has in a case of ultra vires. There is a case in point—that of the Attorney-General versus the London County Council, which raised the question of the running of omnibuses between certain points. But that brings me to this conclusion. If it is quite unnecessary, having regard to the statement of the law made by the Lord Chancellor—and I think that probably is the true view—it is very dangerous to have a clause of this kind in a Bill of this sort. If there is one matter which the Courts are very 572 anxious about it is that no clause should be what is called otiose. You should really give effect to the words the Legislature has used. If any additional effect were given to this clause beyond the law as it exists at the present time then I agree fully with my noble friend Lord Arnold that these difficulties—difficulties of a very threatening kind—would certainly occur. Why is this clause wanted? A clause of this kind is certainly not wanted as the law now stands. Moreover, I think it is an extremely dangerous clause in itself, and I am sure my noble friend Lord Arnold was quite right when he expressed the view that it is capable of being used in a very dangerous way. I have suggested the danger of it, and I do not want to say any more as my noble friend, Lord Arnold, has travelled over the other side of the case. It certainly is extremely wrong to put in a clause of this kind if it is only in accordance with the law as it stands.
I rise to put one point to the noble and learned Viscount, because it seemed to me that he did not fully apprehend the fear that was in the mind of my noble friend. The noble and learned Viscount said that, an injunction would be given in order to restrain the use of these funds for purposes which have been declared illegal. But is not the whole apprehension in the mind of my noble friend Lord Arnold that an injunction might be given when it was still uncertain whether the purposes for which the funds would be used were legal or illegal?
§ THE LORD CHANCELLOR
May I interrupt the noble Lord? That would never be done. No Court would grant an injunction, final or interlocutory, without being satisfied that it must in law be granted.
I think the noble and learned Viscount said the injunction might be given before the strike began, or at an early stage, or after the strike had continued for some time. Would not the result, if an injunction was granted before the strike began, in fact be a declaratory injunction that the strike was to be an illegal strike? That is the apprehension. I think, in the mind of my noble friend Lord Arnold. Therefore, in a sense, this would be prejudging the very issues that would be in dispute.
§ THE LORD CHANCELLOR
The Court would have to be satisfied that an illegal strike was threatened. They would have to know exactly what was threatened and intended to be done, and to be sure that it was an illegal thing before they could grant an injunction, either before or during the strike.
§ LORD ARNOLD
The clause has now been discussed, and I will not go over the points again, but I once more call attention, if it is necessary, to my lack of legal knowledge. I therefore do not comment on the legal part, but I am bound to say I am not satisfied in regard to the point about the threatened strike. When this matter was discussed at considerable length in another place I think I am right in saying that the statement which has now been made was not then made in defence of the clause. However, I cannot say more about it now, and I do not propose to move my Amendment, for obviously it would not be accepted. I would like to say one word in regard to the quotation from the speech of the Solicitor-General. I am very careful about quotations as a rule, and I took the quotation word for word from the OFFICIAL REPORT in another place, and, as far as I know, there was no correction or disclaimer there during the debate. But I accept what has been said.
§ THE LORD CHANCELLOR
The noble Lord did not take it from the OFFICIAL REPORT of anything said by the Solicitor-General himself.
§ LORD ARNOLD
I accept what the noble and learned Viscount has said, but I think I exercised quite sufficient care in bringing the quotation forward.
§ On Question, Amendment negatived and Clause 7 agreed to accordingly.
§ Clause 8:
§ Short title, construction, interpretation, extent and repeal.
8.—(1) This Act may be cited as the Trade Disputes and Trade Unions Act, 1927, and shall be construed as one with the Trade Union Acts, 1871 to 1917, and this Act and the Trade Union Acts, 1871
to 1917, may be cited together as the Trade Union Acts, 1871 to 1927.
(2) For the purposes of this Act—
§ LORD ARNOLD moved, in subsection (2) (a), to leave out "or to accept employment." The noble Lord said: I need not detain your Lordships long in moving this Amendment, although I think it is one of very great importance, because it introduces words into the definition of a strike which I think are entirely new. This definition does set up a new provision in English law. Hitherto, as I understand it, a strike has meant the refusal to work at a particular employment, but according to these words a strike nay occur if a man will not take new work, if he will not "accept employment." Those are the words here. That seems to me to be the literal meaning of the definition as it now stands. Consider what that means. There is no stipulation whatever about what the terms of the employment are to be; in fact, looking at it literally, as this clause stands if men in a certain industry refuse to accept half of their previous wages it is a strike, because they are refusing to accept employment. Surely the Government does not intend that? I should very much like to know why the words have been put in, and unless there is some reason, which it not apparent to me, or to any of my friends so far as I know, I would strongly urge the Lord Chancellor to consider before the Report stage taking out these words.
§ One effect of the words is this. Many stoppages which are really lock-outs 575 would, if these words remain in the clause, become strikes. If the Lord Chancellor will look at the words he will, I think, admit that under this Bill a large number of disputes which are really lockouts would become strikes liable to be declared illegal, and the employers would be removed from all responsibility. I have a long list of disputes which were regarded as lock-outs, but with these words remaining in the Bill they would become strikes. I do not think that is the intention of the Government. As far as I know—but I would not like to be certain—this point was not discussed in another place, and I think it is one which requires very careful consideration. I hope the noble and learned Viscount will be good enough to say that he will look into it before the Report stage.
Page 9, line 41, leave out ("or to accept employment").—(Lord Arnold.)
§ THE LORD CHANCELLOR
The noble Lord has asked me whether I would consider this point before the next stage. I was proposing to go further than that. I do not quite agree with his comment upon the clause, because it only refers to a case where there is a concerted refusal to accept employment or to return to work. I think it is that which the framers of the Bill have in view, but I quite feel—and I have felt from the time when I first read the Bill in this House—that there was something to be said on the point. As the noble Lord has said, I do not think these words were objected to in another place, although I am not quite sure of that; but, on thinking them over. I am disposed, if the House agrees, to accept this Amendment at once, only reserving this right, that if in another place a different view should be taken the Government must not be taken to be finally bound by what I have said to-day. I am very pleased to take this course, because at last I have an Amendment which I can accept, and which will give the House an opportunity of having a Report stage on the Bill. I have already said I think it desirable that in the case of a Bill of this great importance there should be a Report stage in this House. That gives me, I had almost said pleasure, in accepting this Amendment.
§ VISCOUNT HALDANE
We are not only pleased, but we are gratified by the fact that at last the noble and learned 576 Viscount has accepted an Amendment out of hand. The words as they stand are very awkward words. They are: "refusal under a common understanding of any number of persons who are, or have been so employed." They might have been employed a year before, and if they will not accept employment there is a strike. If that is so it is a great innovation in the Common Law of this land, and I am quite sure it was not intended. I am very glad that the matter is now in the hands of the Lord Chancellor.
§ On Question, Amendment agreed to.
§ LORD ARNOLD moved to omit from paragraph (b) of subsection (2) the words "done with a view to compelling those persons, or to aid another employer in compelling persons employed by him, to accept terms or conditions of or affecting employment." The noble Lord said: I am so much encouraged by the kind reception of my last Amendment that I am most hopeful that this one also may be accepted, because I think that an equally strong case can be made out for it. I honestly believe that there is something here which has escaped attention in this very difficult and complicated Bill. The definition of lock-out is given in paragraph (b). After stating what a lock-out is the paragraph says that it should be done "with a view to compelling those persons," and so forth. It is quite evident, I think, that if those words remain in the definition then a lock-out cannot be held under this Bill under any circumstances to be coercing the Government, because a lock-out must be done with this object, which is not coercing the Government. If you look at the definition of a strike on the previous page it finishes, or did finish, with the words "accept employment." Now it finishes at the word "work." There is no qualification as to what the object is there.
§ It is quite true, if you turn back to Clause 1, that a case could no doubt be made out that the position is set forth there, and that a lock-out is referred to as "designed or calculated to coerce the Government." It is also true, curiously enough, that in paragraph (c) there appears to be a suggestion that a lockout can coerce the Government. But in the definition of lock-out those words do not appear. On the contrary, the meaning 577 appears to rue to be limited in the way I have indicated. I think that is so, and I hope that the Lord Chancellor will be kind enough between now and the Report stage to undertake at any rate to consider the matter, because we do feel that there is a real disparity which wants looking into. He has been good enough to promise to look into several points, and this is one more. I think it is a matter which requires very careful consideration, because really on the literal reading of the definition in paragraph (b) it seems that no lock-out in any circumstances could be held to be coercing the Government, because the object is there stated to be "with a view to compelling those persons" and so on.
Page 10, leave out from the beginning of line 6 to ("and") in line 9.—(Lord Arnold.)
§ THE LORD CHANCELLOR
Your Lordships know that on the introduction of this Bill the Government took the view that it was useless to include lock-outs in the Bill because no such thing as a general lock-out has even been heard of in our history. But, on consideration, and in view of the fact that a certain amount of—I hardly like to call it misrepresentation, but something of that, kind occurred, they did decide to include lock-outs in the Bill. In doing so they took the definition of the word lock-out from the Labour Party in the House of Commons. The Labour Party proposed a definition of lock-out, and the Government accepted that definition from Mr. Clynes. The definition was in the words which now appear in the Bill, and I think that we were entitled to assume that when the Labour Party asked for the inclusion of lock-outs they had accurately defined what they had in their minds. It is therefore a definition which comes from the Party of the noble Lords opposite, and we do not feel at all inclined to depart from it. I should add that this is not a definition as the noble Lord seems to think, of an illegal lockout. It is a general definition of lock-outs. Therefore his observations do not really apply. If you look into it you will see that without these words the definition would be much too wide, for it would apply to any case in which, in consequence of a dispute, works had been shut down. It might well be that because 578 of a dispute there was a dissolution of partnership and a cessation of business, and then these words would apply although there was nothing in the nature of a lock-out in the ordinary sense. These words, or something very like them, are, I am confident, necessary, and unless something much better is proposed at a later stage we should not propose to alter the Bill here.
§ LORD ARNOLD
On the point that these words were taken from the suggestion of the Labour Party, that no doubt is true. I do not know precisely the circumstances in which the suggestion was made. It may have been made for some different purpose. But in any case the Labour Party, with all its great virtues, does not profess to be infallible. It may be that on second thoughts it would decide that it would be better to have further words put in the definition. With great respect, to the noble and learned Viscount, the matter presents itself to me in this way. He says it would be awkward to leave out these words, and suggests that that really is the whole problem. If he desires to keep these words in, what I think might be done would be to put in other words as well to cover this point. As I ventured to observe yesterday, it is a very common dilemma in Parliamentary procedure that these extremely difficult points can scarcely he dealt with properly without the aid of highly skilled draftsmen. It is not very often that ordinary members, either of this House or of the other House, can get over a difficulty of this extreme complexity. I do not think, if I may say so, that, the noble and learned Viscount would be giving anything away if he said he would consider it. Perhaps he did imply that he would consider it when he said that other words might be brought forward. But it is a very difficult matter, and I think it would be helpful in the endeavour to find words to meet a point which I think is a real point if the Government draftsman could be called in to the problem.
§ On Question, Amendment negatived.
§ Clause 8, as amended, agreed to.
§ Schedules agreed to.
§ THE MARQUESS OF SALISBURY
Before the House is resumed I think it would be for the convenience of your 579 Lordships that I should say that we propose to take the Report stage of the Bill this day week. We propose that so that there may be sufficient time for my noble friend the Lord Chancellor to consider the points which he has undertaken to consider, and also to give noble Lords time to make any proposals they think fit. If the Government were fortunate enough to persuade your Lordships to agree to accept the Report on Thursday, we should propose to have the Third Reading on the following Monday. I ought to add, in case there should be some difficulty on Monday owing to the rules of your Lordships' House, that I think I should be entitled to ask the House to give the Third Reading of this Bill priority on Monday over other Orders, if such appear upon the Paper, and I shall be ready to make that suggestion when the time comes.
§ Moved, That the House do now resume.—(The Marquess of Salisbury.)
§ VISCOUNT HALDANE
My Lords, I think that suggestion is quite reasonable. Until we have seen whether there are any changes in the Bill, we cannot commit ourselves to a day being sufficient for the Report stage, but it may well be that it will prove to be so. We shall see.
§ THE MARQUESS OF SALISBURY
Quite so. I hope that we shall have no difficulty in disposing of the Report stage on Thursday before our usual hour for rising, but no doubt, if necessary, your Lordships will be ready to sit late.
§ On Question, Motion agreed to, and House resumed accordingly.
§ House adjourned at twenty-five minutes before six o'clock.