§ Amendment reported (according to Order).
§ Clause 1:
§ Illegal strikes and lock-outs.
§ 1.—(1) It is hereby declared—
- (a) that any strike is illegal if it—
- (i) has any object other than or in addition to the furtherance of a trade dispute within the trade or industry in which the strikers are engaged; and
- (ii) is a strike designed or calculated to coerce the Government either directly or by inflicting hardship upon the community; and
- (b) that any lock-out is illegal if it—
- (i) has any object other than or in addition to the furtherance of
734 a trade dispute within the trade or industry in which the employers locking-out are engaged; and
- (ii) is a lock-out designed or calculated to coerce the Government either directly or by inflicting hardship upon the community;
§ For the purposes of the foregoing provisions—
- (a) a trade dispute shall not be deemed to be within a trade or industry unless it is a dispute between employers and workmen, or between workmen and workmen, in that trade or industry, which is connected with the employment or non-employment or the terms of the employment, or with the conditions of labour, of persons in that trade or industry; and
- (b) without prejudice to the generality of the expression "trade or industry" workmen shall be deemed to be within the same trade or industry if their wages or conditions of employment are determined in accordance with the conclusions of the same joint industrial council, conciliation board, or other similar body, or in accordance with agreements made with the same employer or group of employers.
§ (2) If any person declares, instigates, incites others to take part in or otherwise acts in furtherance of a strike or lock-out, declared by this Act to be illegal, he shall be liable on summary conviction to a fine not exceeding ten pounds or to imprisonment for a term not exceeding three months, or on conviction on indictment to imprisonment for a term not exceeding two years:
§ Provided that no person shall be deemed to have committed an offence under this section or at common law by reason only of his having ceased work or refused to continue to work or to accept employment.
§ (4) The provisions of the Trade Disputes Act, 1906, shall not, nor shall the second proviso to subsection (1) of Section two of the Emergency Powers Act, 1920, apply to any act done in contemplation or furtherance of a strike or lock-out which is by this Act declared to be illegal, and any such act shall not be deemed for the purposes of any enactment to be done in contemplation or furtherance of a trade dispute.
§ THE MARQUESS OF READING moved, in subsection (1) (a) (ii), to leave out "or calculated." The noble Marquess said: My Lords, in moving the Amendment to, omit the words "or calculated" my purpose is to clarify the language of this Bill so that it may be made plain and more precise. We have had the advantage of discussions both on Second 735 Reading and in Committee, and the result has been to help to make this Bill better, I think, that when it came here. If the Amendments which are on the Paper to-day, particularly those standing in the name of my noble and learned friend on the Woolsack, are carried, I think it will be further improved. Your Lordships will remember that with reference to the subject of intimidation, the Lord Chancellor said he would reconsider a certain part of one clause and see whether he could introduce language which would be more definite. I do not desire to anticipate what may take place upon that, but I would say for myself that I think the language on the Paper, which it is intended to move, as I gather, will go far to meet the objections raised to the vagueness of the definition given in that particular clause.
§ The only reason I refer to it now is that I am rather sorry that discussion on the particular words which I propose should be omitted—"or calculated"—did not take place in Committee, inasmuch as we might have had the advantage of the Lord Chancellor's consideration of those words. There was very little discussion, as I understood, because the subject was to be raised again on the Report stage, if there was a Report stage. The whole point of the proposal that I put before your Lordships is to take out the words "or calculated." If this is accepted it will leave the definition of a General Strike as framed in so far as it relates to the intention. The clause will then declare that any strike is illegal if it "is a strike designed to coerce the Government," and so on. I am not proposing to change the language of the clause, but the words "or calculated" introduce an element of doubt and uncertainty as to their meaning which I hope may be solved as the discussion proceeds. I take it that in a Bill of this character, as has been already indicated by some of your Lordships on the other side of the House, the desire is to make the language as clear and as definite as possible, in order that those who are affected by it and who would undoubtedly come within it if there were what is called a General Strike—that is the working people who struck—may be made to understand what they are doing and whether or not the particular action that they may be about to take would be illegal and would render them amenable to the Criminal Law of the country. It 736 is for the purpose of making this clause definite that I propose to leave out these two words.
§ As I understand the language of the clause, which is certainly familiar in Statute phraseology, what is intended in the first half, where the strike is declared to be illegal if it is "designed" to coerce the Government, is to cover a strike that is intended to coerce the Government. That is the plain meaning of "designed," and nothing that I am saving at this moment is meant in the slightest degree to weaken the effect of the clause as it stands before us at this moment. We have discussed it on the general prnciple and we are now dealing with it for the purpose of amending the language, if possible. But when the words "or calculated" are added, it will at once be clear that either "calculated" means the same as "designed" or it means something more. Obviously it is introduced by the draftsman to give some further meaning than is covered by the word "designed" and, as I understand the object of the draftsman, it is to include all strikes that are intended to coerce the Government—those which we know as political strikes—and also all strikes that may not be intended to coerce the Government but may nevertheless have consequences which would coerce the Government. That is what I gather is meant by the phraseology.
§ The submission that I make to your Lordships is that the object in view will be quite sufficiently met if the words are left as I suggest and if the strike is defined as a strike "designed" to coerce the Government. That would be sufficient to cover the political strike, though of course it does not apply to the industrial strike. But we have been told, and I think there was general agreement in your Lordships' House, that what was aimed at by this Bill was to prevent the political strike and to render it illegal. All this will be met by the form that I suggest. The difficulty raised by these extra words is that men who take part in a strike which is not intended as a political strike, but nevertheless develops and perhaps becomes more serious as time proceeds and in that way may be said to be coercing the Government, would come within the law, the strike would become illegal and those who instigate or incite would equally be amenable to the penal- 737 ties prescribed in the Bill. That means that a strike perfectly innocent at the outset might under the language of this Bill become an unlawful strike as it proceeds, because it may increase and, although it was never intended to do so, may coerce the Government at some stage, or may be calculated to coerce the Government; and accordingly, although there was never any intention of coercion, it becomes a strike that is likely to coerce and would bring those who instigate or incite within the meaning of the Act. I cannot think that this is wise in a Statute of this character.
I also find it a little difficult to understand why these words are introduced, because we know perfectly well that in law a man is presumed to intend the natural consequences of his act or, as it is sometimes phrased, "the reasonable consequences." In Clause 8 it is declared—
A strike or lock-out shall not be deemed to be calculated to coerce the Government unless such coercion ought reasonably to be expected as a consequence thereof.
It is very difficult, as, it seems to me, to distinguish this from intention. You may say exactly the same with regard to intention, and it may be said that a strike or lock-out "shall not be deemed to be designed to coerce the Government unless such coercion ought reasonably to be expected as a consequence thereof." The law presumes the intention if the action has a natural consequence, and that, I gather, is the limitation that is placed upon the word "calculated "; but it is difficult to understand what distinction is to be drawn in that case between "designed" and "calculated." The consequences of both, if they are reasonably to be expected, would no doubt be presumed in law to show intention, and it would equally be presumed that the action was "calculated." So far as I am able to judge—I am not, of course, in the secrets of the draftsman of this Bill—I should imagine that the words originally introduced were "designed or calculated," and when it was pointed out that these words had a very far-reaching effect and would extend further than was intended by the framers of the Bill and that some limiting words ought to be introduced unless the net was to be cast too wide, the words that I have quoted were then inserted. But the effect, as I read it, is to place
"calculated" in the same position as "designed" for the purposes of this Bill.
§ It may be said that no harm is done if "calculated" means nothing more than "designed." I am sure that all those who take part in the interpretation of Statutes and have to do with the administration of the law, will agree that it is very dangerous to have two words used at this juncture if it is intended that the words should have a synonymous interpretation. I suggest therefore that if this Amendment is adopted no harm would ensue. A General Strike would be rendered illegal. The natural consequence would have to be regarded to see what was the intention, and if coercion of the Government did result, then it would be presumed in law that there was that intention, and the Government would have enacted, with the assistance of Parliament, all the protection that is desired against a General Strike. Looking at the clause and the whole of the Bill, and with the desire in this Chamber to make the Bill clear, I would submit to my noble and learned friend that it is worthy of consideration whether in point of fact these words might not quite usefully be omitted, with the effect of improving the Bill, just as the proposed Amendment to Clause 3, which he has put on the Paper, undoubtedly in my opinion does improve the Bill and does make its phraseology more precise and certain. I beg to move.
Page 1, line 12, leave out ("or calculated").—(The Marquess of Reading.)
§ THE LORD CHANCELLOR (VISCOUNT CAVE)
My Lords, on one point the noble Marquess is in error. He seems to think that this question was not discussed on the Committee stage of the Bill. No doubt he was not present, at the time, but it was fully discussed on an Amendment moved by the noble Earl, Lord De La Warr, who desired to out these words. I gave my reasons then why I could not accept that Amendment, which was substantially the same as this. Really, what you are asked to do to-day is to reconsider, on Report, a decision deliberately reached in Committee. The noble Marquess says that all he wishes to do is to make the Bill clear. I think the Government have shown their willingness to make the Bill clear by meet 739 ing any reasonable criticism of the Bill. The Order Paper alone is enough to show that. But this Amendment, if adopted, would not make the Bill clearer. I think it would make it ineffective, and for this reason.
It is very difficult, when you are dealing with a large body of men, to prove what is their design—what, in striking, they have designed to do. The minds of men differ. Some are better educated than others, some have more lucidity than others, and when you have a great crowd or body of men their motives differ, and you cannot say what is the design of all of them. What you can do is see what they do. They strike, perhaps, and you see what is the natural and probable consequence of what they do. If the consequence is that coercion is put on the country in the manner described in the Bill, then the law intervenes and says that must stop—it becomes from that moment an illegal strike and you may no longer take part in it. That is perfectly simple. The noble Marquess says the words "designed" and "calculated" mean the same thing. If that is so there is no need for the Amendment. In my view they do not mean the same thing. Design is the intention in the man's mind—something which is the natural consequence of the act which he does. "Calculated" is defined in the Definition Clause, which says "a strike or lock-out shall not be deemed to be calculated to coerce the Government unless such coercion ought reasonably to be expected as a consequence thereof." Surely if coercion of the Government
§ or the country ought reasonably to be expected as a consequence of what a man does then it is calculated to have a certain result, and the strike ought to be pulled up. The word "calculated" is well known to the law, and I think its meaning is clear to every man who reads the Bill. I strongly press your Lordships not to accent the Amendment.
§ VISCOUNT HALDANE
The point of this discussion is a very short one indeed. Design means intention. It means that the person concerned intends the strike to be one which will coerce the Government. "Calculated" is a very different word. It may be a strike calculated to coerce the Government if it develops into a strike which has that effect because of the circumstances which emerge. A strike at the beginning may be a most legitimate one, but circumstances may emerge which make it serious for the Government, although those who entered into it never intended it to assume that shape. By the word "calculated," therefore, you are sweeping in a large number of people who possibly had no intention—no design—of coercing the Government, but who have engaged in a strike which has become calculated, by change of circumstances, to coerce the Government. I can only say that it is introducing into the law a new and very oppressive principle for all concerned.
§ On Question, Whether the words proposed to be left out shall stand part of the clause?
§ Their Lordships divided:—Contents, 72; Not-Contents, 24.741
|Cave, V. (L. Chancellor.)||Howe, E.||Askwith, L.|
|Lindsey, E.||Banbury of Southam, L.|
|Northumberland, D.||Lucan, E. [Teller.]||Biddulph, L.|
|Portland, D.||Macclesfield, E.||Bledisloe, L.|
|Somerset, D.||Minto, E.||Carson, L.|
|Sutherland, D.||Morton, E.||Clanwilliam, L. (E. Clanwilliam.)|
|Wellington, D.||Onslow, E.|
|Plymouth, E. [Teller.]||Danesfort, L.|
|Bath, M.||Powis, E.||Darling, L.|
|Normanby, M.||Selborne, E.||Daryngton, L.|
|Westmeath, E.||Ernle, L.|
|Bathurst, E.||Erskine, L.|
|Bradford, E.||Bertie of Thame, V.||Gage, L. (V. Gage.)|
|Clarendon, E.||Falkland, V.||Gisborough, L.|
|Cranbrook, E.||FitzAlan of Derwent, V.||Hampton, L.|
|Denbigh, E.||Hutchinson, V. (E. Donoughmore.)||Hayter, L.|
|Doncaster, E. (D. Buccleuch and Queenberry.)||Hunsdon of Hunsdon, L.|
|Inchcape, V.||Islington, L.|
|Graham, E. (D. Montrose.)||Novar, V.||Joicey, L.|
|Halsbury, E.||Sumner, V.||Kenmare, L. (E. Kenmare.)|
|Harewood, E.||Younger of Leckie, V.||Kintore, L. (E. Kintore.)|
|Knaresborough, L.||Saltersford, L. (E. Courtown.)||Teynham, L.|
|Lawrence of Kingsgate, L.||Wavertree, L.|
|Lovat, L.||Saltoun, L.||Wharton, L.|
|Montagu of Beaulieu, L.||Somerleyton, L.||Wigan, L. (E. Crawford.)|
|Newton, L.||Strathcona and Mount Royal, L.||Wittenham, L.|
|Phillimore, L.||Wynford, L.|
|Lincolnshire, M. (L. Great Chamberlain.)||Cowdray, V.||Northington, L. (L. Henley.) [Teller.]|
|Leverhulme, V.||Olivier, L.|
|Reading, M.||Parmoor, L.|
|Arnold, L.||Sandhurst, L.|
|Beauchamp, E.||Ashton of Hyde, L.||Shandon, L.|
|Buxton, E.||Charnwood, L.||Southwark, L.|
|De La Warr, E.||Gorell, L.||Stanmore, L. [Teller.]|
|Strafford, E.||Hemphill, L.||Tenterden, L.|
|Muir Mackenzie, L.||Thomson, L.|
§ Resolved in the, affirmative, and Amendment disagreed to accordingly.
§ LORD TEYNHAM moved, in subsection (1) (a) (ii), after "inflicting," to insert "serious." The noble Lord said: My Lords, this Amendment, which would make the paragraph read "either directly or by inflicting serious hardship on the community," is really an attempt to make more plain the meaning of the word "coerce," about which there was so much discussion during the Committee stage. The noble and learned Viscount on the Woolsack defined the word as meaning "compel" and he instanced the General Strike, but it seems clear that there might be a strike in a particular trade which might even have a political character, yet the hardship upon the community might be of a comparatively insignificant character and therefore hardly calculated to coerce the Government. I take it that this clause is really directed against a. General Strike, or against a strike on such a scale as would be a, menace to the community and a serious interruption to the life of the people. If that be the case I think the paragraph requires some qualification. Sooner or later this clause is likely to find its way into the Courts and it appears to me that the task of the Court in deciding what exactly the meaning of this clause is will be rendered easier by the adoption of this Amendment.
Page 1, line 14, after ("inflicting") insert ("serious").—(Lord Teynham.)
§ THE LORD CHANCELLOR
My Lords, I recognise the intention with which the Amendment is moved, but I suggest to the noble Lord and 742 to the House that there are two objections to it. The first is that it is unnecessary, and therefore, according to the noble Marquess who last addressed us, is harmful. Surely any strike which is intended to coerce the Government by inflicting hardship on the community must be intended to inflict hardship which may be described as serious. But apart from that there is this further objection to inserting the word, that opinions differ very much as to when hardship becomes serious. The suffering caused to the community might at the beginning be slight—so slight as not to be properly described as grave or serious—but might grad sally grow until there came a moment when you would call it serious. In such a case how can you say whether the strike was designed to inflict serious hardship later on? You have to look at the intention or probable result of what men do, and if the probable effect of what they do is to put pressure on the Government by means of creating hardship to the community itself, then that is a strike Which comes within the provisions of this clause. I hope the noble Lord on reflection will not insist on the insertion of this word. In my view it is not only useless but would be harmful.
§ LORD OLIVIER
My Lords, I had hoped that the noble and learned Viscount was going to make a small concession. He has down an Amendment to Clause 6, to insert these words "cause injury or danger or grave inconvenience to the community." I submit that some such words as those might be inserted here in connection with the word "inflicting." If an Amendment were 743 moved to that effect I think it would be a reasonable one and would be consonant with the Lord Chancellor's Amendment to Clause 6.
My Lords, in view of what the noble and learned Viscount on the Woolsack has said, I do not propose to press this Amendment.
§ Amendment, by leave, withdrawn.
LORD ARNOLD moved, in subsection (1), immediately before "For the purposes of the foregoing provisions," to insert:—
Provided that no strike within the trade or industry in which the strikers are engaged shall be illegal if the object of the strike is connected with the employment or non-employment or the terms of the employment, or with the conditions of labour, of persons in that trade or industry, and if the object of the strike can only be attained with a reasonable degree of security and permanence by legislation or by some Government action or regulation.
§ The noble Lord said: My Lords, this Amendment is the natural outcome of the Committee stage discussions last week and of what the Lord Chancellor said in Committee. The subject matter of the Amendment was not fully dealt with then and I do not think I am misrepresenting the Lord Chancel for if I say he practically invited an Amendment on the point at issue in order that there might be discussion. After his various statements in Committee about the amendment of Clause 1 it was, I think, our manifest duty to put down the Amendment which is now on the Paper. The Lord Chancellor, it will be remembered, carried the meaning of Clause 1 far beyond the original purpose of the Bill and far beyond the meaning given to the clause by the Attorney-General and the Solicitor-General in another place. This Bill is supposed to be the outcome of the so-called General Strike. It was put forward originally to deal mainly with the General Strike—in fact to deal with the General Strike—and the Lord Chancellor himself, in the four principles which he enunciated on the Second Reading, made that clear. Yet last week, in Committee, the position of the Lord Chancellor was very different. That position was that Clause 1 of this Bill will make illegal, not only a General Strike, but a large number of sympathetic strikes; in fact, nearly all 744 sympathetic strikes and also a large number of strikes in a single industry. A large number of those strikes will, according to the Lord Chancellor, be illegal under Clause 1.
§ Various examples were submitted last week of strikes in a single industry, all of which, according to the Lord Chancellor, will be illegal. I will not weary your Lordships with many examples, but I must give one or two to make the point quite clear. I wish to emphasise that there is no repetition in what I say on this Amendment of what was said last week, save possibly in so far as the matter was not then properly dealt with. First, I take a strike of sailors to get the Plimsoll line altered because they hold that unless it be altered ships are unseaworthy. Now the Plimsoll line can only be altered by the Government, and therefore a strike to effect that purpose is, according to the Lord Chancellor, coercing the Government and is illegal. That is not what the Attorney-General said. He said such a strike would be legal. Then I will take a strike of miners in respect of, say, safety regulations or pit inspection. The miners may very well hold that some of their mines are not safe in these two regards and not be willing to go on working under what they deem to be dangerous conditions. Therefore, that strike, according to the Lord Chancellor, is illegal, because it is coercing the Government and comes under Clause 1. But that is not what the Attorney-General said. The precise suggested strike in regard to safety regulations was put to the Attorney-General and he said it would be legal.
§ The last illustration I will give is one which was touched upon last week. It was put by the noble and learned Marquess, Lord Reading, but it is necessary that we should make absolutely definite what we mean. This is the case of a strike of miners to get the Eight Hours Act altered to a Seven Hours Act. I will put it like that because that is quite definite. The miners used to have a Seven Hours Act and I hold they are perfectly entitled to strike in order to get the present. Eight Hours Act changed to a Seven Hours Act. But that requires legislation and the Lord Chancellor indicated that it would be coercing the Government and would, therefore, be illegal. It is no answer to say that the 745 men can strike, and it would not be illegal for them to strike, in order to get seven hours without a new Act, that it would not be illegal for them to strike in order to get seven hours from their employers if they can, because experience has shown that uniformity of hours cannot really be attained, "with" (in the words of my Amendment) "a reasonable degree of security and permanence," except by legislation.
§ Your Lordships will remember it was after twenty or thirty years of experience of trying to get uniformity of hours without success that the Liberal Government of 1908 passed the Eight Hours Act of that year. The employers may conceivably be willing to give seven hours for six months in the year, but the men are entitled to say: "That is not good enough. We have had this strike, this loss and suffering, our union funds are all gone for the time being, and we are entitled to have the matter put right by an Act on the Statute Book just as we used to have." They are fully entitled to take that position. I do not think any valid argument can be urged against it. It is to cover cases like this that I have drafted the Amendment which your Lordships will find on the Paper.
§ The position taken up by the Lord Chancellor making illegal strikes of this kind is a very serious matter. These strikes have nothing whatever to do with the General Strike, against which the Bill is supposed to legislate, and such a position as was taken up last week, that such a strike would be illegal, was never indicated by the Lord Chancellor in the four principles stated during the Second Reading debate. The alleged justification of the Lord Chancellor last week was this, that such strikes are of a political character because they coerce the Government. That is in contradiction to what was said about such strikes under Clause 1 in another place by both the Attorney-General and the Solicitor-General, and it is this fundamental difference of opinion and of statement between the leading Law Officers of the Crown as to the meaning of Clause 1 to which I wish particularly to direct notice and criticism. I would venture, if I may do so, to ask your Lordships' very close attention to these points because I think 746 they ought to be considered very seriously. The Attorney-General and the Solicitor-General were asked, not once, but again and again, about strikes such as I have indicated, and they said such strikes would be legal, however much they coerced the Government.
I will give two very short quotations. The Solicitor-General said:—
. … any strike, however widespread, however coercive in its effect upon the Government, is legal so long as it is connected with a dispute within the strikers' own industry.
He went on to say:—
That gives freedom for strikes of a character which some hon. Members on our side of the House think ought to be prevented.
Those hon. Members said "Hear, hear" to that statement of the Solicitor-General. Then I have quotations from the Attorney-General to the same effect. The Solicitor-General said in another speech:
. … workers whose sole object is to improve the conditions of labour in their own industry are free to strike, even if the natural and probable consequence of their action may be to bring pressure to bear upon the Government, or even to compel the community to submission.
Those are the words of the Solicitor-General, and he added that the intention on the part of the Government was that the clause should have that effect. I will not weary the House with further quotations. I have them here and, if I am challenged, I can read them. I would appreciate the opportunity of reading them, if it were not wearying the House, because they would show how destructive those statements of the Solicitor-General and Attorney-General in another place are of the position of the Lord Chancellor.
There are fundamental differences and not only so, not only are the views of the Law Officers in another place at variance with those of the Lord Chancellor here, but I submit that last week, in regard to the illegality of strikes in a single industry, views of the Lord Chancellor in certain of his statements were at variance with his views in certain others of his statements in the same debate on the same day. For instance, he said this:—
The purpose of the Bill is to make illegal a strike which has no industrial pur
pose but which has nothing but a political purpose.
He also said:
We protect the purely industrial strike in an industry even though it is what I call coercive.
That is a complete contradiction of certain others of his statements in the same debate when he was asked from these Benches by my noble friend Lord Russell whether a certain strike would be illegal and he then said it would be because of its coercive effect upon the Government.
§ How is it possible to argue that the strikes, which I have given as examples, are not strikes for industrial purposes? I say they are for industrial purposes. Yet the Lord Chancellor said that the purpose of the Bill was to make illegal a strike which has nothing but a political purpose and that a purely industrial strike was protected. I submit that a strike, which, to use his own words, is a purely political strike with nothing but a political purpose, would be a strike of miners or men in any other industry to secure, for instance, the abolition of the House of Lords. That would be a purely political strike. The strikes of which I have given examples are not political, but are obviously industrial. The truth is that the Lord Chancellor cannot rightly describe these as political. To attempt to do that is to make a distinction which in reality cannot be sustained. They are industrial strikes and to put them in the category of political strikes is to give to these two words of the English language a new meaning and connotation which really will not bear close scrutiny.
§ The position of the Lord Chancellor is one which it is impossible to maintain at this time of the day when so many of the conditions of labour—hours and wages—in so many industries are governed by legislation or by Government regulation. In many cases that legislation or Government action has been brought about by strikes. You cannot now turn round, especially to those workers who have not yet got the protection which legislation or Government regulation gives, and say to them: "You cannot strike. If you do, it is illegal because you are coercing the Government. If you strike, all your leaders may be put in prison for two years, those who help in the strike may also be put in prison, and all your union 748 funds will go." That is a position which it is impossible to maintain. You will never convince the workers that they are committing a crime in trying to secure for themselves the conditions which their fellows have already got and which are secured to their fellows by legislation.
§ The Lord Chancellor said, in defence of this legislation, that the proper way to persuade Parliament is to convince the electors. What does that mean in this connection? That means that, if the workers in an industry, say the mining industry, hold their conditions to be unhealthy or dangerous, they cannot strike to get better regulations or more pit inspectors. They cannot strike; they must wait—it may be for years—until the next Government in the hope that the next Government will do what they want. That is an unreasonable position to take up. It is divorced from reality. That is my contention. No workers will go on, or ought to go on, under what they deem to be unhealthy or dangerous conditions. On those matters they have often been right against the Government view. Yet by this clause you are setting up in some industries a form of serfdom, because you are compelling men to go on working under dangerous and unhealthy conditions which they want to leave. You are saying to them: "You cannot do that. It is illegal and if you do it, your leaders will be put in prison." I say that in this matter you ought to have a safety-valve, that safety-valve which has existed for a hundred years. By this clause you are taking it away, you are screwing down the safety-valve and that is bound to lead to danger.
There are two further points with which I would like to deal. There is the point of view of Government intervention in strikes, which has not yet been discussed at all in this House on this Bill. It is very relevant to this clause. The Ministry of Labour does sooner or later intervene in most big strikes. It is one of its functions and it has special machinery for doing so. It is not infrequent that a strike is continued in order to coerce the Ministry of Labour into intervening. That has happened again and again. That, I suppose, according to the Lord Chancellor, is coercing the Government and would make that action illegal. Perhaps that is not so and it would not be illegal to coerce the Government in that way, but, according to the
view of the Lord Chancellor, why should it not be illegal? Where are you going to draw the line? I say you are attempting to make a distinction between the two words "industrial" and "political" which has no reality in practice and my Amendment is designed to keep legal strikes which are purely industrial and the object of which
can only be attained with a reasonable degree of security and permanence by legislation or by some Government action or regulation.
There are many cases where it is not sufficient for the employers to agree, if they will, to shorter hours or to better conditions just for a temporary agreement. That is not enough. The workers are entitled to more than that. They are entitled to legislation, and legislation is necessary in many industries for their security, as experience has proved again and again.
§ Of course, my Amendment, which would legalise strikes in a single industry, would make illegal nearly all sympathetic strikes and a General Strike. My Amendment, I need scarcely say, does not go as far as we on this bench want. We are against the whole clause. We know, however, that the Government will not delete the whole clause, as we should like, and this is an attempt to get something more satisfactory. I hold that this is the minimum the Government ought to concede, having regard to their professions about this Bill a short time ago and having regard to the various statements made in another place about it. If it is objected that the words of the Amendment are a little vague, if, for instance, some criticism is directed to the word "reasonable," my answer is that the word appears in other Acts of Parliament and is certainly less vague than other words and phrases which are in the Bill. I do not want, however, to be necessarily tied to these words. If the Government will accept the spirit of the Amendment, I am ready to have its wording revised between now and Third Reading by the Government draftsman. That often happens, as your Lordships know, when an Amendment is put down here by some noble Lord and the. Government accept the spirit of it but put the words in their own form before the next stage of the Bill. I have not put down an equivalent Amendment in regard to lock-outs because that can also be done 750 between now and Third Reading if the Government accept the Amendment.
§ There is a very strong case for defining the meaning of this clause as proposed in my Amendment. I have, I think, shown the disparity between the statements here and in another place and I would suggest that the position is one of complete, hopeless and irreconcilable confusion and contradiction. I would venture to say that never before in the case of a Bill of first-class importance has there been such a degree of confusion and contradiction as to the meaning of a clause and such a degree of contradiction between statements by Law Officers of the Crown. My own view is that if a clause of this sort was brought to your Lordships' House dealing with vested interests, and you had these diverse views expressed by the Law Officers of the Crown in a Labour Government, that clause would be rejected in the most summary manner. I do hope the Lord Chancellor will look with favour on this Amendment, which I think will do something at any rate to mitigate the harsh effect of the clause. I hope he will not say—I do not think he will—as is sometimes said by noble Lords opposite, that this raises questions which have been dealt with before and that it is all going over old ground. It is not raising questions dealt with before and it is not going over old ground. The position has not been made clear and it is to get the matter clear that I have put this Amendment down. I submit that the case for it is a very reasonable one and a very strong one, and in these circumstances I submit the Amendment with some confidence to your Lordships.
Page 2, line 8, at end insert the said proviso.—(Lord Arnold.)
§ THE LORD CHANCELLOR
My Lords, I am sorry to have to speak again, but the noble Lord based his argument entirely upon previous speeches of mine and I should like to deal with what he has said. The form of the Amendment is open to a great deal of comment, but I am not going to deal with that for the moment. I think it is unworkable as it stands, but I dare say by some amendment it might be made workable. I want to deal with the substance of the matter. The noble Lord, not for the first time, because he used the same arguments in 751 Committee, has misstated because he misunderstood what I said in Committee. He has gone further and he has done something which is unusual in this House. He has quoted speeches made in another place and he has attempted to show some contradiction between what was said in another place and what was said in this House. There is no contradiction at all. I accept every word which my friends said in the other House—although they have been very partially quoted—and I adhere to every word I said in this House.
The noble Lord wants to make me out as saying that if men on strike make a demand connected with their industry, and if in their view that demand cannot be satisfied except by legislation or Government action, and if they ask for legislation or Government action, then the strike becomes illegal. I have not said, and I do not think, anything of the kind. I was envisaging in my speeches—but perhaps I had better make a quotation from my own speech. I said:—Supposing the workman, whether he be a miner or a chemical worker or other worker, can get just what he wants from his employer, but says, 'No, I won't take it from my employer unless I can get the law of the country altered.' Obviously his object is political. I do not believe such a thing could occur. I do not think miners or any other workers are so foolish, while they can get what they want by agreement with their employers, as not to take by agreement what they can get, but to insist on having the law altered. That is all I said. In a case where they can get what they want by an agreement, but nevertheless strike, plainly their object must be political.That is all I have said and I quite agree that if men strike for a certain improvement in their wages or their conditions of labour, and if they cannot get that improvement secured without some Government action they would be quite within their right to ask for it.
I should not say a word against that. So if only part of the employers agree to the men's demands and the men asked for legislation or Government intervention, it would be unreasonable to penalise the men for that. To put it plainly, a strike or trade dispute is not political only because the strikers want to have the dispute settled by Government intervention or by legislation, but if they can get their terms without such intervention 752 and yet insist on striking for it there is no longer what is properly called a trade dispute but political action. I am certain that if the noble Lord is good enough to take all my speeches in Committee he would find that this is the effect of what I have said. I hope he will not attempt by quoting words here and words there to make me out as saying what I have never intended to say. If this explanation is accepted by your Lordships then this Amendment is unnecessary, and if it is unnecessary it is undesirable and it should not be accepted.
§ EARL BUXTON
My Lords, we discussed this matter at great length on the last occasion, and I do not propose to say more than a very few words regarding it now. I think no fewer than seven lawyers took part in this discussion. I will not say that there were seven differences of opinion, but there were great differences of opinion. The Lord Chancellor who, if he will allow me to say so, has conducted this Bill with the utmost desire to meet the views of noble Lords, and with the greatest courtesy, made a statement which, as we understood it, was opposite to the view taken by my noble friend sitting on my left. The real point is, what is the position of men taking part in a strike?
I understood, when we discussed the matter last time, that the view of the noble and learned Viscount on the Wool sack was that if miners—theirs is the simplest case to take—struck in order to obtain a universal seven-hour day against their employers, then that is quite obviously a legal strike. If the employers agree to the seven-hour day, as I understand the Lord Chancellor then the men ought to be satisfied, and if they take a further step of striking—not against the employers, because obviously the employers are not able to give a legal seven-hour day—to obtain a legal seven-hour day, that is political action intended to coerce the Government and therefore illegal. I cannot believe for a moment that that was the original intention of the Bill. If the miners, who once, after a great struggle, obtained their seven-hour day, to which they attach great importance, desired to go back to the old position—namely, to nave a seven-hour day by Statute—for the simple reason that unless they get it by Statute 753 they cannot get it throughout the country, though they might get, it from individual employers, I cannot believe that any one would feel that these men ought to be penalised under an Act of this kind and their leaders convicted of illegal action.
I am sorry that I am still not quite able to follow what the noble and learned Viscount on the Woolsack said just now. I understood him to begin his speech by saying that the view that my noble and learned friend on my left had taken of his speech was incorrect, but in the latter part of his remarks he seemed to me to reiterate the position that I have ventured to put to the House—namely, that it would be an illegal action on the part of the miners, if they were not satisfied with an eight-hour day, to strike in order to obtain a statutory seven-hour day. The people against whom they are striking are not in that case the employers, because the employers cannot do what they want, but the Government, who are the only people who can pass a Statute to give the security required. It appeared to me that the Lord Chancellor said that this would be illegal. That is not a position that any one can defend on any economic, industrial or political ground.
When this Bill was introduced, the Prime Minister, in another place and elsewhere, told us that it had been introduced solely with the object of preventing another General Strike. The General Strike is a totally different matter from that which I am now considering. I think that several clauses in the Bill go beyond the General Strike, but I am not dealing with them now. It is certainly clear that this clause, if the definition that we have been given of what is likely to happen is justified, goes far beyond the General Strike. My anxiety in this matter is the anxiety expressed more than once by my noble and learned friend on my left to make this Bill clear to those who will come under it. The Bill is a new step and creates new offences with which normally law-abiding citizens of the country may be charged, and its language ought to be perfectly clear. We have had, both in this House and in another place, a difference of opinion as to what the effect of this clause will be upon the miners and the sailors, and it is because I think that it is essential that we should have the matter made clear 754 and that, if the miners desired a statutory seven-hour day and struck for that purpose, such a strike should not be made illegal, that I am anxious that this proviso should be added to the Bill.
I entirely agree with what fell from the noble and learned Viscount upon the Woolsack as to the wording being very bad, and if we support the Amendment, as I believe my noble friends will, it is because it contains an opportunity of making clear what is and what is not an illegal strike with regard to miners, sailors and others. My noble friend Lord Arnold the other day, when I moved a very well-drawn and sensible Amendment, said that he did not like the wording or the way it was drawn, but he would vote for it. I will say the same to him. If there were any chance of carrying the Amendment I should not like to vote for it, because the wording is so bad, but I am prepared to do so because I know that it will not be carried, and I vote for it, not because I like the wording, but front principle. I appeal to noble Lords opposite to take into consideration all that I have ventured to say in regard to this point and to remember that it is essential that we should not make illegal any action on the part of any trade union which the ordinary man in the street would say should not be made illegal in that way.
§ LORD ARNOLD
My Lords, I shall detain your Lordships for only a moment before you go to a Division. With great respect to the noble and learned Viscount on the Woolsack, I am bound to say that I think that the position that I took up has been justified. Let me give two quotations which, I think, show clearly that the noble and learned Viscount did last week bring within the ambit of this clause a strike in the raining industry of the kind that was discussed. The noble and learned Marquess, Lord Reading, was speaking, and, referring to the Lord Chancellor's observations, he said:But he went on to say that if they struck against the Eight Hours Act in order to get their seven-hour day that strike would be within the clause. Is that really the position in which we are left limier this Bill?The Lord Chancellor then intervened, and said:I did not quite say that. I said if they struck for the purpose of getting the Eight 755 Hours Act repealed, and with that purpose designing to coerce the Government and Parliament, then it would be within the clause.Surely that means that a strike in a single industry which coerced the Government in that way would be illegal. My noble friend Lord Russell at a later stage, pursuing the quest further, said, again referring to the Lord Chancellor:I now understand him to say that a strike confined to the mining industry alone, and conducted by miners alone, for the purpose of securing a seven-hour day, if it included putting pressure on the Government to repeal the Eight Hours Act would be illegal and would be within the terms of the section. Have I represented the noble and learned Viscount correctly?To this question the Lord Chancellor replied:Except that putting pressure on the Government is not quite the same thing as coercing the Government and inflicting hardship upon the community.There is really nothing in that point. Lord Russell had obviously represented the noble and learned Viscount correctly,
§ and I find it impossible to reconcile those two statements with the position which, as I understand it, is now taken up that under certain conditions strikes of this kind would not come within the ambit of the Bill. But, like my noble friend who last spoke, I say nobody can be sure what the clause means. The position is one of inextricable confusion, and it cannot be put right unless some wording of this character is inserted. My noble friend says that he does not like the wording. My experience of Amendments is that as a rule nobody likes the wording. Amendments are very difficult things to draft. I think these words are quite reasonable, but I should be very glad, if the Government give any encouragement, to agree to have them put into any other form that might be more suitable before the Third Reading.
§ On Question, Whether the said proviso shall be there inserted?—
§ Their Lordships divided: Contents, 24; Not-Contents, 83.757
|Lincolnshire, M. (L. Great Chamberlain.)||Haldane, V.||Northington, L. (L. Henley.)|
|Reading, M.||Aberconway, L.||Parmoor, L.|
|Arnold, L. [Teller.]||Sandhurst, L.|
|Beauchamp, E.||Ashton of Hyde, L.||Shandon, L.|
|Buxton, E.||Denman, L.||Stanmore, L.|
|Chesterfield, E.||Gorell, L.||Tenterden, L.|
|De La Warr, E. [Teller.]||Morris, L.||Thomson, L.|
|Strafford, E.||Muir Mackenzie, L.|
|Cave, V. (L. Chancellor.)||Midleton, E.||Bledisloe, L.|
|Morton, E.||Carson, L.|
|Somerset, D.||Onslow, E.||Clanwilliam, L. (E. Clanwilliam.)|
|Sutherland, D.||Plymouth, E. [Teller.]|
|Wellington, D.||Powis, E.||Danesfort, L.|
|Selborne, E.||Darling, L.|
|Bath, M.||Stanhope, E.||Daryngton, L.|
|Normanby, M.||Stradbroke, E.||de Mauley, L.|
|Westmeath, E.||Desborough, L.|
|Shaftesbury, E. (L. Steward.)||Ernle, L.|
|Bathurst, E.||Bertie of Thame, V.||Erskine, L.|
|Bradford, E.||Churchill, V.||Gage, L. (V. Gage.)|
|Clarendon, E.||Falkland, V.||Gisborough, L.|
|Cranbrook, E.||FitzAlan of Derwent, V.||Hampton, L.|
|Denbigh, E.||Inchcape, V.||Hardinge of Penshurst, L.|
|Doncaster, E. (D. Buccleuch and Queensberry.)||Novar, V.||Hare, L. (E. Listowel.)|
|Peel, V.||Hayter, L.|
|Halsbury, E.||Sumner, V.||Hindlip, L.|
|Harewood, E.||Younger of Leckie, V.||Howard of Glossop, L.|
|Lindsey, E.||Hunsdon of Hunsdon, L.|
|Lucan, E. [Teller.]||Askwith, L.||Islington, L.|
|Macclesfield, E.||Banbury of Southam, L.||Joicey, L.|
|Mar and Kellie, E.||Berwick, L.||Kenmare, L. (E. Kenmare.)|
|Mayo, E.||Biddulph, L.||Kintore, L. (E. Kintore.)|
|Knaresborough, L.||Phillimore, L.||Teynham, L.|
|Kylsant, L.||Ranfurly, L. (E. Ranfurly.)||Wavertree, L.|
|Lawrence of Kingsgate, L.||Saltersford, L. (E. Courtown.)||Wharton, L.|
|Merrivale, L.||Wigan, L. (E. Crawford.)|
|Monteagle, L. (M. Sligo.)||Saltoun, L.||Wittenham, L.|
|Newton, L.||Sandys, L.||Wynford, L.|
On Question, Amendment agreed to.
§ Resolved in the negative and Amendment disagreed to accordingly.
§ LORD PARMOOR moved, in subsection (2), after "instigates" to insert "or." The noble and learned Lord said: My Lords, the next Amendment which stands in my name will not require any long explanation, although I think it is exceedingly important, both as a matter of substance and also as a matter of drafting. The words which I propose by a subsequent Amendment to leave out are "or otherwise acts in furtherance of." We have had some illustration during the various discussions on this Bill of very loose wording from a drafting standpoint. I do not myself attack the draftsman, because it appears to me that if yon want to create the distinction which is desired in this Bill, and separate definitely the political element of a strike from the industrial element, you are embarking upon a very difficult matter. The fact is that a very large number of strikes have a double element, and always must have a double element in all those cases where some alteration of statutory regulation is required.
§ What I want to bring to the notice of the Lord Chancellor is this: the words "or otherwise acts in furtherance of" are extremely wide. I mentioned the matter generally in Committee, but I was not here when the particular words were discussed, if they were discussed. They would involve an individual striker. A person who was striking or taking part in a strike would surely be a person who "acts in furtherance of," and it seems to me that almost any one might be included in words of that kind. Nor are they necessary, because, as the Lord Chancellor himself most clearly pointed out at the time, what he was aiming at really was included in the former words "declare a strike," which he said were understood as meaning instigates or incites others to take part in a strike. We all understand those words, and when dealing with the Criminal Law it is very necessary to be exact. When, however, you add these words, "or 758 otherwise acts in furtherance of," you are really creating a criminal offence of an absolutely indefinite character, and I think those words are worse in their operation having regard to the words "or calculated." I cannot think of any act which might not bring a perfectly innocent citizen, under those words, within the purview of the Criminal Law, and, coming within the purview of the Criminal Law, make him subject to a very heavy sentence which might be up to two years.
There is another point. The proviso states that
. … no person shall be deemed to have committed an offence under this section or at common law by reason only of his having ceased work. …
The word "only" really takes away the protection of the proviso, because at any rate in the mass of cases where there is a strike it is not only a cessation of work, it is, as a matter of fact, taking part in the strike. In that sense the striker is furthering the strike. I should like to add one word which I think emphasise the importance of getting greater precision. I am not attacking the Lord Chancellor, who knows as well as I do how important it is to have precise language if you can find it. The other day, to show how matters change, I happened to come across a speech made by Mr. Disraeli at the Mansion House dinner when he was Prime Minister in 1875. He was referring to the Act of 1875, which we are now modifying and altering, and the expression he used was this:—
I can claim by this legislation that for the first time in our history I have placed workmen and employers on an equality in the eye of the law.
That was done not by creating disabilities, as we are doing now, but by taking away disabilities which had existed before, either by Statute or at Common Law, so that you had a definition under which every strike was legal.
§ There was no question about it, because what one person could do—namely, to cease work for strike purposes—was made 759 legal in the case of a combination. The difference between that and this is very great. Here we are not removing obstacles, but we are creating crimes which do not exist at the present time. That class of crime which we are creating affects the working man in his union obviously to a far greater extent than it affects the employer in the case of a lock-out. You cannot get an equality by imposing these new obligations; the only way to get equality is by giving liberty within the widest range, as was done in the Act of 1875. In fact, from that time until now, as we know, every great Judge has said that strikes are legal. I wish this Amendment could be adopted because when you are creating new offences of this kind it really is a shame that they should not be created in such a form that the ordinary person can understand what the clause means. This clause could be interpreted so widely that it would include every one, whether guilty or not, in connection with an illegal strike.
Page 2, line 29, after ("instigates") insert ("or").—(Lord Parmoor.)
§ LORD PHILLIMORE
My Lords, it is necessary that there should be some further words if you have the words "declares, instigates, incites." Whether the words "otherwise acts in furtherance" are the best, I confess I somewhat doubt. If it is not too late in the history of this Bill I would press upon the noble and learned Viscount that we had very much better go back to the old words known to all lawyers who deal with criminal cases:. … every person who declares, aids, or abets a strike or lock-out declared by this Act to be illegal.I suggest that those words would be better than the words in the Bill, and would not be open to objection.
§ THE LORD CHANCELLOR
My Lords, of course I take this and the following Amendment, to leave out the words "or otherwise acts in furtherance of" together, and the purpose of them is to permit a person, when a strike is illegal, to act in furtherance of it. I am afraid I could not accept an Amendment having that effect. It would surely be absurd for Parliament to go to the trouble to declare a strike or lock-out illegal, and then to say that people may 760 act in furtherance of that strike or lockout. Indeed, if the noble Lord's Amendment were accepted, the effect of it would be that a man might not incite others to take part in a strike, but he might himself further it in any other way he thought fit. Surely that is a result which the noble Lord could not have contemplated. The Government have gone a, very long way in inserting the proviso, Which states—Provided that no person shall be deemed to have committed an offence under this section or at common law by reason only of his having ceased work or refused to continue to work or to accept employment.We had a debate on the word "only" in Committee, and I am bound to say I still think it makes no difference. It means that if he only strikes he will not be liable under this clause, but if he instigates others or acts in furtherance of a strike or lock-out, then he will be.
§ LORD PARMOOR
My Lords, of course I did not expect the Lord Chancellor to accept my Amendment. It appears that all attempts at a better definition are doomed to failure. But I will not re-argue the matter, because drafting is a very difficult art. A learned Judge has said it is putting your brain on paper in such a way that some one else can understand it. I should like at a later stage, if possible, if I could arrange with Lord Phillimore, to get in such words as he suggests, but for the present I beg to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
THE LORD CHANCELLOR moved to add the following proviso to subsection (4):—
Provided that no person shall be deemed to have committed an offence under any regulations made under the Emergency Powers Act, 1920, by reason only of his having ceased work or having refused to continue to work or to accept employment.
The noble and learned Viscount said: My Lords, I move this Amendment to carry out a promise which I gave in Committee. We are dealing with a proviso in the Emergency Act, which would have a somewhat similar effect to subsection (2) of this clause and we ought to put in words here which are similar to the proviso in that subsection.
Page 3, line 14, at end insert the said proviso.—(The Lord Chancellor.)
§ LORD THOMSON
When the Lord Chancellor was good enough to accept an Amendment of mine in this form he promised to insert a proviso something to the following effect—Provided that no regulation under the Emergency Powers Act, 1920, shall make it an offence for any person or persons to take part in a strike.I am very grateful to the noble and learned Viscount on the Woolsack for what he has done; at the same time I do not see the necessity with all respect for inserting "ceased work or having refused to continue to work" and still less "to accept employment," because the words "accept employment" have been deleted during Committee stage from a later clause in the Bill and they appear to me as regards both "continue to work" and "to accept employment" to be redundant in view of what one finds in Clause 1 subsection (2) and the proviso to that subsection. I submit these views with all respect to the Lord Chancellor and I also express the hope that there is no relationship between these words "to accept employment" and an Amendment which I see at the end of the Paper that proposes to reinsert those words in Clause 8.
§ THE LORD CHANCELLOR
My Lords, when I used the words which the noble Lord has quoted I was doing what is really an unwise thing to do, I was drafting while on my feet.
§ Clause 3:
§ Prevention of intimidation, &c.
§ 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 obstain 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 broach a 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, 1875.762
§ (2) In this section the expression "to intimidate" 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.
§ (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 omit the first three subsections. The noble Lord said: My Lords, I will be as brief as possible, but it is necessary to remind your Lordships of the history of this Amendment on the Committee stage of the Bill. When I moved it then the noble and learned Viscount on the Woolsack, replying to me, treated the arguments that I used somewhat curtly and stated that the Amendment would eviscerate part of the Bill and that he could not therefore accept the Amendment. The noble and learned Viscount was then followed by the noble and learned Earl, Lord Halsbury, who attacked Clause 3 in stronger terms than I had myself used. He stated that the clause filled him with amazement and used such adjectives as "slovenly drafting" and "inept phraseology." The noble and learned Earl, Lord Halsbury, was then followed by the noble and learned Marquess, Lord Reading, who also criticised the three subsections somewhat harshly and stated that in his opinion the criticism of the noble and learned Earl, Lord Halsbury, had been destructive of the clause in its present form. Upon that the noble and learned Viscount on the Woolsack undertook to reconsider every part of the clause.
§ That was the position and we are now confronted with the reconsideration which the noble and learned Viscount on the Woolsack has given to it. There are two Amendments down in the name of the noble and learned Viscount. The first does not in any way attempt to deal with the criticisms as to extreme 763 vagueness that were directed against the first subsection. They leave that subsection in all its vagueness. The second Amendment of the noble and learned Viscount does direct itself towards criticism that was made of the last words of subsection (2), but it does not deal with one other criticism that was made of that subsection—namely, that this subsection (2) is doing the very thing which the noble and learned Viscount on the Woolsack said in relation to Amendments to other clauses it was quite impossible to do—to dive into the mind of any person; in the case of the Amendments to dive into the minds of leaders of strikes. The noble and learned Viscount pointed out that that was quite impossible and that if it were done it would be out of the question that there should ever be any conviction. Therefore, the Amendments were turned down. Here, on subsection (2), we have exactly that state of things where it would be necessary to dive into the mind of the person who said he was intimidated, so that the criticisms on that subsection have not been met by the noble and learned Viscount at all. Nor are the criticisms on subsection (3) met.
§ It will be remembered that we took very strong exception to this form of legislation, where you are not in so many words altering the Act of 1875 but where the Government are doing what I cannot help thinking is a very objectionable practice. They are altering the definition and making the Act, in fact, refer to something to which it did not refer when it was passed. The noble and learned Viscount gave us a promise that he would reconsider every part of the clause and your Lordships will remember that he was pressed on all sides of the House, and not merely from these Benches, to accept an Amendment that was down in the name of the noble and learned Earl, Lord Halsbury. The point was made—and I do not think it can be controverted—that it is above all things important and indeed essential that when you are creating crimes the men should know quite clearly what those crimes are. I take my stand exactly on the lines of the words used by the noble and learned Marquess, Lord Reading. I cannot be a party to a law which makes a criminal offence but does not state in clear language what the offence is. We are told 764 by the noble and learned Earl, Lord Halsbury, whose experience on these questions is more recent and more intensive than that of any other noble Lord present, that the men do not know what the law is at present.
§ In moving the Amendment to omit these three subsections I am not moving to do anything which will make intimidation easier. I agree with the noble and learned Earl, Lord Halsbury, that the putting down of violence and intimidation ought not to be a Party matter and that what is illegal should be stated in perfectly clear language. The noble and learned Earl stated quite clearly that he had not had a case in front of him in all his experience with which the law as it now is was not competent to deal. That is the position I take and therefore I should be content to leave out these three subsections. But if it is the fact that it is desired to clarify and to strengthen the law, then I say I would infinitely prefer that clarification which the noble and learned Earl, Lord Halsbury, has himself undertaken—and which appears in a subsequent Amendment on the Order Paper—of this astonishingly vague, in definite and obscure clause. The noble and learned Viscount on the Woolsack took exception to the drafting of a clear and precise statement of law by the noble and learned Earl on the ground that that would throw the whole question of intimidation open to discussion and involve a great deal of time. But it is the business of Parliament to give proper discussion to anything which they are not satisfied is perfectly clear and to give the time that may be necessary to clear it up. I cannot help thinking, after the criticisms which have been directed to these three subsections, that if your Lordships pass them you will be passing what noble and learned Lords, not from these Benches only but from the opposite side of the House and from the Benches on my right, have declared to be extremely obscure. You will be lending colour quite definitely to the belief that your Lordships are prepared to abrogate your functions as a revising Chamber where a Conservative measure is in question.
Page 4, leave out lines 3 to 31.—(Lord Gorell.)
§ THE EARL OF HALSBURY
My Lords, in rising to speak upon this Amendment, I shall not detain your Lordships very long, because there is an Amendment by the Lord Chancellor and an Amendment in my own name on which I shall have to say something later on, but I should like at this stage to correct something said last time by the Lord Chancellor and rather adopted by the noble Lord who has just spoken. The noble and learned Viscount said then of me:—My noble friend seems to think the present law is sufficient.That is the law dealing with crimes. The noble Lord who moved the Amendment said that I stated that no case that had come before me in my experiences in the South Wales disturbances was a case with which the law could not deal. I did not say anything of the kind. I looked through what I had said, after I had read in the OFFICIAL REPORT what I was alleged to have said. What I did say was that there was no case that I had found, where the law was unable to deal with it, that this particular section would have helped in any particular way. I do not think that the law is sufficient with regard to crimes and that is one of the reasons why I put down the Amendment in my name.
What I complain about this clause is—and I have yet to learn what answer there is to the criticism I made in Committee—that this clause does nothing but repeat in a very slovenly way a description of a Common Law unlawful assembly and re-enact the besetting section of the 1875 Act. It does nothing but that, except for one thing which is completely new. It says, when it defines injury, that'injury' includes injury other than physical or material injury.With a singular and complete volte face that one new bit of the clause is apparently going to be taken out by an Amendment that stands in the name of the Lord Chancellor. I do not know whether the noble Lord is going to press this Amendment to a Division or not. In the form that the Lord Chancellor has thought fit to put the Amendment, it does not seem to me that it would in the least embarrass my position to say that I should go into the Lobby with the noble Lord.
§ THE LORD CHANCELLOR
The noble Lord, Lord Gorell, has moved an Amendment which was argued at great length in Committee and was not then accepted.
It was withdrawn on the promise that the noble and learned Viscount would reconsider the clause.
§ THE LORD CHANCELLOR
At all events we did not come to a conclusion upon it. We did argue the point at considerable length and I must be excused if I repeat part of what I then said. This Amendment, of course, destroys the clause and in our opinion leaves many forms of intimidation without adequate legal remedy. The clause deals with three kinds of abuse. First, the fact, which is undoubted, that, under the cover of what is known as the peaceful persuasion clause of the Act of 1906, great crowds assemble, sometimes outside the works, sometimes on the way to the works, sometimes outside a man's own home, and pretend to be persuading the man to cease from work when in fact the necessary effect of having these great crowds of hostile people there must be to intimidate the man and make it impossible for him, unless he has very great strength and courage, to go to work as he desires to do. Whatever the two noble Lords may say, I am advised by very competent draftsmen, draftsmen with a hundred times more experience than anybody in this House, that the effect of subsection (1) of this clause is to provide a remedy for this abuse. That being so I press the House to accept that subsection.
The second point is this. The word "intimidation" in the earlier Act has been confined to threats of personal violence. As I said before, there are other kinds of intimidation just as base, just as cowardly, just as terrifying as a threat of personal violence. We seek to prevent that kind of intimidation. Even the noble Earl who is not very considerate in his criticism of the clause, even he admits that we do something in the second subsection which I shall propose later to amend. The third point with which we wish to deal is this. We try to prevent watching and besetting a man's home. Under cover of the peaceful persuasion clause, crowds have assembled outside a man's home, not, perhaps in such numbers as I have 767 described but in numbers sufficient and with conduct sufficient to make the ordinary comfort of life in that home impossible. Attacks are made not only upon the man, but upon his wife and upon his children. It is a base and cowardly thing and we are determined to stop it. We are advised by persons whose advice we can trust that the effect of the fourth subsection will be to stop that.
I whole-heartedly disagree with the wild talk about the clause doing nothing. I think it will be a very valuable clause. The noble Lord, Lord Gorell, reminded the House that I had promised to reconsider this clause and I have reconsidered it from beginning to end. I may be wrong in my judgment, but in my judgment I cannot improve on it except by one Amendment which I shall move later on. That Amendment will have a restricting effect and will meet many criticisms made by noble Lords in this House. Except in that respect I can see no need for improvement. The noble Lord said that under subsection (2) we must look into the mind of the person. As he knows, it is an ordinary everyday practice in the Courts to consider whether certain conduct would cause a reasonable apprehension in an ordinary man's mind. Under this subsection the Courts have to see whether there is such intimidation as to frighten a reasonable man of ordinary courage. It is everyday practice in the Courts.
§ THE MARQUESS OF READING
The Amendment which is now before us is one which it would be impossible for us to support. Upon the last occasion we criticised the language of the subsection which is the subject of Amendment. I do not propose to refer to it further than to say that, as a result of consideration, the noble Viscount on the Woolsack has introduced an Amendment which in my opinion is a considerable improvement on the Bill as it left another place. We take the view that, in so far as the clause requires strengthening in reference to intimidation, we should support it. After what has fallen from the noble and learned Viscount on the Woolsack I think we cannot possibly support the Amendment.
My Lords, I should only like to say in answer to the noble 768 and learned Viscount on the Woolsack that in my observations on subsection (2) my objection was not so much to the investigation of a man's mind as to the inconsistency displayed by the Government, which had on several other Amendments taken the line that that particular thing, which under this section they enact shall be done, was impossible. I am still unable to understand—and no answer that I have heard has been given—how it is that great crowds can be assembled and not be dispersed as riotous assemblies. It would seem to me that the word "peaceful" could not possibly apply to great crowds threatening and stoning. Therefore I have taken the view that the present law, as it stands, is sufficient. I am bound to say that I was surprised to hear the noble and learned Viscount on the Woolsack quote to your Lordships the opinions of experienced draftsmen. I have never heard that done. I have always heard the Government take responsibility themselves and place upon your Lordships the responsibility for deciding between what the Government offer and the experience and knowledge of individual noble Lords. I have never heard the fact that the draftsmen of great experience think certain things put forward as an argument.
§ THE LORD CHANCELLOR
I do not wish to be misunderstood. I was answering a question of draftsmanship and I said that the draftsmen gave us certain advice.
I think your Lordships are entitled to act upon the arguments put forward and your individual experience. In view of the discussion and what has fallen from the noble and learned Marquess I shall not press my Amendment to leave out these three subsections because my intention is not to make intimidation easier. If you think, as you evidently do think, that something more is necessary, I shall be quite content with what the noble and learned Earl, Lord Halsbury, proposes. My objection is to what I still consider the vagueness of the language in which it is proposed to enact a criminal offence.
§ Amendment, by leave, withdrawn.
§ THE LORD CHANCELLOR moved, in subsection (1), after "works," to insert "or carries on business." The noble and learned Viscount said: This Amendment 769 is really only a drafting Amendment. The clause quotes the Trade Disputes Act but leaves out these words, which are found in that Act.
Page 4, line 9, after ("works") insert ("or carries on business").—(The Lord Chancellor.)
§ VISCOUNT BERTIE OF THAME moved, in subsection (2), after "family" to insert "or to any of his dependants." The noble Viscount said: My Lords, according to Stroud's "Judicial Dictionary" the primary legal meaning of "family" is not equivalent to "familia," but means children. He said in one case that the word was described as "in itself a most loose and flexible description." He goes on to say "obviously where the person spoken of is single the word family cannot be construed as meaning children." That seems to indicate that illegitimate children or grandchildren would not be included in the word. Under the Workmen's Compensation Act, 1925, Section 4, subsection (1), the illegitimate child or grandchild of a workman is specifically provided for in the way of compensation. Subsection (3) of the same section gives the definition of "member of a family" and seems to include most relations except great-grandfather and great-grandmother, who, of course, might easily be dependants; nor are nephews and nieces included. Therefore, since the word "family" does not seem to cover all dependants, I submit that the words "or to any of his dependants" should be inserted after family.
Page 4, line 25, after ("family") insert ("or to any of his dependants").—(Viscount Bertie of Thame.)
§ THE EARL OF HALSBURY
My Lords, this is an Amendment with which I have nothing to do, but I should like to say that I have had a considerable number of talks with senior members of the police force in a district where these disturbances took place before putting down the Amendment which stands in my name. One of the matters which they specifically mentioned to me over and over again, and one which they suggested might be dealt with if the matter was to be dealt with at all, was the case of a single man living with his sister. There 770 are an enormous number of cases of that kind where the sister keeps house. They are not, I think, specifically dealt with. It seems to me that if the matter is being dealt with at all these cases ought to be dealt with in the same way as the ordinary family is dealt with.
§ THE LORD CHANCELLOR
My Lords, I thought I should like to hear your Lordships' views about this Amendment. I cannot find an adequate answer to it, and I am disposed to accept it, but I must make the reservation that if a different view is taken in another place I must not be said to have given a pledge.
§ THE LORD CHANCELLOR moved, in subsection (2), to leave out "other than physical or material injury," and insert "to a person in respect of his business, occupation, employment or other source of income, and includes any actionable wrong." The noble and learned Viscount said: My Lords, this Amendment is to alter those words upon which so much comment has been made, the words that "injury" includes "injury other than physical or material injury." It was said from several quarters of the House that these words were somewhat too vague. I promised to seek, and I have sought, more definite words. I propose to substitute "injury to a person in respect of his business, occupation, employment, or other source of income, and includes any actionable wrong." Those are all definite things which the law well understands, and I think there should be no difficulty in giving effect to them.
Pap 4, line 26, leave out from the second ("injury") to the end of the subsection, and insert ("to a person in respect of his business, occupation, employment or other source of income, and includes any actionable wrong").—(The Lord Chancellor.)
§ VISCOUNT HALDANE
My Lords, I think the words proposed to be inserted are better from the legal point of view. They do get rid of a certain vagueness but they still leave open a great deal. It remains to be seen what will be the effect.
§ THE MARQUESS OF READING
My Lords, I think the words are a distinct improvement, at, any rate on the vague character of "injury" suggested in sub- 771 section (2). I am not sure that the words carry us much further, but I make no criticism of that because if they do not carry us any further, at least they meet the very legitimate criticism of the vagueness of the language used. I think they do improve the Bill by using words which we understand.
§ THE EARL OF HALSBURY
My Lords, I also ventured to criticise the words "injury other than physical or material injury," and it is with feelings of pleasure that I notice that the present words are confined entirely to material injury. The proposed words are:—injury to a person in respect of his business—Is not that material injury?—occupation—Is not that material injury?—employment or other source of income—Is not that material injury?—and includes any actionable wrong.Is not that material injury? I am delighted with the volte face that has taken place, but when one looks at the beginning of this clause, which started in another place with a reference to boycott and came down to "injury other than physical or material injury" and has now left it at physical or material injury, I suppose, including any of these questions which are well-known to the Court, one cannot but be surprised.
§ THE LORD CHANCELLOR
My Lords, the noble and learned Earl will not even accept what he admits to be a good Amendment without saying something censorious. I will only say that I do not agree with him that all these things are material injuries. Many actionable wrongs are not either physical or material injuries, and they will come within the clause.
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 abstains from doing, wrongfully and without legal authority—
§ Provided always and it is hereby declared that it is and shall be lawful for one or more persons not exceeding three 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 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."773
§ The noble Earl said: My Lords, in moving this Amendment, I would remind you Lordships that on the last occasion I moved an Amendment in somewhat different terms. That Amendment was criticised in two ways, and I have accepted those criticisms and the points to which objections in detail were raised on my earlier Amendment are omitted from the present Amendment. Before going on to the Amendment itself, let me deal with Clause 3 as it stands. The noble and learned Viscount on the Woolsack has said that Clause 3 was intended to deal with three particular matters. The first was crowds assembling which would intimidate a person who desired to work, and the noble and learned Viscount said that it would be a dreadful thing if we were to allow crowds to assemble for the purpose of preventing a man from going to work or of intimidating him. Let me assure the noble and learned Viscount that I have never yet in all my experience found a hostile crowd any difficulty at all in any prosecution. The Common Law with regard to unlawful assembly is perfectly capable of dealing with them, and did deal with them, and I am bound to say that I have never heard any complaint that the Common Law of unlawful assembly, if it gets to the point of a hostile crowd trying to prevent a man going to work or to intimidate him, was any difficulty at all. It was perfectly easy to deal with that kind of case. The point regarding subsection (2) has now been dealt with.
The third point regarded the besetting of a man's house, and we were asked: "How can you stand the idea of crowds collecting round a man's house and besetting him, and his family? Just imagine what would happen if this subsection were not passed. This kind of thing would be allowed to go on, and there would be nothing to prevent it." Let me quote Section 7 of the Act of 1875:—
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. … 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. …
In cases of besetting we never had any difficulty. It was not these points that made trouble, though these are the things in regard to which the noble and learned Viscount says the clause is brought forward to help us. We have never wanted any help in those matters. There are other matters in which we wanted help, and those are not dealt with.
§ It is for that reason that I venture to move this Amendment. Nobody who has any practical knowledge of these intimidation cases and has seen how they come before the Courts would really think anything of the present subsection (3). It would mean nothing to them. I will undertake to say that there is not a superintendent of police in the country who would think that this subsection in any way strengthened his hand, or any Judge who has tried riot cases who would think that it strengthens the law in any way. It merely re-enacts one or two things that the law has already laid down, and there are certain matters that are not dealt with and that we found very great difficulty in dealing with. These are three in number. The first is that the men were not told the law and do not know the law. This clause does not tell them anything. Put it in any man's hand, and the first thing he is told is that something is unlawful and he has got to look up another Act, to find out what is going to happen to him if he does it. We found over and over again that the men did not know the law as they have a right to know it. The experience that we had in South Wales in 1925 and again in 1926 was that, when the men did know the law by experience in any particular district, the disquiet, unrest and rioting were diminished by an astonishing amount.
§ My submission to your Lordships is that it is only fair that the men should know the law. What is the answer to that? The answer that we are given is that no doubt it would be a good thing that the men should know the law, but that, though this is a revising Chamber, we must not revise because, if we do, we get into difficulties about time in another place. Every time any Amendment is brought up at this period of the Session, no matter what its merits may be, we are told that we must not touch the Bill before the House because, although we are a revising Chamber, we might put the 775 Government in a difficulty in another place. We heard this last year on the Electricity Bill and we have heard it over and over again. On the Committee stage the Lord Chancellor said it in terms. He said that there might be a difficulty if any Amendments went down to another place.
§ THE EARL OF HALSBURY
Let me read exactly what the noble and learned Viscount did say. I want to be quite precise, so that there shall be no question about it. He said:—I should like to put to the House this general consideration. If we were to take the course now proposed of striking out the existing clause and putting in the new one—that is, the Amendment that I was moving—
§ THE LORD CHANCELLOR
The noble and learned Earl must not misrepresent me. He said just now that I had suggested that no Amendments should go down. I did not say that, but I did say that it would be a very dangerous thing if this new clause went down.
§ THE EARL OF HALSBURY
I must apologise at once to the noble and learned Viscount. I certainly meant to convey that the noble and learned Viscount was dealing with the point with which I am dealing now. What I did complain of generally was that it was said very often in this House by the Government, upon everything, that at this time of the Session we must not consider Amendments on their merits, because of what would be done in another place. I will continue the passage:—If we 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.Why should it not be at large? Surely the subject is important enough to have it at large.
776 Why, because a Bill is drafted by a particular Government and sent up to this House, should we not have anything to do with altering it one way or another, merely because Parliament might be put into difficulties owing to other people being able to take important questions at large, instead of taking the actual small particular section which the Government has thought proper to draft? We are told in this House, over and over again, that we are a revising Chamber, and that it is not only our privilege but our duty to revise. May I point out that we are dealing with the question whether the men ought to be told fully and frankly what the law is. The noble Viscount said that he hoped at some unascertained date, but as speedily as possible, that a Consolidating Bill might be brought in But that would be dealing not with one particular part of the law affecting trade unions, but with the whole of the trade union law, so far as I know. That is a very ambitious programme, and in the meantime the unfortunate men are not to know where they stand in a Criminal Court. I venture to think that it would be certainly as well that they should have their position told them at once, and that we should leave the hope of some consolidation to be realised later.
I said there were some matters with which we found that the law was not strong enough to deal, and with which this clause does not attempt to deal. One of those matters is this. You have a man coming into a workman's own house when he is away at work. He will sit there with the wife, and under the guise of peaceful persuasion he will really be intimidating the man through his wife. That is very difficult to deal with under the present law. It is very difficult to say that it is besetting. He will say: "I have come to the house, and I will wait until Tom or Bill comes home." The wife has to sit there will him, because she is not physically strong enough to turn him out, or may not know whether she has a right in law to do so. He comes into the house when the workman is away at work, and uses his presence to intimidate the man through his wife. Therefore I have put down my Amendment which says:(vi) against the will or in the absence of any such person remains in the house in which such person resides.777 It is a very real difficulty and a very real cruelty, and there is nothing whatever to deal with it in the present Bill. We have found it happening over and over again throughout the coal district, and surely something ought to be done to deal with the matter.
The next thing which we found was this. If you get the ringleaders appointed as pickets, which you generally do—perhaps two or three, but never more than three—they take very good care that the word goes round, generally at some mass meeting, that picketing is going to take place. Picketing does take place in the morning, and you get a crowd of three or four thousand people, not with the pickets but behind them—perhaps thirty yards or a hundred yards behind them. The pickets say: "We have nothing to do with this crowd." How are you going to deal with that case? We know perfectly well that the thing is arranged, but we cannot prove it. It takes place every day, but you cannot get evidence to prove that it is arranged. The pickets say: "We were peacefully persuading. The crowd was a hundred yards away from us, and had nothing to do with us." Formerly they used to lead their men, but nowadays they have been clever enough to dissociate themselves from the crowd, and the analogy to the highwayman with a pistol, is this: "We are sorry to have to tell you that some ill-minded person has got a cannon loaded up there. It is not our cannon, but I do warn you, as a friend, that it may go off." The effect is exactly the same, and there is nothing in this clause of the Bill which deals with that in the very least.
I have attempted to deal with it in paragraph (vii) of my proposed clause which reads:—(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.My submission is this. Clearly picketing in front of a hostile crowd is not peaceful persuasion, but at the present 778 time the law is not strong enough to deal with it, and there is no section that I have been able to find, and no Common Law principle that I have been able to find, under which these pickets can be convicted, unless you can get definite evidence of some arrangement made between the pickets and the crowd. On occasions we have got evidence of that, and we have got convictions, but they have been few and far between, and, as your Lordships can imagine, it is almost impossible to get direct evidence of some direct arrangement between the pickets and the crowd, when one appears from one side and the other from the other side, and they do not come within a hundred yards of each other. Yet there was no doubt in anybody's mind that the whole thing was a prearranged plan, and certainly in the View of those who took part in the legal proceedings which followed it was a very ingenious and successful plan. It is happening on almost every occasion, and we seldom succeed in connecting the pickets and the crowd.
There is one other thing that I must mention. The present clause leaves Section 2 of the Act or 1906 completely in the air. How is it fair to the men that they should have to interpret how far a section of the Act of 1906, which is not mentioned in the 1927 Act, is affected? Again I have attempted to deal with this. The difficulty of that section was its unfortunate drafting. The original drafting was that "It is declared that it shall be lawful for one or more persons." "One or more persons," without limitation, was readily construed to mean thousands. It sounds a very plausible argument, and it is a very plausible argument. A leader comes to a man and says: "Come and join the crowd." The man says: "Are we allowed in crowds?" He replies: "Yes, here it is in the 1906 Act—'one or more persons.' There is no limitation of any kind; come on." So he joins up with the crowd, and that is within the law. Clearly if the crowd goes off and does some act of intimidation it is not. I ventured during the Committee stage to put in a limitation—an arbitrary number of twelve. From what fell from the noble and learned Viscount on the Woolsack it seemed to me that he thought that twelve were too many. In my opinion it was the largest limit I could possibly deal with. It was put down after the greatest discussion in order to see what was the very 779 largest number that you could possibly say that you could have. I would welcome a smaller number, and for that reason I have in my present Amendment put a limitation of three. I have heard Judges over and over again ask this question of one of the peaceful persuaders—a crowd of some thousands: "If you were going really to persuade peacefully, what was the object of having more than two?" Well, I have put down three.
If the purpose is really peaceful persuasion, can it be argued that they need more than three? Of course, you can ridicule any number by the old argument: "If three, why not four, and if four, why not five?" but if you are to have an arbitrary number at all you must choose some figure, and it has this advantage, that you are giving to the men, who are often easily led and do not give deep thought to the matter, something definite, something that they can understand—"if you are going out for peaceful persuasion it must not be more than three." Does anybody doubt that, if it is peaceful persuasion, three are quite enough? For these reasons I submit that the clause in the Bill does not do anything that helps the present law, that there are definite matters on which the present law requires help, and the Amendment I have put down does its best to help the law on the matters in regard to which experience has shown that it needs help.
Leave out Clause 3 and insert the said new clause.—(The Earl of Halsbury).
§ THE LORD CHANCELLOR
My Lords, our most severe and implacable critic has at last turned author, and we are now in a position to examine what kind of clause he would like to be inserted to-day in this Bill. I ask your Lordships quietly to consider what it is that he is asking us to accept. First, he wants to re-enact in the first five subsections of his clause word for word the existing law. I have not said one word against a proper Amendment of this Bill, but I did say, in the words which the noble Earl has quoted, and to every word of which I adhere, that it would be absolute folly at this stage of this most contentious Bill to endeavour to put into the Bill all these items of the 780 existing law, because, if you do so, every one of them is open to lengthy discussion in another place. In every respect members who opposed the Bill will endeavour to strengthen, or probably to weaken, the existing law in respect of intimidation, and they might consume days or weeks of time in that process, unless they were stopped by some means or other.
I do say, as one who has been for, I am afraid, very many years a member of one or other House of Parliament, that that would be a very foolish course to take, and it is calculated—I am sure it is not "designed," but it is "calculated"—to be wholly fatal to the Bill. It would be a course most hostile to those who have laboured day after day and week after week through acres of discussion to pass this measure into law if, at this stage, a member of your Lordships' House, wherever he may sit, should persuade you to take a course which may be fatal to the Bill, and would, at all events in my opinion, make it necessary to postpone the discussion of the Bill until the adjourned Session later in the year. That is the point which I make with regard to the first five paragraphs of the noble Earl's clause. I think that everyone who has experience of Parliamentary procedure and of the wiles of opponents of Government Bills would agree with me in that.
Then the next thing he proposes to do, by his paragraph (vi), is to enact that every person who, with a view to compelling anybody to work or not to workagainst the will or in the absence of any such person remains in the house in which such person resides. …shall be liable to a penalty. Now, is that really wise? If he remains against the wish of the occupant of the house, of course, he is committing a trespass, which may be dealt with, but if he comes there in the absence of the occupant of the house and remains there for the purpose of persuading, is it really wise to lay him open to a penalty? How are you to know why he is waiting, what is in his mind, and what he intends to do, and how are you to prove that he does not remain there for a perfectly proper purpose? It would be monstrous to inflict a penalty on a man who has done no more than that.
Now let us see how the noble Earl would deal with the trouble caused by 781 crowds—a trouble which I have already sufficiently described to the House. The noble Earl says that our clause is perfectly useless, and that the present law is in most cases enough. The noble Earl speaks with a consciousness of omniscience, which I am sure will desert him as his experience grows, but, after all, he does not know of every case in this country. He has not open to him all the reports that we have of police authorities up and down the land, although he may have been engaged in a number of cases—I will take his word for that. At all events, there are cases in which he has not been engaged, and it is evident to us that the present law cannot be administered so as to stop this particular abuse. I think I know why. The noble Earl quoted from the Act of 1875 about watching and besetting. Of course, that is to-day the law, but with this qualification, that since that Act there has been passed the Trade Disputes Act of 1906 containing the "peaceful persuasion" clause. It is now found that under cover of peaceful persuasion these crowds do gather outside a house and as they all pretend to be pickets they canot be dealt with under the Act of 1875.
Whatever the noble Earl may think his experience shows, our experience tells us, and the information we have proves to us, that the law is not sufficient as it stands and ought to be strengthened. We have said how we propose to strengthen it. What does the noble Earl provide instead by his Amendment? He provides that anybody who approaches or accosts another person in any street or place to persuade him to work or not to work 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 the other person, is to be deemed guilty of a breach of the peace. That means that if a man sees a friend in the street and wants to speak to him, either to persuade him to strike or to persuade him to work, he cannot do that without looking round, using his eyes and his ears, counting all the people who are within sight or in hearing, or in proximity to them, finding 782 out whether all those people are strikers or not and whether they number more than twelve—
§ THE EARL OF HALSBURY
I do not like to interrupt the noble and learned Viscount. I am quite certain he will agree that the word "assembly" is a very well-known word in the Law Courts. And this is not "in the presence of twelve people," it is in the presence of an "assembly" of twelve or more persons on strike, and the word "assembly" connotes the fact that they are assembled together for some common purpose.
§ THE LORD CHANCELLOR
You may see twelve men at the bottom of the street, but you do not know what they are there for and you have to count them and find out whether they are strikers or not. If, after having done all this, the man accosts or approaches the person to whom he Wishes to speak, he then must keep his eyes open and his ears open lest, while he is talking to him, some assembly such as this should come together. I hold that to be a ludicrous proposal for dealing with the situation we desire to provide for in this Bill Then comes the proviso, which is exactly the existing Act except that the pickets are limited to three. We have considered more than once whether we should limit the pickets in number and upon the whole we decided not to make that proposal. Take the number three. That is a moderate number, but there are cases where three pickets outside great works in which there are thousands of men employed would be insufficient and to limit them to three would be an unfair limitation of the right of peaceful persuasion. There are other cases where, of course, three pickets would be more than sufficient if they conducted themselves in the manner I have described.
The last proposal of the noble Earl is that in the case of any offence against this clause the accused should have the right, if they object to be tried by a court of summary jurisdiction, to go elsewhere. I think that is unwise. In the midst of a great strike, if offences are committed, you want to deal with them promptly and at once and the best way to do it is that which we propose. A man may go before the magistrates and be dealt with there, subject of course to his right of appeal, and if you give every man who is charged the right to 783 say he will go before a jury elsewhere months after, you will not get the men dealt with promptly so as to be an example to others. I think, therefore, it is a very unwise proposal. It is for your Lordships to judge, but my deliberate opinion is that the clause is not half so strong, not a quarter so strong, as that in the Bill, and that to adopt it instead of ours would be most injurious to the Bill, both as to the prospects of passing it in a reasonable time and as to its value if and when passed.
§ THE EARL OF HALSBURY
My Lords, I seem sometimes to be singularly fortunate. I think I was very fortunate this evening in the latter remarks that fell from the noble and learned Viscount on the Woolsack. He criticised my second subsection and said that it would be most unwise that anybody should have a choice of going to Assizes. He advocated that they should be dealt with summarily and said that it would be most unwise at this stage of the Bill to insert this subsection. My first reason for moving this Amendment was that the men did not know the law. The noble and learned Viscount on the Woolsack seems to be of the opinion that this is a new enactment of mine. It is a re-enactment of the present law in Section 9 of the 1875 Act without one word altered.
§ THE LORD CHANCELLOR
There is a misunderstanding. The maximum penalty for breach of subsection (3) is imprisonment for three months and that would not give a right to a jury.
§ THE EARL OF HALSBURY
I do not quite follow that because subsection (1) of the present clause in the Bill makes it unlawful for one or more persons, acting on their own behalf, to attend at or near a house or place where a person resides and gives no penalty at all. It says that is to be deemed to be a besetting
§ within the 1875 Act. When you come to the 1875 Act it is an Act under which you are going to try the person and you find my subsection (2) appears there as Section 9 without one word altered. So if you are going to proceed against a man under subsection (1) of the present clause of the Bill you have to give him the choice as to whether he is to be tried at Assizes or whether he is to be tried summarily. I certainly understood the noble and learned Viscount to say that he thought it would be most unwise to give that choice to a man. But it is already given to him. Have I not made out some case that it would be a good thing if the law was made clear and that the men who are to be tried should know what offence they are guilty of, what they have to refrain from doing, and what they may do? The noble and learned Viscount was good enough to say that I had had some experience in regard to riots and I may say that I have never seen one yet which would not be an unlawful assembly. I do not think the noble and learned Viscount can have any doubt that a crowd collected round a, man's house in such numbers as to cause that man a reasonable apprehension is an unlawful assembly. I have never yet known a case, and the noble and learned Viscount has certainly not suggested one, that the law could not deal with perfectly well. If the noble and learned Viscount suggested it, the information he has must be of a totally different character to what has fallen to my lot. At any rate I suggest that the Amendment I have moved would do something to strengthen the law and help the men. In my view the present Bill does nothing.
§ On Question, Whether Clause 3 shall stand part of the Bill?
§ Their Lordships divided: Contents, 83; Not-Contents, 10.785
|Cave, V. (L. Chancellor.)||Shaftesbury, E. (L. Steward.)||Lucan, E. [Teller.]|
|Salisbury, M. (L. Privy Seal.)||Beauchamp, E.||Malmesbury, E.|
|Bradford, E.||Mar and Kellie, E.|
|Chesterfield, E.||Mayo, E.|
|Northumberland, D.||Cranbrook, E.||Midleton, E.|
|Sutherland, D.||Doncaster, E. (D. Buccleuch and Queensberry.)||Morton, E.|
|Wellington, D.||Onslow, E.|
|Graham, E. (D. Montrose.)||Plymouth, E. [Teller.]|
|Bath, M.||Jellicoe, E.||Powis, E.|
|Reading, M.||Lindsey, E.||Scarbrough, E.|
|Stanhope, E.||Danesfort, L.||Leigh, L.|
|Stradbroke, E.||Darling, L.||Merrivale, L.|
|Westmeath, E.||Daryngton, L.||Mildmay of Flete, L.|
|de Mauley, L.||Monteagle, L. (M. Sligo.)|
|Cecil of Chelwood, V.||Desborough, L.||Newton, L.|
|Churchill, V.||Dynevor, L.||O'Hagan, L.|
|Elibank, V.||Ernle, L.||Queenborough, L.|
|Inchcape, V.||Fairfax of Cameron, L.||Ranfurly, L. (E. Ranfurly.)|
|Novar, V.||Gage, L. (V. Gage.)||Saltersford, L. (E. Courtown.)|
|Peel, V.||Gisborough, L.|
|Sumner, V.||Greenway, L.||Saltoun, L.|
|Younger of Leckie, V.||Hampton, L.||Sandhurst, L.|
|Hanworth, L.||Sandys, L.|
|Askwith, L.||Hare, L. (E. Listowel.)||Somerleyton, L.|
|Berwick, L.||Hayter, L.||Stanmore, L.|
|Biddulph, L.||Hindlip, L.||Suffield, L.|
|Brancepeth, L. (V. Boyne.)||Howard of Glossop, L.||Teynham, L.|
|Clanwilliam, L. (E. Clanwilliam.)||Kintore, L. (E. Kintore.)||Wavertree, L.|
|Kylsant, L.||Wharton, L.|
|Cullen of Ashbourne, L.||Lawrence of Kingsgate, L.||Wittenham, L.|
|De La Warr, E.||Arnold, L.||Hunsdon of Hunsdon, L.|
|Halsbury, E. [Teller.]||Banbury of Southam, L. [Teller.]||Parmoor, L.|
|Ruthven of Gowrie, L.|
|Falkland, V.||Gorell, L.||Sempill, L.|
On Question, Amendment agreed to.
§ Resolved in the affirmative and Amendment disagreed to accordingly.
§ 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.
THE LORD CHANCELLOR moved, in subsection (1), to leave out "thereafter" and insert "after the thirty-first day of December, nineteen hundred and twenty-seven." The noble and learned Viscount said: My Lords, this Amendment is little more than drafting. It is intended to relieve the trade unions from a doubt that may arise. The Bill provides in Clause 4 that it shall not be lawful to require any member of a trade union to make any contribution to its political fund unless, at some time after the commencement
of the Act and before he is first thereafter required to make such a contribution, he has delivered a notice in writing of his willingness to contribute. Then, in subsection (4), there is the provision that
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 fund of the trade union as if this Act had not been passed.
Obviously, comparing those two provisions, it would be right that we should take out the word "thereafter" and insert the words I propose.
Page 5, line 1, leave out ("thereafter") and insert ("after the thirty-first day of December, nineteen hundred and twenty-seven").—(The Lord Chancellor.)
§ 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 787 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:
§ (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.
LORD ASKWITH moved, in subsection (1), to leave out "membership is" and insert "members and officers are." The noble Lord said: My Lords, this Amendment deals with the regulations as to organisations of which established civil servants may be members. The Bill says that there are to be regulations prohibiting such 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.
My Amendment is to substitute for the words "of which the membership is confined to persons employed by or under the Crown" the words "of which the members and officers are confined to persons employed by or under the Crown." It does not seem to me that the clause, as worded, carries out what was intended. That is the criticism, I think, which Lord Arnold has directed against many of the clauses of this Bill.
§ The object of the clause was stated by the Lord Chancellor to be that the whole membership of the organisation must be confined to persons employed by or under the Crown. The object was also described in vivid and expressive language by the Chancellor of the Exchequer, when he stated that this clause was required by "timely action to correct unwholesome growths," and that the State was entitled to demand from civil servants a particular relationship and to secure faithful service, in all circumstances, in the hour of need. He added, also, that it would be a scandal if we had members of the Civil Service taking a prominent part in controversial politics. Then he went on to deal with the question of civil servants being able to employ a 788 secretary chosen from outside the Civil Service and to pay him what they liked and allowing that secretary to become a Member of Parliament. It is obvious that the officers of the union are the important persons and the rank and file follow them in what they do. Yet by the clause as it is worded at present the members of the rank and file are the persons who are kept within these rules and are subject to certain penalties while the officers and leaders go unscathed and may belong to what they like, even to organisations of a very peculiar character.
Some of the leaders have indicated that they intend to try to evade the provisions of this Bill as soon as possible and have suggested that there is nothing to prevent individual civil servants from subscribing to political funds. An article published in the organ of one of the unions concludes with these words:—
The gross abuse of power exercised by the present Government will bring swift and merciless punishment for those who have so abused the trust of the electors; and we shall look to members of the U.P.W. [that is, the United Postal Workers] to find ways and means of taking full part in the coming battle between the vested interests and the rights of the workers.
One of these outside secretaries has recently been invited, and has gone, to Russia. It might be said that it would be unreasonable to confine civil servants to appointing secretaries from among their own number. As to whole-time secretaries, no other Whitley Council has whole-time servants. Two half-timers or four quarter-timers could surely be found in the Civil Service and could do the work quite as well. In fact, they would represent the workers with much more knowledge of the traditions and inner working of the Civil Service than is the case when an outsider is brought in. It might be objected that that would mean the State paying for a trade union secretary, but when these Whitley Councils are set up by the State they are more or less official bodies and therefore to that degree the State might to a certain extent pay their salaries.
§ I do not know whether such an Amendment would be considered a breach of privilege, because it has been turned down once. I wonder whether the Chancellor of the Exchequer could make any suggestion of any regulation under which something could be done to stop this sort of thing or whether the wording of the 789 Bill, which is not very clear, could be altered so as to prevent these mischievous tendencies, or what the Chancellor of the Exchequer called this "sort of poison," going on. The Bill says that civil servants' organisations shall not be affiliated with any organisation whose membership is not confined to persons employed by or under the Crown, and that their own organisation is not to be associated directly or indirectly with any political Party or organisation. Whether the word "indirectly" would bring in the opportunity of putting a stop to the mischievous acts of secretaries I hope the Lord Chancellor will be able to tell us. I move this Amendment, in short, because it is unfair to hamper the rank and file, to put them under penal clauses, while allowing the leaders to go unscathed and unhampered, because the clause is not clear, as it stands at present, and because it would appear to be contrary to the principles enunciated by the Lord Chancellor and explained so clearly by the Chancellor of the Exchequer.
Page 6, lines 41 and 42, leave out ("membership is") and insert ("members and officers are").—(Lord Askwith.)
§ THE LORD CHANCELLOR
My Lords, the object of this Amendment is to secure that the officers of all Civil Service organisations shall themselves be civil servants. Everything that the noble Lord who moved the, Amendment has to say on this subject carries great weight, and I do not for a moment deny that there is force in his argument. He seeks to complete the divorce of Civil Service organisations from politics. The question involved in the Amendment caused us considerable anxiety at one time, and in drafting the Bill very careful consideration was given to the point. It was decided not to forbid Civil Service associations to have secretaries and other officers who are not civil servants, and I think the main reasons were two. The first is that, if you did forbid this arrangement, you would have civil servants who were paid by the State but who would be employed for a large part of their time, if not for the whole of their time, in serving the association and not doing the work of the State. That, of course, is undesirable. The second reason is that it appears to be clear that some of the larger associations—take, for 790 instance, the Union of Post Office Workers to which the noble Lord referred, which has a membership of about 90,000—do require the services of whole-time officers, and to forbid them to take those officers from outside the Civil Service would, of course, mean a very considerable handicap upon those associations.
This matter was debated in another place, and my right hon. friend the Chancellor of the Exchequer said definitely that he could not accept an Amendment of this character, particularly as the effect of it would be at once to turn out of office a number of secretaries and other officials who are now employed, and have been for many years employed, in that capacity. For those reasons I do not feel able to ask your Lordships to accept the Amendment. One can only hope that as the organisations themselves—not the Whitley Councils alone, but the Civil Service organisations—become non-political and are dissevered from all political organisations, they will keep a firm hand on their officials and will insist on the work of those officials being really work for the association and not work for political or Party ends. As to the in regulations to which the noble Lord referred, I would rather not prophesy the form that they may take If the clause were amended as the noble Lord suggests, regulations would be required prohibiting these organisations from having secretaries or officers who are not civil servants. On the whole, after very careful consideration, I do not feel able to ask the House to accept this Amendment.
§ LORD ASKWITH
My Lords, I do not press the Amendment, but I am afraid that the Government are laying up some trouble in this matter.
§ Amendment, by leave, withdrawn.
THE LORD CHANCELLOR moved to leave out subsection (2) and insert—
(2) Subject as hereinafter provided, any established civil servant who contravenes the regulations made under this section shall be disqualified for being a member of the Civil Service:
Provided that in the case of a first offence a civil servant shall forthwith be warned by the head of his department, and the said disqualification shall not take effect if
within one month after such warning the civil servant ceases to contravene the said regulations.
The noble and learned Viscount said: My Lords, this Amendment arises out of a discussion in Committee. Your Lordships may remember that the second subsection of the clause provides that:—
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.
It was pointed out that this was a somewhat drastic provision, and that if a man committed a single offence it was rather hard that he should have no chance of his case being considered and of his being pardoned or reinstated; and I promised to consider the matter. I am now proposing an Amendment the effect of which is that, in the case of a first offence, the offender is to receive warning, and that if within a month he ceases to be connected with a political association and observes the regulations he may remain, but otherwise he will be disqualified.
Page 8, lines 6 to 9, leave out subsection (2) and insert the said new subsection.—(The Lord Chancellor.)
§ 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 for 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, in subsection (1), to leave out "or other public." The noble Lord said: My Lords, on the Committee stage I asked the meaning of the words "or other public authority." The noble and learned Viscount on the Woolsack told us that it was necessary to have some words of that kind, because there were bodies that had public functions but had no power to levy rates and were not local authorities. It was pointed out that, as the clause stands, there is no definition of these other public authorities and that the words are completely open. The noble Lord, Lord Danesfort, pressed the noble and learned Viscount to define in some way or other what was meant by "public authority." He pointed out that very serious restrictions would be imposed on these authorities by this clause, and that it was reasonable that it should not be left to include every public authority of every kind. The noble and learned Viscount promised that lie would consider the point. He also promised to consider a point that I raised as to the position of local education authorities and their employees, the teachers. It is really in order to give the noble and learned Viscount on the Woolsack an opportunity to tell us how far those points can be met that I again put down the Amendment at this stage.
Page 8, lines 23 and 24, leave out ("or other public").—(Lord Gorell.)
§ THE LORD CHANCELLOR
My Lords, I did consider the advisability of defining public authorities, but I found on inquiry that there really was no difficulty about the matter, because these words have been used in Acts of Parliament for a good many years past without definition and they have always been understood as meaning authorities having public functions—such as port, harbour or dock authorties, and so on—but not having rating powers. No question has ever arisen as to the 793 meaning of the words. On the whole, therefore, I thought it unnecessary to introduce a further Amendment by adding a definition. With regard to the education authorities, I did consider the point raised by the noble Lord and, indeed, discussed it with my noble friend the President of the Board of Education, and we decided that it was not necessary to deal with it. There is of course nothing to prevent a teacher from being a member of the National Union of Teachers. Assuming this body to be a trade union, the only effect of the clause is that educational authorities must not make it a condition of employing a man that he shall be or shall not be a member of that union. I do not myself see why they should make any such condition.
§ LORD DANESFORT
I do not in any way propose to impugn the authority of the Lord Chancellor, but might I ask him whether it is possible that where the words "local or other public authority" occur in other Acts there may be something in the context which shows that they are only there intended to refer to authorities with rating powers? Certainly in this particular clause, as I read it, there is nothing in the context to limit the words "public authority" to a public authority with rating powers. Might I ask, for instance, whether the phrase "public authority" would include such public bodies as the Thames Conservancy or the Port of London Authority, or many of those other dock or port authorities which in a sense are public authorities, but which do not have strictly rating powers. If there be a doubt about it, might it not be desirable at a later stage of the Bill to put in words showing that this clause relates to public authorities which have rating powers?
§ THE LORD CHANCELLOR
I do not think there is anything in the context of the Statutes I had in mind, like the Workmen's Compensation Act and the Unemployment Insurance Act, to help in construing these words. I think they stand by themselves as they do in this Bill. I think the authorities which the noble Lord, Lord Danesfort, has mentioned, are public authorities and my feeling is that we should not create difficulties, and that the words proposed to 794 be left out should be retained in the clause.
§ On Question, Amendment negatived.
THE LORD CHANCELLOR moved, in subsection (4), to leave out "hinder or prevent the discharge of the functions of the authority," and to insert "cause injury or danger or grave inconvenience to the community." The noble and learned Viscount said: My Lords, you will remember that subsection (4) of Clause 6 provides that
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. … will be to hinder or prevent the discharge of the functions of the authority, he shall be liable
to fine or imprisonment. It was considered that those words were very wide. The only object of the subsection was to prevent damage to the public, and having considered the matter I propose, instead of "hinder or prevent the discharge of the functions of the authority," to substitute the words "cause injury or danger or grave inconvenience to the community." I hope that that will meet the criticism which was raised, and beg to move the Amendment.
Page 9, lines 9 to 11, leave out ("hinder or prevent the discharge of the functions of the authority") and insert ("cause injury or danger or grave inconvenience to the community").—(The Lord Chancellor.)
§ 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.795
LORD ARNOLD moved to add the following proviso:—
Provided that no action by the Attorney-General or the Lord Advocate shall be taken under this section in the case of a strike within the trade or industry in which the strikers are engaged so long as the strike is confined to that trade or industry.
The noble Lord said: My Lords, it is scarcely worth while moving or arguing this Amendment, because it is virtually impossible at this late hour to address any close or lengthy argument to your Lordships upon an Amendment of this nature. Yet I should like to say something about it, because I venture to think it is important, and meets a point in connection with this clause which is not sufficiently appreciated. The point is not the same as that which was discussed on the Amendment to Clause 1. I want briefly to touch upon matters which are left in great obscurity. This Amendment would confine the operation of the clause to a General Strike or nearly all sympathetic strikes. It would mean that the Attorney-General would have power to apply for an injunction in those cases.
§ I want to make it clear that we are against the whole clause, but I know that the Government would not delete the whole clause. We think, however, there is a strong case for accepting this Amendment, because if it were accepted strikes in single industries would be exempted from the operation of the clause. Our contention is that whatever may be said for this power in the case of a General Strike—we do not, of course, agree to that—certainly no such case can be made out for an injunction in the case of a strike in a single industry. Our view (and I do not think it is sufficiently understood) is that this injunction, if moved for by the Attorney-General, will virtually kill the strike. I do not think the Lord Chancellor would dispute that. He seemed indeed, on some of his words last week, to agree that an injunction would stop the strike. Labour is naturally apprehensive about that. The Lord Chancellor suggested that it would not be easy for the Attorney-General to get an injunction. That is not our view. We think that the Attorney-General, armed with his authority, will be able to get an injunction in the vast majority of cases without the slightest difficulty. 796 The Lord Chancellor said that he would get it only if there were a very clear case. Our contention is that that begs the whole case, because nobody knows how far Clause 1 may be extended. It now goes far beyond what was originally said or anticipated, and therefore there is great anxiety about this power being given to the Attorney-General, which might be used, as it has been used in America over and over again, to stop a single strike in a single industry.
§ Whatever may be the view of the Lord Chancellor that is not the last word, because the Bill will have to be construed by the Courts, and we feel that it is a serious matter. I do not want to go into the whole question of the relations between the Bench and the trade unions during the last fifty years. It is a very big matter, and I will not discuss it, but I have here a quotation from Sir William Robson, Solicitor-General in the Liberal Government of 1906, which I could bring forward to justify the very grave fears of the trade unions as to their position in the Courts. This clause does and will arouse the bitterest resentment, and it will be regarded, and I think rightly, as a power in reserve to kill strikes. It is another case of screwing down the safety-valve, and I think it is a very serious matter. I beg to move my Amendment.
Page 9, line 27, at end insert the said proviso.—(Lord Arnold.)
§ THE LORD CHANCELLOR
My Lords, I could not possibly agree to this Amendment. The effect of it would be that a great union, like that of the railwaymen, or some other, would be entitled to strike—probably, they would say, for some industrial reason partly, but really for some political reason—for nationalisation, or for a treaty with Russia, or for the withdrawal of our troops from China. The Bill would not apply in the least to a strike within the trade, and ought not to. One of the objects that we have in view is to restrain a political strike of that kind, to provide that, if it takes place, then the special protection given to the union by the Act of 1906 shall not be at its disposal.
§ LORD ARNOLD
My Lords, there is another Amendment of great importance 797 which it is desired to discuss, so I will not take time in replying to the Lord Chancellor, but what he has said again carries this Bill very much beyond what was originally stated. There was no kind of statement of that sort in the first place, and I think the position in which we are placed is extremely unsatisfactory and also, we hold, extremely unfair.
§ On Question, Amendment negatived.
§ 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—
(a) the expression "strike" means the cessation of work by a body of persons employed in any trade or industry acting in combination, or a concerted refusal, or a refusal under a common understanding of any number of persons who are, or have been so employed, to continue to work;
§ VISCOUNT INCHCAPE moved, at the end of subsection (2) (a), to insert "or to accept employment." The noble Viscount said: My Lords, I seldom attempt to speak in your Lordships' House, and I will only detain you for a very few minutes. If I may venture to say so in the presence of noble Lords opposite, I regard this Bill as it came from another place as a charter not only for the employers but for the employed. When it goes through your Lordships' House, as I hope it will without any material alteration, I believe, indeed I am convinced, that it will permit the industry of this country to be carried on without unrest raised by agitators and Communists to which it has been subjected for years, and which has brought incalculable hardship to the workers and their families and the loss of millions to the Exchequer. It will give every man in the country the right to work, and intimidation will be a thing of the past. It will make for freedom, and will give every citizen by his industry, by his thrift, by his brains, and by his loyalty to the King, the opportunity to rise to any position under the Crown.798
§ Clause 8, as it reached your Lordships' House, contained these words, "or to accept employment." An Amendment was agreed to by your Lordships to delete those words. I am afraid this might involve the country in grave difficulty, and I will tell your Lordships why. The crews of foreign-going merchant ships under the law have to be discharged on their arrival at British ports. They become absolutely free. Therefore in declining to take up their occupation again they will not be considered to be strikers if the words "or to accept employment" are left out. Communists may get hold of them, and, although it is perfectly true that Mr. Havelock Wilson the President of the Sailors' and Firemen's Union, to his great credit be it spoken, put his foot down, and prevented his union from joining the General Strike, Mr. Havelock Wilson is an old man, he is in very had health, and we do not know who will succeed him. If his successor is a Bolshevik or a Communist, we may find the whole shipping trade of the country held up by some agitator if the words "or to accept employment" are left out of the Bill. If the Bill becomes law without those words it will still be possible to starve the country to achieve a political object, and the purpose of the Bill will be defeated.
§ Although it will be illegal for transport workers and railwaymen to strike for the purpose of attaining a political object, it will not be illegal for seamen to refuse employment. By inducing the seamen not to re-engage, practically every ship on arrival in this country could be indefinitely held up, and the action of those who brought about this situation would not be illegal, and could not be prevented. A strike of the transport workers and railwaymen would be unnecessary. The nefarious object of the extremists would be achieved by a cessation of work on the part of seamen, although it might not be achieved quite so rapidly. This cannot be the desire of the Government. I think that possibly the effect on the industries of the country caused by the deletion of these words may not have been fully appreciated when the Bill was considered in Committee. I suggest with great diffidence to the noble and learned Viscount on the Woolsack that the words 799 "or to accept employment" should be restored to the Bill.
Page 9, line 41 after ("work") insert ("or to accept employment").—(Viscount Inchcape.
§ EARL BEAUCHAMP
My Lords, I think it is important to point out at once the rather unusual course which is suggested to your Lordships' House by the noble Viscount. This is an Amendment which was made during the Committee stage, and the speech to which we have just listened would have been very appropriate on that occasion, and would no doubt have gone far to influence votes in your Lordships' House on that occasion. That would have been the proper time to make it. It is very unusual to ask your Lordships' House to restore words on Report which have been taken out during the Committee stage. It is also very inconvenient. And there are special circumstances in connection with this particular Amendment. I might almost call it an historic Amendment, because it was by this Amendment, and this Amendment alone, that we secured a Report stage and the discussion that has taken place this afternoon. If the one Amendment which was agreed to in Committee in order to secure a Report stage were defeated on Report, really the proceedings of this House would tend to become almost farcical.
I think we may appeal fairly to the noble and learned Viscount on the Woolsack who, speaking in Committee, said that if the House agreed—as it did agree—he was disposed 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 he said at that moment. I ask the noble and learned Viscount to support me in those circumstances in opposing the Amendment, in order that we may, in accordance with what he himself said, discuss it again, if necessary, when this Bill returns from another place.
§ THE LORD CHANCELLOR
My Lords, I have felt great doubt as to what advice I should give on this Amendment. It is, as the noble Earl has said, unusual to reverse on Report what has been done in Committee, but it is not unknown. It has happened in very 800 many cases in another place. I assented to the exclusion of these words with doubt, as I said. I pointed out that in order that these words might operate there must be a concerted refusal to accept work, and I said, in the words which the noble Earl has quoted, that if another view were taken in another place I should not be bound. I also take this credit to myself, that I was greatly tempted to accept this Amendment by the prospect of ensuring to noble Lords on the Opposition Benches what they much desired—namely, a Report stage of this Bill. I think the Report stage has proved very fruitful, and, has resulted, if I may be allowed to remind them, in the acceptance of a whole number of Amendments which I myself put on the Paper. So, in view of all those facts, I feel much freer than I should usually feel about taking whatever course seems to me right on this Amendment.
I am bound to say that the facts put forward by my noble friend, who has such great experience of the shipping world, had not been brought before me, or I think before any one, when this Bill was in Committee in this House. They are new to me and raise considerations of great importance. It appears front what the noble Viscount has said, that the seamen only engage for one voyage and that when they come home their engagement is at an end. If that be so then, under the definition as it stands, without these words they could refuse to re-engage and yet there would be no strike within the meaning of this Bill, and the Bill would have no operation. I agree that is a very serious consideration. If the whole body of seamen refused employment, as the noble Viscount said, it would paralyse the trade of the country and occasion grave injury to our import and export trade. That is a very serious position. I believe there are other industries of which the same may be said. On the whole I am disposed to take the unusual course to which I have referred and to say, without consultation, that I am prepared myself to assent to this Amendment. What is the alternative? That we should send now to the other House for their approval an Amendment which many of us do not think a right Amendment. There would be a great discussion in another place and the Amendment which had been 801 accepted in Committee would probably not be accepted by the other House. It would then come back to us and we should be asked to do, after a long discussion, what we can do to-day, that is restore the Bill to its original position without the Amendment. Upon the whole I think the right course would be that we should agree to the Amendment of the noble Viscount.
§ LORD ARNOLD
My Lords, the position with which we are faced is a very extraordinary one, almost, I should think, without precedent. The Lord Chancellor accepted the Amendment in Committee to delete these words, if I may say so, extremely readily and while I was speaking he seemed to indicate that it was unnecessary for me to go on because the case was so strong. He got up and accepted the Amendment with What I think I may say was alacrity. He made a proviso about another place, but we did not attach any importance to that. In any case that is not what he is doing now. Now he is putting back the words, not in another place but in this place. The noble Viscount opposite could have come here during the Committee stage and could perfectly well then have put the points which he has put to-night. I may say quite frankly that I am not at all impressed by his case of the shipping industry. In any case the shipping industry is only one industry.
What I want to point out is that this Amendment is of the most far-reaching character. It would apply to all the industries of the country. Further, the case which was put by the noble Viscount cannot be supported by any experience in the past. This is a new provision in the law. For the last fifty years there has not been this provision and the calamity he has envisaged has not occurred. His position is a weak one. What do these words mean? Up till now a strike has meant the refusal of a body of men to work in a particular employment. That is, broadly, what a strike has meant. With these words it will mean that if men refuse to accept employment of whatever kind and at whatever wages—there is no stipulation whatever on those points—it is a strike and it may be illegal under this Bill. That is what you are doing in again putting into the Bill these words. Men may be locked out and when they are locked out their contracts are ter- 802 minated. I think I am right in saying they have then no contractual relations whatever to their former employers. Yet under these words their employers can offer them half wages, double or at any rate much longer hours, and if they refuse to go back on those conditions it is a strike.
I say emphatically that is a form of serfdom. It is a very serious thing that your Lordships are now asked to do. As a matter of fact, the words as they stand would apply not only to men who were in a particular industry, or in a particular works, but they would apply also to other men who were not in those works if they refused to accept employment. On these words, for instance, if the agricultural labourers of Norfolk struck in protest against the repeal of the Agricultural Wages Act, it would be illegal for the labourers of Lincolnshire to refuse to go to Norfolk to work in their places on being requested to do so. That is implicit in these words and it surely is a very serious matter. Take the position of the doctors. I should not like to be certain about this, but at any rate it is quite good enough for an illustration and true enough for an illustration. I believe the doctors who are members of the British Medical Association can be brought within the ambit of this Bill with these words in it. For instance, if the Government proposed to reduce very largely their remuneration as panel doctors, if it were proposed to halve it—there are no conditions or stipulations of any sort—and the doctors then refused to accept employment, that might bring them within the ambit of this clause with these words in it.
Do your Lordships really mean that? This is reversing the Common Law of the country for the last one hundred years. To put in these words "or to accept employment" is one of the most vital things that could possibly be done in connection with this Bill. I submit that the matter has not been properly thought out and not been properly discussed, and that it is a very serious thing to go back on what was decided, as I understood it, last week, especially when no real case for doing so has been made out.
My Lords, I rise only to say one word. The noble and learned 803 Viscount on the Committee stage himself went further than he had been asked. He had been asked to consider the point which was raised and he said distinctly he would go further and would accept the Amendment. Then he added particular words "only reserving this right." We have had a good deal of argument during the course of the Bill as to the word "only." It seems to me that you could hardly have had a more explicit pledge than that given by the noble and learned Viscount. Then a noble Viscount comes down with his great experience of the shipping industry, and gives an instance of what might happen in an industry where the conditions are rather peculiar in that the men engaged in that industry are employed from voyage to voyage. On the strength of the argument a definition which is to apply to all industries in the country is to be changed from the pledge given by the noble and learned Viscount on the Woolsack. I do consider that is a very serious thing. The proper course would be, as the noble Viscount did not move this on the Committee stage, that we should leave it as it now is, and if it is thought fit to make a special exception in the case of the shipping industry that should be done either on the Third Reading of the Bill or, more properly, in view of the pledge of the noble and learned Viscount, in another place.
§ THE LORD PRIVY SEAL (THE MARQUESS OF SALISBURY)
My Lords, I think I must protest on behalf of His Majesty's Government against this misuse of the word "pledge." The noble Lord, who has just sat down, accused my noble and learned friend upon the Woolsack of a breach of a pledge. That appears to me to be a complete misuse of language. What my noble and learned friend did on Committee stage—largely at my own instance if the truth must be told—was to consent to this Amendment for the very special reason of securing a Report stage for your Lordships' House. He thought, and I thought, that on a Bill of this importance it was only what the House had a right to expect, that there should be a Report stage. As he said just now, the course we took has been abundantly justified by the event. This was done in order to meet the general convenience of your Lordships and especially of the members of the Opposition. Now this good act on our 804 part is used as a stick to beat us, as if we were bound by au immutable pledge not to make any variation because of what passed in Committee.
If we took the noble Lord seriously, it would be a lesson to us never to make a concession again lest it should be used against us, and we should be accused of a breach of a pledge and of dishonourable conduct because, on reflection, it appeared we had gone a little too far. The noble Viscount behind me, being a very great authority on one of the most vital trades of the country, brought before the Government privately, and afterwards before your Lordships' House, new facts which were not before the Committee when the decision was made. That appears to me a very good reason for reconsidering the decision. It is a good reason according to the practice of your Lordships' House, and it is also a good reason from the point of view of the rational conduct of business. Are we not able to change our minds in the face of a new fact? Why, it is obvious that any reasonable people would claim to themselves that liberty. I would ask your Lordships to support my noble and learned friend in the decision to which he has come.
§ THE MARQUESS OF READING
My Lords, when I ask the noble and learned Viscount on the Woolsack to give consideration to the new situation which has arisen, I am not: going to say a word about the Amendment proposed by the noble Viscount, Lord Inchcape, who speaks with great authority on this subject; but the whole case is based on the shipping industry, which is of course an industry of enormous importance. All I would ask is that the noble Viscount should consider between this and Third Reading whether it is necessary to go the full length, or whether he could not meet the point of the noble Viscount by words limiting the application of the reinserted words to the shipping industry. All I am saying at the present moment is that it should be considered. I quite agree with what the noble Marquess has said and, as far as I could judge, the desire in Committee was largely to give a Report stage in order that we might have an opportunity of discussion. For myself, I am very grateful for that. I would be quite content if the 805 noble and learned Viscount would tell me that he will consider this point, remembering that the only reason why he has put these words back is due to the arguments of the noble Viscount who spoke with reference to the shipping industry.
§ THE MARQUESS OF READING
I agree there are a number of industries connected with the shipping industry. I am including them all. I am speaking of the shipping industry as a whole. All I desire to bring to your Lordships' attention is that before we get the Third Reading we should remember that what is being done is a far more important point than is perhaps realised. What is now being said for the first time in an Act of Parliament, is that a man, who is not under an obligation to work, who is free to dispose of his labour when and how he likes, renders himself liable to become a party to an offence so long as he refuses to accept employment. I think that is going further than was intended. I rather think it was what the noble and learned Viscount had in his mind when he accepted the Amendment proposed in Committee. I ask him to consider the point, for I am sure he will give it fair-minded consideration and, if he sees any way to meet it, he will.
§ THE LORD CHANCELLOR
Of course I must respond to the invitation from the noble and learned Marquess and I will consider the point. I know I shall not be taken as making any promise.
§ THE LORD CHANCELLOR
I will consider the point we have discussed today and no doubt we shall hear more of it.
§ THE MARQUESS OF SALISBURY
With your Lordships' consent, I would like to ask your Lordships to allow us to put down the Third Reading for Monday. In that event I shall, at the beginning of business on Monday, move that this Bill have precedence over all other Orders of the Day in order that your Lordships may have a perfectly free opportunity of discussing it on Third Reading.