§ Order of the Day for the Third Reading read.
§ Moved, That the Bill be now read 3.—(Lord Snell.)
§ LORD HEMINGFORD
My Lords, I scarcely think that this Bill ought to pass your Lordships' House without a few observations on Third Reading. There are several Amendments on the Paper, some of them in my name. I understand that the Government are not in the least inclined to give any concession on those Amendments, and I think that perhaps I shall save your Lordships' time by not moving them, but by contenting myself with a few remarks on Third Reading. By all that I have understood of the canons of good legislation, this Bill is a bad Bill, and it is untimely in its introduction and passage through Parliament. It is obscure, and those who are concerned with it will find it very difficult to understand. It is likely to lead to litigation. There are considerable differences of opinion among lawyers as to the meaning of it. As to that, I need do no more than remind your Lordships of what took place on the Committee stage of the Bill in this House, when there were obvious differences of opinion as to the meaning and effect of the Bill. It is a kind of legislation which, though it may be necessary at times, is at least inadvisable, and should be used most sparingly. It is not direct legislation, but throughout gives powers to a Minister or Government Department to legislate or exercise powers. It is true 815 that the consent of Parliament, in a somewhat illusory form, is necessary, in that Orders made under it have to be submitted to Parliament, but this form of legislation is decidedly objectionable, in that it concerns itself entirely with putting powers into the hands of a Government Department.
I have said that I think that the Bill is a bad one. I would draw attention to the title of the Bill, and particularly to the last words of that title. It is described as:An Act to make provision for regulating the remuneration and conditions of employment of catering and other workers … and the general improvement and development of the industries in which they are employed.I have searched the Bill to find, if I can, anything which is likely to be for "the general improvement and development of the industries" concerned. I find that that phrase is used on page 5 of the Bill, where it is provided that a wages board—shall have power to consider any matter affecting … the general improvement and development of that part of the industry in relation to which the board operates…I can only imagine a sort of cold shiver going through most of those people concerned in the industry if a wages board should take those matters into consideration. I do not see what it is likely to be able to do to improve or develop the industry, and I do not think that its interference, as the nominees of a Government Department, would be likely to be welcomed by anybody concerned in the industry.
Fortunately, perhaps, there would not seem to be necessarily any results to follow from the fact that a wages board does take these matters into consideration. That, indeed, is rather characteristic of the whole of the Bill, which begins by saying that the Minister of Labour and National Service "shall establish a Commission," but beyond that there is nothing in the Bill except about what the Minister may do. The Minister in the Commons tried to reassure the House by saying that the Bill would be worked in such a way that nobody need have any apprehensions as to its effect. Probably the best thing would be for the Minister, having done what he has to do and having established a Commission, to do nothing more in the matter until the war is over.
816 I said that the Bill was untimely. I will, for argument's sake, admit that there may have been a good case for regulating wages in the industry before the war, and there may be a good case for doing so after the war; but I cannot imagine that there is really any demand for it in the interests of those employed in the industry in this time of war. All that need happen, if any class of employee is badly treated, is for those concerned to go elsewhere; and I do not suppose that the Minister of Labour would prevent their leaving the catering industry in order to go into munition work, or something of that kind, where they would presumably earn substantial wages and be well off. If it be the case that the Bill is not really wanted at the present time, during the war, it seems to me most unfortunate that it should have been introduced at this time. I venture to think, though it may be bold of me to say so, that if a Government composed of the same persons as are members of the Government at the present time had had this Bill brought before them for consideration in normal times of peace, it would never have been introduced as a Government Bill.
I should really have liked to conduct an elementary examination of members of the Government in the contents and effect of the Bill. There are three members of the Government who were concerned with it in another place—the Minister of Labour, the Parliamentary Secretary to the Ministry of Labour, and the Solicitor-General, who would no doubt have passed that examination with flying colours. Coming to your Lordships' House, the noble and learned Viscount on the Woolsack, I know, would have passed the examination with flying colours at the present time, but I venture to think that it he had gone in for that examination some three or four days before the Bill was introduced in your Lordships' House he would have been completely and hopelessly ploughed. With regard to the other members of the Government, if fifty per cent. marks were necessary for a pass, I venture to think that not one-third of the members of the Government would have passed the examination on the contents and effect of the Bill. I do not blame them; they have got something very much better to do, and in the circumstances of the present time a matter of this kind is apt to be left to a particular Department.
817 But what is the Department concerned? It is the Ministry of Labour, and I think that the Minister of Labour's time would have been very much better occupied in some other task than steering this somewhat contentious Bill through Parliament. His task in the Government for the purposes of the war is one of the most important and he has done extraordinarily good work, but, being human, even his work in that office has not been perfect. There have been, as we know, many cases where his time would perhaps have been far better occupied, for instance in seeing that a manager of an important export business, earning and deserving a salary of four figures a year, was not taken away from that business at the age of 38, put into the Pioneer Corps, and sent to dig gravel. That is only an example. There are other key men who have been taken away from their work under the regulations and rules which the Minister has made, and set to do a private's job. Again, I do not know that one can blame the Minister, but if he had devoted a little of the time which he has had to give to this Bill to dealing with matters of that kind, I think he would have been far better occupied. There is also the case of young men in munitions, not particularly skilled young men—at all events young women are trained to do the same work in the course of a couple of months. There are thousands of those young men still employed in munition work. A few hundred of them might well have been spared from that work, which could have been done by women, and they could have been sent into the ranks in place of the key men of whom I have spoken, who have been, taken and put into the ranks of the Forces—a real and severe loss to the business of the country.
Another thing I cannot help remarking with regard to this Bill is that it seems to me to be what I can only describe as a partisan Bill from one end to the other. It is meant, and no doubt very rightly and properly meant, to assist the employees. But it is hardly reasonable that it should neglect so absolutely and completely as it does the interests, not only of the employers, but of the general public and those who are served by this industry. There is an Amendment to Clause 2 in the name of my noble friend Lord Iliffe which, I am given to understand, the Government are likely to accept. If that Amendment is carried the 818 Bill will contain a provision enabling the Commission to make inquiries into "means for meeting the requirements of the public, including in particular the requirements of visitors from overseas, and for developing the tourist traffic." If that Amendment is passed it will be the only reference in the Bill to the general public and those who are served by this industry. The references to employers are all in connexion with the interests of the employees. Although the rights, or supposed rights, of the employees are to be considered and protected so fully, nowhere in the Bill is there the slightest appearance of any sort of regard for the protection of the interests of the employers. There is a clause which enables a disabled person to be employed at less than the minimum statutory remuneration, but, apart from that, there is nothing whatever to ensure that those who are to receive this minimum remuneration play their part or do their duty towards their employers. For that reason I think this is a partisan measure. Although its principal object may well be, and should he, the protection of the employees, there should at least be some recognition of the fact that employers have rights.
The Bill, admittedly—I think I am right in saying "admittedly" on the part of the Government—is likely to be unnecessary in very many respects, but in those circumstances why should the Bill include all sorts and kinds of bodies concerned in catering, like the big voluntary hospitals, the colleges of Oxford and Cambridge, and a number of other catering businesses within the meaning of the Bill carried on not for profit, and carried on in such a way that those concerned are undoubtedly feeling that they have very good places which they do not want to lose? Why all those bodies should be included in this Bill I cannot for the life of me imagine. I venture to hope that the opposition which this Bill met with in another place will be something in the nature of a warning to the Government to keep a rather more careful eye on Departmental legislation introduced during the strenuous days in which we live. In another place certain concessions were made towards the end, but they were very limited, and those which some of us have asked for in this House certainly stand not the least chance, I understand, of being accepted by the 819 Government. Therefore I think all that I can do is to ask your Lordships to watch Bills of this kind which come forward, and so far as you can bring pressure upon the Government to refrain from introducing bad and untimely Bills at this time, when all of us who have any powers whatever should be devoting the whole of our thoughts to the prosecution of the war.
§ VISCOUNT BENNETT
My Lords, when I spoke a few days ago on this Bill I had in mind only one matter, and that was tourist traffic. Listening to the discussions that took place in this Chamber induced me to read the Bill more carefully, and while I should not associate myself with the strong denunciations of the measure to which we have just listened, because of my lack of knowledge of the matter as a whole, I think it well to point out that this legislation strikes a very clear blow at our ideas of democracy. I have seen no legislation in my time in which such great power has been given to one man to determine issues so far-reaching. First of all, the Minister appoints a Commission—not the Kingin-Council, but the Minister—and the same Minister appoints a wages board. The powers given to the Commission are not final. When the Commission make a report to the Minister, he may send it back to them with such observations as he thinks necessary. Is that quite fair to the Minister in days of Party Government when the issue is a question of men banding themselves together into organizations to demand from their employers certain benefits in the way of fixing a minimum wage? It is both unfair to the Minister and to the public.
Let us consider what would arise in the event of a pending Election. Suppose the whole of the catering employees have made up their minds that they must have better wages. The Commission hear their case, and I am bound to say that the provisions as to notice seem to me more than ample. There is an opportunity for everyone to present his views to the Commission, and the Commission decide it is inadvisable to increase wages at that time. Thereupon the Minister rejects the report and sends it back to the Commission for reconsideration, with such observations as he may think desirable. What is the effect of that? Either one of two things must 820 happen. Either the Commission must bow to the observations of the Minister, or you have a complete deadlock in which neither side is prepared to change its mind.
The Minister has no power to make an order, I am bound to say, until such time as he has a report, and if he does it is the Minister's order, not the order of the Commission or the order of the Government as such. The Minister's order can only be made after he has received the report of the Commission. If, having received that report, he sends it back with his observations, the Commission are authorized to amend it if they so desire. In that event, if they do amend it, then it is to be treated as a new proposal and, as the Bill says, the same rules shall govern it as in the case of the original proposal. That, of course, means further delay. So much for the Commission. Then a wages board is set up consisting of an equal number of representatives of employers and employees, and others supposed to be independent who are appointed by the Minister. They make inquiries and submit a report, and it is upon that final report that the Minister is authorized to make an order. But he need not make an order on that report. He may send that report hack. When it goes back once more you have the same situation.
I submit that that is not the sort of thing we have been aiming at in our efforts to ensure that the form of government known as democracy might succeed. Wherever there has been a struggle to obtain more money, whether from Governments or from other employers, it has always been found that an easy way to secure electoral support is to propose additional compensation or remuneration. Governments have to deal with that. I am sorry to say it requires a great deal of moral courage to withstand an appeal of that character when the result may mean that a dozen or fifty constituencies will vote in a particular way. That is a very serious matter. I had occasion once to say that the words of the great poet had fair application there:How oft the means to do ill deeds Make ill deeds done.If the jurisdiction were not there, then the evil would not follow. The difficulty lies in clothing one man, a political Minister from necessity—
§ VISCOUNT BENNETT
I am not concerned with that at the moment. It is a political matter and a political Minister is charged with responsibility which involves the question of payments to be made to vast number of people throughout the Kingdom. I conceive that to be a very serious matter from the standpoint of the successful working of democracy. In one of the great Dominions—it was not Canada—a campaign was conducted in favour of larger allowances being made in one of the Social Services. Obviously the vote was in favour of it, regardless of what the effect might be upon the financial fortunes of that Dominion. So here, in this situation, you have a very difficult problem indeed for the Minister as well as for the public. I could tell your Lordships of a case that came under my observation in this Kingdom in which that very question was at issue. I was convinced then, as I am now, that the great thing for Parliament to do is to prevent the necessity of an individual Minister having to decide issues that are purely political in their character and which affect the great body of the public—that is, one Minister having this power and authority to deal with matters that affect the financial standing and even the solvency of enterprises. Either the observations he makes on the report of the Commission or the wages board are met or they are not, in which case you have a deadlock, which is fatal to the working of the Bill and in the end means that one side must give in to the Minister. That is the position.
There is another question about which the noble Viscount on the Woolsack and I had sonic discussion a few days ago. So profound is my regard for his legal knowledge and his capacity as a Judge, that even if he were presiding in the Privy Council, despite the observations that he has made, I should be quite content to argue the case before him and endeavour to show him he was expressing an erroneous view. That is saying a very great deal. The reason is to be found in three words. It is not unusual for Parliament to enact legislation with respect to the powers, authority, and responsibilities of boards and then follow that with a section declaring how these boards shall exercise their powers—in other words what factors shall influence them in 822 arriving at their conclusions. Clauses 8 and 9 deal with the exercise of their powers by the various bodies that are set up, but when I come to Clause 10 I find there the rule that Parliament says shall govern these men in the exercise of their discretion. It is quite a common thing for Parliament to say that, in arriving at a conclusion as to a minimum, a body shall be governed by certain considerations, and that the exercise of its discretion will be the exercise of a discretion founded on and limited by the terms of the definition of the powers it has been given.
Let us look at Clause 10. There are only three words in it to which I wish to draw attention but I shall read it in order to make sense:For the purpose of determining whether the remuneration paid or agreed to be paid to a worker to whom a wages regulation order applies is less than the statutory minimum remuneration clear of all deductions, the net remuneration obtained or to be obtained by him in cash from his employer after allowing for his necessary expenditure, if any, in connexion with the employment shall, subject to the provisions of this section, be deemed to be the remuneration paid or to be paid to him—Then follow these words:and the expression deductions ' in this Act includes deductions in respect of any matter whatsoever except deductions under the Income Tax Acts, the Unemployment Insurance Acts, 1935 to 1940, the National Health Insurance Acts, 1936 to 1941, or any inactment authorizing deductions to be made from the remuneration of a worker in respect of contributions to any superannuation or other provident fund, and except any deduction or payment authorized to be made under Section one, Section two or Section three of the Truck Act, 1896.That subsection defines the meaning of the word "deductions." We cannot escape from it. Parliament has said to those in charge that they must make the finding "clear of all deductions" and then it says "deductions"—not in this section but "in this Act," so that wherever the word "deductions" occurs in this measure the meaning it has is the meaning given in this clause. If you turn to the words that come before you will find the words "clear of all deductions." What does that mean? It means clear of everything except what is mentioned here, for it says clearly "deductions in respect of any matter whatsoever, except …" Therefore gratuities and tips are not to be considered. There is distinct and positive 823 legislation against them because the meaning attributed to the word "deductions" is not in this clause as was indicated the other day by the noble Lord, Lord Nathan, and accepted by the noble and learned Viscount on the Woolsack. Whatever the word "deductions" means in this whole Statute it means that gratuities are not included in the deductions. So we have positive legislation in favour of gratuities not being considered, positive and definite legislation. If the clause had said, as was suggested the other day, "in this section," then of course you would have had another thing altogether, but the clause says "in this Act." Therefore, wherever the word "deductions" occurs in this measure I repeat that it means that you cannot deduct gratuities.
I submit that that is unfair. I am not going to repeat the argument. It really means that you have differences in the remuneration received by individuals in the same establishment when the whole effort of this Bill, as I understand it, is to provide for the opposite. There is legislative sanction to the obtaining of gratuities by all employees, thereby ensuring that the measure of their compensation or remuneration shall not be the same; yet the whole object, according to what was said by those in charge of the Bill, was to ensure that there was fairness and equality so far as remuneration was concerned for the same service and not, as will be the case now, that it should be subject to the caprice of the individual customer of the various establishments and subject to the popularity of the individual who receives the gratuities. One very popular person may receive a very large remuneration in the way of gratuities and another may receive very little. I submit that that is not what is intended by the legislation, and that the proposals that have been made to meet that situation should be carefully considered by the Government before we send forth to the world this legislation as the last word of a very difficult and complex problem.
I repeat that it is important to recall that, while the wages board and the Commission may both consider gratuities in making their proposals—I want to be perfectly clear about that; I put it the other day and was not understood—when you come to the use of the words "clear of all deductions" then the Bill says that 824 there is one thing you do not consider and that is gratuities, because the clause says that "deductions" "includes deductions in respect of any matter whatsoever except" certain specified deductions, and that applies to every line of every section of this legislation. I offer your Lordships an apology for making any observations at all with respect to this legislation because I have lived here rather a short time and that disentitles me to make observations except on the broad and general policy of any legislation that may be submitted; but it is because I feel so strongly that this is unfair to the individuals concerned that I have ventured to trespass upon your time to the extent that I have.
§ VISCOUNT MAUGHAM
My Lords, I want to add a very few words only to what has fallen from my noble friends. I thought it was absolutely recognized as a principle that legislation should be clear and precise, and that as far as possible in regard to such a topic as the Catering Bill people should be able, after careful reading of it, to have a reasonably clear idea as to what the Bill is intended to do when turned into an Act; but I must say that having read this Bill several times, and having listened to what was said on the last occasion by the noble and learned Viscount on the Woolsack I am in the greatest doubt as to two things—first, what the Bill really means; and secondly, what its legal effects will be. It may be that I am stupid and cannot understand it, but really I cannot understand why Clause 10 should be drawn in the way in which it is drawn and what effect it is intended to have. I do not now understand from the Bill itself what is the intention in regard to tips. Who is to decide whether tips shall be abolished or not? In all these trades, or nearly all of them, tips are payable. It does not seem to me to be right. I think it is quite possible that the noble Viscount on the Woolsack, with his usual dialectical skill, can give an answer to my noble friend Lord Bennett which may persuade certain people that my noble friend Lord Bennett is wrong. As to that I do not know at all, but I do submit that what my noble friend has said at least has this result, that it is uncertain what this Bill does mean.
The Solicitor-General expressed an opinion in another place a short time ago 825 which may or may not be right. I do not know. I have looked into the question of the effect of the Truck Acts in this matter and I am in doubt now as to whether the people employed, or a large number of the people employed, in the catering trade are subject to the provisions of the Truck Acts or not. It was said by fie Solicitor-General that they are within the term "domestic servants." I have the greatest doubts whether that is correct. It may be so but I think it is very doubtful. Why should there be this uncertainty? Then was a question a short time ago in the case of Pratt versus Cook or Cook versus Pratt—I forget which name came first—in relation to the construction of Section 23 of the first Truck Act. The case related to a packer employed by a firm well known in the clothing trade in St. Paul's Churchyard, Messrs. Cook, Son and Co. The question was whether this man, employed as a packer for over fifteen years, had been properly paid during that period the amount of his wage, which was 53s. a week, because it was said as part of his wage in addition to the 53s. he was receiving dinner and tea which was reckoned at 10s. a week.
He was employed, as in many establishments all over the country similar people had been employed, on the footing that the Truck Acts did not apply to him. The case went first before one judge, next to the Court of Appeal, and then it came up here. I think my noble and learned friend on the Woolsack was not sitting on that occasion, nor was I, but the decision of the House of Lords, upsetting the decision of the Court of Appeal, was that this man was not being paid his full legal wage because there was an absence of an agreement in writing authorizing 10s. per week to be deducted from his wage for dinner and tea. That decision entitled the workman, who had all the time been quite content with his wage plus his dinner and tea, to claim 10s. a week for fifteen years, which was of course a very nice round sum.
Nosy this is what I want to say. There was no reason why such a thing should be left vague and uncertain. All over the country the view had been taken that people in his position were entitled to be paid their wages plus 10s. for dinner and tea, or whatever it might be in the particular case, and that that was a legal 826 process which the employers had carried out. But so widespread was the view which the House of Lords, no doubt quite rightly, thought was wrong, although the practice had been in force for so many years, perhaps fifty years, that the Government had to introduce a Bill in the year 1940, which was the same year in which this case was decided, to say that such transactions up to the date of the Act would be deemed to be legal although there had been no contract in writing—that is to say, they had to re-establish the validity of the transactions during all these years as regarded the past. Of course it did not affect the judgment which had been obtained by this lucky individual Mr. Pratt.
I mention that for the purpose of showing how unwise it is to let things remain in doubt in a Bill of this character. If it was dealing with the intricacies of real estate or the construction of wills or something of that sort, I can understand the Minister in charge of the Bill saying: "Oh, this is a technical matter and we are advised that this has a particular effect and laymen are not to be expected to understand it." I do not agree that that is right even in those cases, but in such a matter as a Catering Bill, which concerns thousands and thousands engaged at weekly wages all over the country, and who are incidentally getting a great deal of their remuneration from the public in terms of tips, I cannot understand any real reason why the Government should say: "We prefer to leave it in doubt, we have been advised by So-and-so to a particular result and we ask you to take it as it stands." That resembles to some extent what, I think, is generally known as the confidence trick. It is a very good plan, no doubt, on the racecourse, but I cannot believe it is the proper course for a Government to adopt even in the course of a great war.
§ THE LORD CHANCELLOR (VISCOUNT SIMON)
My Lords, I do not imagine the majority of your Lordships would desire this debate to be greatly extended—a debate on the Third Reading of a Bill already considered both in principle and detail—but out of respect for the three noble Lords who have addressed us, it perhaps is proper that I should say a few words on behalf of the Government before I put the question to the vote. I must say that I think there 827 is a certain danger that the speeches that have been addressed to your Lordships may somewhat mislead those members of the House who have not themselves studied the Bill with the detail which, of course, those speakers have. Therefore I make a very simple observation about the Bill itself. The Bill itself is for the general purpose which for a quarter of a century or more has been served in certain other trades by the Trade Boards Acts. The first Trade Boards Act was passed in the first Parliament of which was a member, and I am sure my noble friend Viscount Samuel also remembers it very well. It was an Act which provided methods of settling rates of wages in trades where there was not any existing organization adequate for the purpose. It was criticized at the time. Some of the observations just made by my noble friend Lord Hemingford almost seemed to come from those debates. But the Act has worked smoothly for more than a quarter of a century and has become part of the regular friendly machinery of collective bargaining in whole sections of trade. I do not think at this time of day there would be many members of your Lordships' House who do not recognize that on the whole the system of collective bargaining has been an advantage and not a disadvantage to this country.
Now, my noble friend Lord Hemingford said he cannot see any reason for this Bill at present, though he was careful to add that it might be necessary after the war. But in this and some other matters, if things are going to be necessary after the war, there is something to be said for taking thought about them now. Post-war arrangements must in many cases be planned before the war ends. What is the catering industry? It is a very widespread, much divided form of employment engaging very large numbers of people, and it is one in which we are all agreed that after the war we hope to find a great and fruitful development. We shall want, probably, not only works canteens but we shall want restaurants and other institutions of the kind run satisfactorily to all concerned. We shall need to appeal to great numbers of workers to come into this industry. It is expected that many people who are now cooking for various units in connexion with the Forces will find their employment when the war is over in this indus- 828 try. That cannot be done, as it appears at least to the Government and, I hope, to others, unless there are reasonable and decent arrangements such as this Bill makes possible.
Of course if you object to the Trade Boards Acts, if you say it is entirely for the employer to dictate what wage he will pay, and that the other side has nothing to do with it but just to take what is given, then I can understand the objection. If, as I believe, most of the members of your Lordships' House recognize the value of collective bargaining, and if you further recognize the fact that no such machinery exists in many parts of the catering trade, well there is nothing very surprising in this Bill being carried. The main object of the Commission, which is outlined in Clause 2, is to inquire whether methods of regulating remuneration in various branches of the industry are, or are not, satisfactory and, if they are not, to make recommendations for setting up wages boards. There is nothing very revolutionary or very novel in all that. It has been done again and again in connexion with trade boards.
Then comes the other main criticism which my noble friend Viscount Bennett has very eloquently voiced to-day. He is of opinion that this is quite novel legislation. I think that I correctly caught his words and that they were to the effect that this was quite novel.
§ THE LORD CHANCELLOR
I thought the criticism was addressed to the Bill on the ground that it was of a quite novel character. I will tell my noble friend the extent of the novelty. Under the Trade Boards Acts, as existing in this island for about a quarter of a century or more, no Commission but a Minister acts directly without the previous interposition of an impartially composed Commission. That is the extent of the novelty. If my noble friend, after the debate, will come to see me privately, I will give him some examples to show that at this moment in connexion with various trades in this country there are trade boards which act by reporting to the Minister, and the Minister makes an order. The novelty, if you call it novelty, is that having regard to the magnitude of the interests 829 involved and the difficulty of some of the questions, it has been thought wiser to set up, in the first instance, an impartial Commission which shall investigate these things as its primary function. Subsequent steps, reporting to a Minister, conferring, the ultimate making of an order, are all steps which are perfectly familiar in this island in connexion with the settling of such things as rates of wages by trade boards.
I will not venture to enter into further controversy with my noble friend Viscount Bennett on his view about whether or not it is open to the wages board under Clause 8 to consider whether a branch of the industry is extensively tipped. I venture respectfully—since my noble friend has no belief that I am right—to invite him to confer with my noble and learned friend Viscount Maugham, in some quiet moment, because I do not think anybody who really reads the Bill with the authority with which some people can read it, can have the slightest shadow of doubt on the subject. It is merely because my noble friend will look at Clause 10 and not at Clause 8. If he will reverse the process he will, I think, arrive at a' different conclusion. My noble friend is perhaps something like Athanasius. If there was anything at all to be said against Athanasius it was that he was perhaps a trifle obstinate in sticking to the opinion which he had first formed.
The question remains as to whether we should all set one another examination papers about this. I am only concerned as to who my examiner is to be. Lord Hemingford, I think, does appreciate that I was correct in what I said about Clause 8 on the Committee stage. I thought everybody understood it now, but, apparently, there are exceptions. Let us, if you will, after meditating in the watches of the night upon this legislation, endeavour in perfect good temper to devise questions for each other to answer, but let us recognize that this is a Bill which is endeavouring to bring about a valuable reform in respect of an immense service which at present, for the most part, as to its wages, is quite unregulated by any process of collective bargaining, and let those of us who believe that, under proper regulation, collective bargaining may be a good thing, persuade ourselves that even this new departure is one which will confer a benefit on the 830 country. For the rest we must wait and see how it goes.
I am sorry that everybody is not quite persuaded of the virtues of the Bill. In these matters we can only do our best and do what we think right. I will not deal with the point raised by my noble friend Viscount Maugham about the Truck Act or the interesting account which he gave of a recent decision of the House of Lords. I hope to be able to show, in the discussion on an Amendment that is to be moved after the Third Reading, that there is very good reason why we should not adopt that Amendment. And now, unless any other noble Lord wishes to raise some point, I will put the question.
§ VISCOUNT BENNETT
The noble and learned Viscount who sits on the Woolsack was good enough to refer me to Viscount Maugham, advising me to have some private conversation with him. May I say that I have known Viscount Maugham for many years and I can testify that statements which he has made to me in private have always agreed wholly with his public utterances?
§ THE LORD CHANCELLOR
I can only say that in my view Lord Maugham has expressed a contrary view to Lord Bennett's with regard to Clause 8. Let me clear up this matter now. If Viscount Bennett will refer to the Official Report of the debate in Committee on Thursday, May 20, he will see, at the bottom of column 608, these words which were uttered by Lord Maugham:I agree, and I have already stated that I agree, with the Lord Chancellor that under Clause 8 (1) any mortal thing, relevant or irrelevant, might be considered by the people who were fixing the remuneration to be paid by the employer …Then he went on to say that what he was interested in was providing that it should be considered. I can assure my noble friend that there is no doubt amongst those who have been constantly concerned with these things as to the effect of the clause. After all, the Bill was, in the first instance, very carefully considered by the draftsmen, by the Law Officers, and by some other people who know a little about law. I hope that he will not lie awake at night thinking about this unhappy point.
My Lords, perhaps I may be permitted a word before this Bill 831 finally goes on to the Statute Book. I said something about it on the Committee stage, and, for the benefit of those of your Lordships who were not here on that occasion, I may say that there was a difference of opinion between the noble and learned Viscount on the Woolsack and the noble and learned Viscount, Lord Maugham. We had the somewhat (to my mind) unedifying spectacle of the Lord Chancellor of Great Britain sitting on the Government Benches and defending, with a certain amount of acrimony and heat, this highly debatable Bill. The noble and learned Viscount, Lord Maugham, whom I, as an infant lawyer in this House, consider to be one of the greatest jurists of his day, differed from the Lord Chancellor on the interpretation of certain clauses of the Bill. It does not seem to matter in the least which of the noble and learned Lords is right, nor does it matter what the degree of their difference is; what does matter is that they differ at all, that they could differ, and should differ. Surely before a Bill of this character is drafted and presented to your Lordships, and above all before it goes on the Statute Book, there should be attached to it a sufficient degree of clarity and certainty to avoid the vexatious litigation which those best qualified to know have assured your Lordships in terms will follow from the passage of this Bill in its present form. You have for that the word of the noble and learned Viscount, Lord Maugham, and of a former Deputy Speaker of the House of Commons, himself a lawyer, and of others qualified to speak on these matters.
It is true that the noble and learned Lord Chancellor tells your Lordships that the Bill has been considered by draftsmen and lawyers, and that they have all liked it, but the noble and learned Viscount on the Woolsack is not in the position of the Speaker of the House of Commons, because on a matter of this kind he speaks as a member of the Government, and may well be forgiven for taking a paternal interest in this Bill. It is euphemistically termed the "Catering Wages Bill," but is to a large extent the child of Mr. Ernest Bevin, the sometime General Secretary of the Transport and General Workers' Union. It is a Bill to take away from the catering industry, who have done their work to the universal satisfaction of the catering trade and of the country for at 832 least half a century, the control of their business, and put it into the hands of the bureaucrats, of whom we are getting so heartily sick; so that naturally the Bill commends itself to the noble Lords on the other side of the House, and I was not in any way surprised to hear them supporting it. I suppose it is going to have its Third Reading, but, before it does so, I want to record my emphatic protest against its passage, against its draftsmanship, and against the Government handling of the Bill in this House and in another place throughout its unfortunate history. I think that the episode in the House of Commons when Sir Douglas Hacking withdrew an Amendment on the assurance of the Solicitor-General that certain words and certain phrases in the Bill had certain meanings, which we are now told they have not, is a piece of political skullduggery and chicanery which has not been equalled or a very long time, and I do not mind going on record as saying so.
§ On Question, Bill read 3.
§ Clause 2:
§ General functions of the Commission.
2.—(1) The Commission—
(a) shall make such inquiries as they think fit or as they may be directed by the Minister to make into the existing methods of regulating the remuneration and conditions of employment of workers to whom this Act applies, and into any other matter affecting the remuneration, conditions of employment, health or welfare of such workers;
LORD ILIFFE moved, after subsection (1), to insert:
(b) shall make such inquiries as they think fit or as they may be directed by the Minister to make into means for meeting the requirements of the public, including in particular the requirements of visitors from overseas, and for developing the tourist traffic.
§ The noble Lord said: My Lords, I beg to move the Amendment which stands in my name. This Amendment takes the place of one which I moved during the Committee stage. Its purpose is to emphasize the need for considering the interests and convenience of the public, and especially of our visitors from overseas, in regard to any regulations governing wages, working conditions, and so on which may arise as the result of this Bill. I do not propose to reiterate the importance of attracting tourists to this country after the war, as I dealt with 833 that at some length when I spoke on the Bill in Committee. The Amendment which I then moved was, I think, generally acceptable, at all events in principle, to your Lordships, but my noble and learned friend the Lord Chancellor said that he felt that I had chosen the wrong place in the Bill for its insertion. He promised, however, that the inclusion of suitable words, to be inserted in a more appropriate place, would receive consideration before the Bill left your Lordships' House. The present Amendment is the result of such further examination. In moving its adoption, I do so in the high hope that it will be accepted; and, in that belief, I should like to thank the noble Lord, Lord Snell, who is in charge of the Bill, and the noble and learned Viscount on the Woolsack, for implementing so fully the promise which they then made to me and to the House. I beg to move.
Page 2, line 14, at end insert the said new paragraph.— (Lord Iliffe.)
THE EARL OF BESSBOROUGH
My Lords, I desire very briefly indeed to support the Amendment which my noble friend Lord Iliffe has moved. As my noble friend has explained, the arguments for it were fully gone into during the Committee stage, when the noble and learned Viscount on the Woolsack undertook to examine where such an Amendment should be made. I wish only in a few words to recall that, when this Bill was first forecast, it was proclaimed by the Government spokesmen as a charter for the tourist traffic. I can still remember the headlines to the inspired articles in the Press. But then the Bill was introduced and printed, and we found that from the first word to the last the question of the tourist traffic was never mentioned at all; it was simply a Bill for regulating wages. Both in another place and in this House, members of the Government have vied with members of Parliament in emphasizing the importance of looking after the tourist traffic after the war. I am very glad to think, therefore, that my noble friend Lord Snell, who, I know, so much regretted not being able to meet us on our Amendments on the last occasion, is now going to have the opportunity which he so much desires.
§ LORD JESSEL
My Lords, before the noble Lord replies I should like to support what has been said about this 834 Amendment. I am one of those who fought very strenuously for it, and I told the Government at the time that they were extremely unwise to be so hardhearted as not to allow any Amendments on this Bill. There has now been a change of heart, thanks to the intervention of the noble and learned Lord Chancellor, who at once diagnosed that there was considerable feeling on this side of the House, especially as regard this subject. I should like to congratulate my noble friend Lord Snell on receiving the distinguished honour which we all were glad to read in the Press the other day that he had received. I am sure that his conduct in charge of this Bill has had something to do with the reception of that honour.
§ LORD SNELL
My Lords, in order to remove as quickly as possible any anxiety which there may be in the mind of my noble friend Lord Iliffe, I will tell him at once that I propose to accept his Amendment. The effect of it will be to make it clear on the face of the Bill that the Commission is supposed to make such inquiries as they think fit into "means for meeting the requirements of the public, including in particular the requirements of visitors from overseas, and for developing the tourist traffic" as a whole. It also makes it clear that these are particularly matters on which the Minister may be instigated to direct the Commission. In the discussion which took place on the Amendment dealing with this subject on a previous stage of the Bill, there-was no difference of opinion between the Government and the supporters of the Amendment as to the outstanding importance of this matter. The Government objection was based primarily on the fact, as has been stated, that the Amendment was put down in the wrong place. It was also felt that to single out one subject, however important it might be, for special attention might prejudice consideration of other very important matters and might necessitate the insertion of a whole Schedule of subjects for consideration by the Commission.
The noble and learned Viscount the Lord Chancellor, however, after hearing the views that had been expressed, undertook to have this matter looked into at a later stage. Careful and sympathetic consideration has been given to the whole question in relation to the present Amend- 835 ment, and the Government are satisfied that this Amendment adequately and effectively meets the point of view expressed so unanimously in the debate in Committee, without giving rise to embarassing consequences. The Amendment seems to the Government to be now in the right place. It is the Commission who can take a wide view of the subject as it affects the whole industry, and in just that part of it which may at any time be included in the field of a wages board.
Furthermore, there is no certainty that a wages board will be set up for any particular section of the industry. The question of setting up a wages board is a matter which will need very careful examination by the Commission after a review of any existing machinery for regulating wages. The Amendment also draws a distinction between persons coming to this country as visitors from overseas and the tourist traffic, and this to His Majesty's Government seems to be right. In the former case individual attention is necessary, in the latter case what is needed is adequate and attractive arrangements for dealing with the movements, the reception, and the catering for organized parties. The Government are anxious to do everything that they can to develop this tourist traffic. Their interest in this most important work is demonstrated by the fact that since April, 1929, they have given financial support to the Travel and Industrial Development Association of Great Britain and Ireland, of the Finance Committee of which my noble friend Lord Iliffe is the Chairman. During the war, of course, the activities of the Association have been virtually suspended, but the Association is at the present time preparing post-war plans designed to encourage a greatly increased flow of visitors to this country compared with what has been the case in the past.
It is not in any way intended that the Commission should usurp the functions of the Travel Association, though both will, under this Amendment, be working towards the same end. My right honourable friend the Minister of Labour, appreciates the work which has been done, and will be done, by the Association, and has undertaken that it and the associated body in Scotland will be taken into full consideration to insure against any danger of overlapping. The only thing that remains 836 for me to say is that, having regard to the obvious strength of opinion in favour of the Amendment, the Government have decided to accept it, and in doing so they also endorse the view that a Bill designed to encourage visitors from overseas and the development of the tourist traffic should contain a specific reference to these matters. It only remains for me to thank all those who have taken part in the discussions for the suggestions they have made, and I have pleasure in accepting the Amendment.
§ On Question, Amendment agreed to.
§ Amendment moved—
§ Page 2, line 18, at end insert ("or with respect to any such matter as is mentioned in paragraph (b) of this subsection").—(Lord Iliffe.)
§ On Question, Amendment agreed to.
LORD HEMINGFORD moved to add to the clause:
(3) In this section remuneration of a worker shall be deemed to include all cash received by the worker in connexion with and directly as a consequence of his employment, whether paid by the employer or otherwise.
§ The noble Lord said: My Lords, I call your Lordships' attention to the fact that this is an Amendment to Clause 2, which deals not with the wages boards but with the Commission. The business of the Commission is to look into matters generally connected with the remuneration of the persons concerned, and possibly to make recommendations which may result in the setting up of a wages board. It is therefore before we come to the position of the wages board at all that I ask that these words should be inserted. It may be answered that they are unnecessary, but in the remainder of the Bill, or the greater part of the remainder of the Bill, wherever remuneration is referred to it is expressly described as remuneration payable by the employer. This, of course, deals again with the question of tips or gratuities. My hope is that the Government will make it quite clear by accepting this Amendment that the Commission in their original consideration of the position of the industry, or that part of the industry which they are inquiring into, should clearly and obviously be entitled to inquire into and 837 to consider the remuneration received directly in connexion with the employment, whether it is received direct from the employer or some other person, that is to say, from customers.
§ I do not think it is any use my moving the other Amendments standing in my name, which have regard to tips, and perhaps I may be allowed to say what appears to me to be the position of the Bill on those. Assuming for the purposes of argument—I am not going to try and judge between the eminent lawyers who have given opinions on the subject—but assuming for the purposes of argument that Clause 8 does allow the wages boards to take tips into consideration, Clause 10 certainly does not allow them to be treated as deductions. The actual result, therefore, is that if they are considered under Clause 8 the only way in which that consideration can be made use of and made effective would be for the statutory minimum wage to be fixed at a negligible amount because of the very large amount which a particular class of attendant is receiving in tips. I cannot for one moment imagine that that would be done, and therefore, if I am right in that, it is quite clear that when it comes actually to fixing the statutory minimum remuneration tips must be left out. However, as this is, we are told, a Bill for the development and improvement of the industry generally, I still have almost more than a lingering hope that the Government will accept this Amendment, in order to ensure that the Commission, before the wages board comes into existence, may consider the entire remuneration received in connexion with his employment by the employee, whether that remuneration comes from the employer or whether it comes in the form of gratuities from others.
Page 2, line 30, at end insert the said new subsection.—(Lord Hemingford.)
§ VISCOUNT MAUGHAM
My Lords, I beg to support this Amendment because it tends to clarify the measure. That is sufficient ground for my support. I also wish to say one word on a subject which I confess I regard as of very little importance at the present time, and that is the construction I put on this Bill as it stands. I have been a Judge for many years, and I like, before determining any question of difficulty regarding the construction of a Statute, to hear it argued 838 on both sides; but I take leave to observe that I am not aware that in private I have expressed any opinion about this Bill which is not precisely the same as that I have expressed to the House. I take a very strong view that if anybody speaks in this House, more particularly a person with a legal training, he is absolutely bound to express precisely what is his true belief as regards the words he uses.
Now let me say this. Clause 8 is, as my noble friend Lord Hemingford has said, the clause that deals with the wages board and its power to submit proposals to the Minister. I agree, and I repeat what I said before, that inasmuch as there is nothing to prevent the wages board considering any matter—I gave the fantastic illustration of the colour of the girl's complexion—so they can consider whether tips are being paid to these employees or not. I therefore think that under Clause 2 the Commission, since they can make such inquiries as they think fit into the existing methods of regulating the remuneration and conditions of employment of workers, might, prima facie, look into any matters affecting remuneration. I am not sure that here I am entirely in agreement with my noble friend Lord Bennett, but it makes very little difference in my opinion to the result of what I have to say. They might therefore consider the fact, which would stare them in the face, that the bulk of the remuneration of the employees in question consisted of tips given to them by the public.
At the same time I am of opinion that neither the Commission nor the wages board respectively, under Clause 2 and Clause 8, need look into these matters if they do not wish. When we look at Clause 10, with the parts to which my noble friend Lord Bennett so forcibly referred, and have regard to the fact that deductions throughout the Bill are to be deductions as therein defined, there is a kind of hint given both to the Commission and to the wages board, if they are set up, not to pay any attention to tips since, if they do, they will not form part of the minimum statutory remuneration. I am not saying that on a true construction of this Bill it may not be the case that tips can be considered. If they are considered by the wages board the statutory remuneration will be just what the board thinks fit, having considered the fact that there are tips. Then that sum which may be 839 as much as, or so much less than, the salary payable to the employees at that time, becomes their statutory remuneration, and if the employers do not pay it they are liable to the serious penalties set out in the Bill.
I repeat what I have said before, and that is that this is not the right way to deal with this question. The public, the employees, and the employers ought to know where they stand. It ought not to be left to some unknown people, appointed we know not how or under what circumstances, to determine whether they should shut their eyes to tips or keep their eyes wide open and realize that the girls, in ordinary catering establishments, are paid largely by tips. If the question is to be decided that there are to be no tips in future, it ought to be determined after an inquiry; and it is not a very extravagant idea that the employees themselves should be consulted so that we may know whether they want the abolition of tips or not. It ought not to be left to a few public servants, or whoever they may be—persons who are not responsible to Parliament—to determine a great question of that sort without any public inquiry or without the Legislature having a voice in the matter. In substance I would say that I do not quarrel with what my noble friend Lord Bennett said, except on a very small point, and I would also say that substantially I agree that the probable meaning of this Bill is that which my noble friend Lord Hemingford has put upon it. I do not see why the question should be left in any doubt, and the position would be rendered a little bit clearer if this Amendment were accepted.
My Lords, I hardly like to venture into a discussion with learned Lords who have practised the law all their lives. I do so only as a layman because I believe that the arguments put forward by my noble friend Lord Hemingford are entirely convincing. Secondly, I do so because I agree utterly with the views expressed by the noble and learned Viscount who has just sat down. He has explained to your Lordships that, in his view, this Bill is not clear in its intentions. I do not see why this House should part with a Bill in respect of which even the lawyers are not content to be in agreement with each 840 other. If the lawyers disagree, how can the layman understand? This is an occasion upon which the Government ought to change their point of view and put in this small Amendment, which will apparently make the situation quite clear. They should not allow a Bill to be passed which, as far as one can understand, will mean continual reference by employers and others to the Law Courts, and lead employers into a great deal of expense apart from the main issue involved in it. For these reasons I beg to support my noble friend Lord Hemingford.
§ LORD NATHAN
My Lords, I feel very unwilling to engage in a struggle between legal luminaries, being myself but a leaf from a lower branch. I am not at all certain that the noble Viscount, Lord Elibank, is correct when he says that if this Amendment were adopted it would make the position any clearer. I am not at all certain that this Amendment is so crystal clear that it might not open the way to a similar discussion. My noble friends on whose behalf I speak hope that the Government will reject this Amendment on grounds that are based, not upon legal niceties, but upon a question of principle. We hold, incidentally, that the Bill is clear in its provisions and that it is open to the Commission to take into account, as I think the noble Viscount, Lord Maugham, has said, any matters that they consider relevant to those subjects coming within their purview.
The objection which my noble friends take to this Amendment, as I ventured to say in the course of the Committee stage when a very similar matter arose, is that by this Amendment, if it were accepted, Parliament would legitimize, or at least would be recognizing, the practice of tipping, whereas my noble friends hold the view that even if tipping cannot be prevented by Act of Parliament, which may very well be the case, there should be created a public atmosphere and temper in which tipping becomes unfashionable and even disreputable. That view, which my noble friends hold, would certainly be incapable of finding expression in fact if Parliament were to give its authority to the practice of tipping. In those circumstances I hope that the Government will stand firm in resisting this Amendment on the grounds both that the Bill in its terms is clear and that the Amendment itself 841 has implications, which would require far greater consideration than this Amendment gives the opportunity for.
§ THE LORD CHANCELLOR
My Lords, I can briefly state the view of the Government on this matter, which indeed was raised in Committee. I did not understand when Lord Hemingford first addressed us on Third Reading that he was really pressing this Amendment, but be that so or not the position of the Government is quite clear and simple. We are not prepared to see put into this Bill provisions which treat the system—on the whole the objectionable system—of tipping as though it were something approved and sanctified by the Legislature. We cannot, of course—nobody can—prevent here and now the giving of tips in many connexions. But there is very considerable effort being made in the hotel trade to establish a better system and that effort ought to be encouraged in every way. The tronc system now obtains in many places and in many hotels. This is a system whereby an addition is made to the bill—ten per cent. or whatever it is—and this is taken collectively for the purpose of being distributed among the employees. It is a far better system than the system in which a rich man, by slipping an unusually large tip into the paw of somebody who is to give him attention, secures the best service. I do not really think there can be two opinions about the undesirability of that.
I am perfectly aware that by resisting this Amendment we do not abolish that system, but if we put this Amendment in then we are, in the very Bill which is endeavouring to secure better regulations in the catering trade, treating tips as part of the necessary established authorized routine. That the Government are not prepared to do. Therefore what we have done in this Bill—and here I will now speak dogmatically—is this. So far as fixing the remuneration is concerned, it is the remuneration that is to be paid by the employer to the person employed. You cannot fix the size of the tips to be given to an employee by means of a wages board or a Commission. So as far as a question of regulating remuneration is concerned it is regulating the remuneration to be paid by the employer to the employee, and, as was pointed out by my noble friend Lord Nathan, and is plain to anybody who will look at the 842 Bill calmly and without heat, the Commission may also look into "any other matter affecting the remuneration or conditions of employment."
One of the things that unquestionably may affect remuneration is this very system of tipping, and one knows that there are certain positions held by people in which the fact that they are likely to get considerable gratuities is a consideration which may affect the amount of wages they get. We cannot alter that here and now, but there is not the least doubt in the world—I state it with great-respect to the House but categorically— that under these words any other matter affecting the remuneration the Commission is empowered to consider. In the same way, later on, in the wages board clause, Clause 8, they may do so. I have to say that, having considered this with great care and I believe with real impartiality, we have come to the conclusion that it is not a service to the catering trade to insert these words, and that it is not right to put into this Bill in black and white statements that these things must be taken into account.
The true position is—I hope I shall be forgiven for stating it again—that the wages board may consider it in fixing what is the amount of remuneration to be paid by the employer. That has been explained many, many times and nobody explained it better or more clearly than the noble Lord, Lord Nathan, in Committee. But we are opposed to putting in this specific statement because it would amount to a discouragement of the gradual development of this new system, which is a far better system, because it means that the individual guest cannot secure for himself by the use of money a service which ought to be rendered equally to all concerned. I hope that noble Lords will feel, as I am sure many of you must feel, that this is a disagreeable position to be put in, and that it is even more disagreeable for one's wife who has to say ''How much should I give the chamber maid?" or "How much ought I to give the porter?" Anyone who cares about the development of this industry, as your Lordships do, would, I am sure, wish to see this system not encouraged, but discouraged, and therefore I will ask your Lordships to reject the Amendment.
§ LORD HEMINGFORD
My Lords, may I be allowed to correct my noble and learned friend with regard to one remark he made about my Amendment? This Amendment does not say they must make allowance for these tips. It merely is intended to define those things which they may take into consideration, and I have already said that I consider the answer may well be made that they already have that power. I only wanted to insert these words for the purpose of making it clear that they really had got power to take these tips into consideration and not for the purpose of making use of them to affect the remuneration to be paid by the employer; and also, if necessary, for doing what the Lord Chancellor suggests—namely, that tips should be discouraged. Really I think his answer to my Amendment, or what was suggested as the answer to the Amendment, was entirely off the Amendment itself.
§ THE LORD CHANCELLOR
If I may be allowed to say another word my noble friend is really under a misapprehension. If he looks at Clause 2 (1) to see where the word "remuneration" comes in, I think he will understand that his Amendment is open to the criticism I made. The word "remuneration" comes in line 10, and the Commission are to make inquiries "into the existing methods of regulating the remuneration and conditions of employment of workers to whom this Act applies." Surely no one can suggest that there are "methods of regulating" tips. This is not the relevant place. The place where it comes in is "into any other matter'' and I venture to advise that that does include tips.
§ On Question, Amendment negatived.
§ Clause 4:
§ Establishment of wages boards.
§ 4.—(1) If the Commission are of opinion, as respects any workers to whom this Act applies and their employers, that such machinery as aforesaid for regulating those workers' remuneration and conditions of employment either does not exist or is not, and cannot by any improvement which it is practicable to secure be made, adequate for the regulation thereof, the Commission may make a recommendation to the Minister (hereafter in this Act referred to as "a wages board recommendation") for the establishment of a wages board in respect of those workers and those employers.
§ THE EARL OF BESSBOROUGH moved in subsection (1), after "thereof," to insert "or that the employers are unable 844 to satisfy the Commission that they will provide for workers in their employment remuneration and conditions of employment at least equivalent to those prescribed under any wage regulation order (as hereinafter defined) in force under this Act and applicable to similar workers."
§ The noble Earl said: My Lords, having found my noble friend in a melting mood this afternoon I move again the same Amendment as I moved during the Committee stage. It is not exactly in the same words, because I have tried to make the Amendment a little clearer in its terms than perhaps it was before, for reasons which I will explain to your Lordships in a moment. I move the Amendment again for two reasons. The first is because on the previous occasion I ventured to ask my noble friend Lord Snell whether the Government would be good enough before a further stage to consider the point I was endeavouring to make—without committing myself to the words of the Amendment on the Paper—and in reply Lord Snell said he would refer my request to the Minister and to the Government as he could not personally give me the promise asked for. By moving this Amendment again I am giving an opportunity of further consideration by the Government of my Amendment. My second reason for moving it is that, as I have just hinted, I am afraid I completely failed to make the purpose of it clear in so far as the noble Lord who replied to me on behalf of the Government is concerned.
In his reply to me Lord Snell quoted me as saying that "some rates above any possible minimum could be roughly insured in certain cases." With great respect, my Lords, that does not in the least represent what I said, which was
that there are some sections of this industry—''
not certain cases—
…in which rates of remuneration and conditions of employment are certain to be continually above any minimum standard which may be fixed.
And I added that
they could be guaranteed to be maintained above that standard.…
Again my noble friend Lord Snell said later on that he remembered
a case where it was said that a whole city might be saved if there were ten righteous men in it.
My noble friend then went on:
I do not know whether you can spare a whole industry from the inconvenience of regulation because there are some particular groups in that industry who would do justice to the workers in this respect.
Again, with great respect, I never said or hinted or suggested for a moment anything of the kind. I never suggested, and never would suggest, that the unrighteous should be spared for the sake of ten or any other number of righteous men.
§ I never did say or think for a moment that a whole industry should be spared because some groups would do justice to the workers. What I argued was that large sections of the industry do maintain and guarantee to maintain rates and conditions above any possible minimum, and that they should not have regulation imposed upon them since the object of the Bill was already achieved in their case. Let me take as an example the hotel industry. We speak of the catering industry in the singular, but it is more correctly put in the plural because the catering industry is not one but many. I say that because one section of the industry, the hotel section, has time and time again in Acts of Parliament been recognized as an industry in itself. I have here a report of an inquiry carried out by the Government into remuneration and hours of employment in the catering trade which was published in 1930. Summarizing that report, it was found at that time by the Government that 75 per cent. of the adult males and well over 70 per cent. of the adult females in hotels earned in total remuneration more than the highest trade board minimum fixed for their section of all the other forty-four industries dealt with. This report was published more than ten years ago and it is well known that remuneration in this business has increased very considerably since that time. I am not referring merely to war increases but to increases regularly taking place before the war There, at any rate, are the figures as proclaimed by the Government on the latest occasion on which the industry has been inquired into.
§ When I moved the Amendment on the Committee stage I pointed out that as Clauses 3 and 4 were drafted the test upon which a wages board was to be imposed is whether or not machinery exists for regulating remuneration and not whether rates and conditions are satisfactory or not. It is perfectly true that 846 these two clauses say "may" and not "must," but I do not require to go into the argument of "may" and "must" because "may" follows on the existence of machinery and not on the existence of unsatisfactory conditions. I hope the noble and learned Viscount on the Woolsack will not have to correct me in making that statement. I should like to add that I am sure it is not the intention of the Government to impose regulation merely for the pleasure of imposing it for its own sake. We all know the need of it in many cases, and where there is a satisfactory reason for regulation we all accept it.
§ It may be said—I think it has been said—that good employers have nothing whatever to fear from this Bill. That is no doubt perfectly true, but why set up elaborate and expensive organization in order to obtain a purpose which has already been achieved? The principle of the Trade Boards Acts, as I understand it, is that regulation should follow on unsatisfactory rates and conditions and not on the existence or otherwise of machinery. I move my Amendment in the full belief that in doing so I am following the principle adopted by Parliament for many years. When I moved it on the previous occasion I was so fortunate as to receive a great deal of support from your Lordships, and I hope that on this occasion I may also receive some encouragement from my noble friend Lord Snell.
Page 3, line 18, after ("thereof") insert ("or that the employers are unable to satisfy the Commission that they will provide for workers in their employment remuneration and conditions of employment at least equivalent to those prescribed under any wage regulation order (as hereinafter defined) in force under this Act and applicable to similar workers".)—(The Earl of Bessborough.)
§ LORD SNELL
My Lords, I deeply regret that I cannot be so accommodating in regard to this Amendment as in the previous case of the Amendment of my noble friend Lord Iliffe. The purpose of the Amendment is presumably to prevent the Commission from recommending a wages board that would include undertakings in the control of employers who can satisfy the Commission that they will provide for the workers in their employment remuneration and conditions of employment at least equivalent to those 847 provided under any wage regulation order in force and applicable to similar workers. "Similar workers" can only mean similar workers in comparable establishments and working under comparable conditions. There is, for instance, very little similarity between a cook, let us say, in a luxury hotel and a cook employed at a holiday camp. The term "similar worker" would be most difficult to interpret in an industry with such diverse conditions.
In the discussion which took place on the Committee stage it was made clear that, in the Government view, the only voluntary machinery that can be regarded as satisfactory for regulating wages and conditions of employment, is that based on the Whitley principle of collective bargaining to which both sides of the industry are parties. The Amendment now under consideration does not attempt to meet that objection. It asks the Commission to remember only the employer. The attitude of the Whitley Committee on this point is worth while remembering. They stated in their second Report that:We think it advisable in this connexion to repeat the following paragraph from our former Report:'It may be desirable to state here our considered opinion that an essential condition of securing a permanent improvement in the relations between employers and employed is that there should be adequate organization on the part of both employers and workpeople. The proposals outlined for joint co-operation throughout the several industries depend for their ultimate success upon there being such organization on both sides; and such organization is necessary also to provide means whereby the arrangements and agreements made for the industry may be effectively carried out.'Your Lordships will see that what is regarded as an essential by the Whitley Committee is not met in the Amendment before your Lordships' House.
It is true that the employers' guarantee, whatever form it takes, will be based upon a regulation order that will have been recommended by a body of representatives of workers as well as employers. But it relies upon a wages board to provide a standard. In effect, therefore, the Commission are being asked to say that when recommending the wages board they will also recommend that certain specified employers should be excluded because the Commission are satisfied that those 848 employers will observe the terms of the statutory regulations. This, in the view of the Government, is an impracticable proposition. The statutory regulation must be based on the assumption that those to whom it applies will observe it. Indeed it is safe to say that it is only the exceptional employer who will not observe a statutory obligation. It seems wrong, therefore, in the view of the Government, to attribute any special virtue to an employer simply by reason of the fact that he guarantees to observe a wage regulation order that should properly apply to his establishment.
The question arises, finally, as to why employers should seek to avoid being included in the wages board. It is probably because they desire to avoid the inspections that are a necessary complement of statutory regulations, but it could not properly be expected that, just because some employers give a guarantee, there should be no check whatever to see that that guarantee was being implemented. Joint deliberations of the nature that I have suggested have proved to be of inestimable value to the industry as a whole, and the Bill proceeds on the assumption that there is virtue in such joint machinery, whether such machinery is voluntary or statutory. The Amendment implies a contrary view. In the view of the Government this Amendment is contrary to the fundamental principles on which the Bill is based and I very much regret that, on behalf of the Government, I am not able to accept it.
§ On Question, Amendment negatived.
§ Clause 10 [Computation of remuneration]:
LORD TEVIOT moved, at the end of the clause, to insert:
(4) For the resolution of doubts it is hereby declared that servants in boarding houses, hotels and public-houses, other than those wholly or mainly engaged in clerical duties, and kitchen staffs, cleaning staffs, waiters and waitresses in cafés and restaurants are domestic servants within the meaning of the Truck Acts, 1831 to 1940.
The noble Lord said: My Lords, it is with some trepidation that I step into what appears to me to-day to be almost the Law Courts. But I am reinforced by what I may possibly term a cocktail,
having studied the few words that fell from the lips of the noble and learned Viscount who sits on the Woolsack in the last debate, in the course of which he said:
What is the attitude of the Government in regard to this admittedly complex question, which no doubt does at times raise difficulties?
I feel very much reinforced by that remark, and, therefore, I propose, before moving the Amendment, to address a few words to your Lordships with your consent. I do not intend to go over ground which was; traversed in the last debate on the Committee stage of this Bill. Unfortunately I was not able to be present then. But in view of what transpired on that occasion, I propose to move the Amendment which stands in my name.
§ I must, I am afraid, ask for a little indulgence from your Lordships in regard to the reading of some of the remarks which I am going to make. This is a highly technical matter, and you have heard from my noble and learned friend who sits on the Woolsack that he realizes the difficulties that beset one in speaking upon it. I hope, therefore, that, as I am a complete layman, you will permit me to read some of my remarks.
§ My friends who are interested in this subject—and there are many of them throughout the whole country—are advised by eminent legal men that there is grave doubt as to the categories of servants in the catering trade who respectively are subject and are not subject to the operation of the Truck Acts, 1831 to 1940. The question depends on two main factors—whether the servants are "workmen" within the definition contained in Section 10 of the Employers and Workmen Act, 1875, or whether they are domestic servants, who are excluded from that definition. There is great uncertainty as to what constitutes a domestic servant, as it is not clear whether this is to be tested merely by the nature of the work done, or whether regard must be had also to the nature of the establishment in which the work is done, that is to say, whether work can be domestic if it is not done in a domestic establishment, even ill when exactly the same work is done in such an establishment it would be clearly domestic. For example, a parlourmaid in a private house is clearly a domestic servant; if she transfers to a restaurant, where she does the same work, does she remain a domestic servant?850
§ The importance of this matter from the point of view of the practical conduct of catering is due to the fact that meals cannot be given to employees subject to the Truck Acts as part of their wages unless they enter into a written contract authorizing the deduction of the value thereof from their cash wages. We all know that; there has been a celebrated case which your Lordships will have in mind with regard to this matter, where a very heavy penalty was inflicted. As the practice of giving meals as part of wages is almost universal in the catering trade, and essential, for obvious reasons, in the case of persons working in establishments where food is prepared and consumed, it is vitally important that a wages board should have no difficulty in making clear and certain any orders relating thereto.
§ The whole matter has rather puzzled my friends, having regard to what was said by the Solicitor-General in another place and to what fell from the noble and learned Viscount on the Woolsack here in the course of the debate during the Committee stage. I shall not weary your Lordships by reading what both of them said, but it is conceived that, as the Amendment as now drawn avoids the only specific objection which the Lord Chancellor was able to bring against it in its original form, and reconciles his view of the law applicable with that of the Solicitor-General, the Government should now accept this Amendment as being merely declaratory of what the law is. It would be most unsatisfactory both for the wages boards and for all engaged in the catering trade if this matter has to be left for the elucidation of extensive litigation.
§ I am sure we all feel that it is of great importance that this Bill should be absolutely clear to all those engaged in this trade. After all, the people in this trade have to administer the regulations laid down in this Bill, and they have always behind their elbow, so to speak, at the same time, the danger of infringing the Truck Acts. That is what is worrying them. There is no idea of attempting to amend the Truck Acts, but we do wish to know with regard to this Bill what the Truck Acts mean. That is the point, and I understand, as I have already said, that the trade have already taken very learned advice on this question, and feel that this Amendment should be accepted by the Government. I hope that my 851 noble and learned friend, who I believe is going to deal with this matter, will be sympathetic towards the Amendment and enable it to be embodied in the Bill. I beg to move.
§ Amendment moved—
Page 9, line 34, at end insert—
("(4) For the resolution of doubts it is hereby declared that servants in boarding houses, hotels and public houses, other than those, wholly or mainly engaged in clerical duties, and kitchen staffs, cleaning staffs, waiters and waitresses in cafés and restaurants are domestic servants within the meaning of the Truck Acts, 1831 to 1940.").— (Lord Teviot.)
My Lords, I shall not detain you for more that a few moments, but I can hardly escape paternity for this Amendment, because it is really the same as the Amendment which I moved in this House about ten days ago except for the words "other than those wholly or mainly engaged in clerical duties." Those words have been inserted out of deference to the observations which fell from the noble and learned Lord Chancellor on that occasion. I will content myself by saying that I hope that the Government will see their way to accept this Amendment, if only to give the impression that their attitude towards this matter is not wholly and solely mulish obstinacy, but that they are prepared to accept in some degree at any rate the representations made in this House and in another place by those best qualified to know the difficulties of the catering trade as a whole.
§ VISCOUNT MAUGHAM
My Lords, I do not intend to say more than two or three sentences, but I feel bound to support this Amendment, because I feel that it does lend clarity to this Bill. I think it is quite possible that the Lord Chancellor can criticize the terms of the Amendment in some respects, but, if the Government want to clarify the Bill, they ought not to be deterred by the fact that an Amendment of this sort is open to some verbal criticism. It may be so, but I wish to repeat what I have said before to-day—namely, that in fact there is great doubt as to whether the persons who are mentioned here are subject to the provisions of the Truck Acts or not. It is true that "manual labourers" alone are within the terms of Section 10 of the Act of 1875. That is a phrase of great wideness, and of rather an artificial character, because everybody works with his 852 hands, even persons who are engaged in clerical work, but they are not "manual labourers" as understood by the law. If they are not, then the Truck Acts do not apply, and all is well; but, if they are, they may still be outside the Truck Acts if they are "domestic or menial servants."
We do not much like the word "menial" now, and I think that probably "menial" means no more than "domestic." But the meaning given to the word "domestic" by the Government as announced in another place is very wide; and I know that there are competent lawyers whom I have myself consulted who say that it is a matter of grave doubt whether the list of persons mentioned in Lord Teviot's Amendment are properly within the words "domestic or menial servants." If that is so it is a thing which I should have thought the Government, having regard to the provisions of the Bill, ought to clarify, and if they do not clarify it I am quite sure there will be a crop of litigation in the future.
§ THE LORD CHANCELLOR
My Lords, this Amendment, subject to the insertion of one qualifying phrase, is precisely the Amendment which was moved on the Committee stage and was negatived without a Division. I do not know sufficient of the practice of your Lordships' House to know whether this exceptional facility after Third Reading of moving Amendments extends according to our ordinary practice to repeating an Amendment which was defeated on the Committee stage with a variation. Of course it is not for me to say.
§ THE LORD CHANCELLOR
It is in order then. But, naturally, as the Amendment is to so large an extent the same as the Amendment moved on the Committee stage, the answer to it is also the same. My noble friend Lord Teviot in his first sentence said that he had refreshed himself before facing the ordeal of moving the Amendment by "taking a cocktail," and it appeared that the cocktail was one sentence out of the speech which I delivered on this Amendment in Committee. But I am greatly astonished to find that my noble friend did not finish his cocktail. He only took the first sip.
§ THE LORD CHANCELLOR
It may be all you thought it wise to swallow but I had better add the two following sentences which are a complete answer to this Amendment. What the noble Lord quoted was:What is the attitude of the Government in regard to this admittedly complex question, which no doubt does at times raise difficulties?That is where he stopped. But I went on:It is simply that the Catering Wages Bill is not a Bill which need affect the application of the Truck Acts one way or another. I could not accept an Amendment which says that for the resolution of doubts all servants in hotels are domestic servants, because it is not true.
§ THE LORD CHANCELLOR
Well, we had better look back and see. I quote from the Official Report:LORD MORRIS moved to add to the clause:'(4) For the resolution of doubts it is hereby declared that servants in boarding houses, hotels, and public-houses, kitchen staffs, cleaning staffs, waiters and waitresses in cafés are domestic servants within the meaning of the Truck Acts, 1831 to 1940.'
§ THE LORD CHANCELLOR
That is a reply which I must leave to the layman. That would not carry you anywhere. My noble friend and those who are with him in this matter have not observed that I merely pointed out that the cashier at the desk is not a domestic servant by way of example, and I am very much afraid that his researches have not carried him to other examples. He wants the House to say: "For the resolution of doubts it is hereby declared that servants in boarding houses, hotels and public-houses…are domestic servants other than those wholly or mainly engaged in clerical duties." I really cannot accept that. Nobody with any sense of responsibility who understands the law could accept it, because it is not true. It is not true that everybody who is employed by a hotel company except the clerical staff is a domestic servant. Let us take the resident 854 manager in a first-class West End hotel. He is not on the clerical staff.
§ THE LORD CHANCELLOR
Yes, of course. But the point is that he is not a domestic servant at all, and the proposition that he is a domestic servant is one which I really cannot ask the House to put into the Bill. The reason why the resident manager and some other people do not come within the Truck Acts has nothing to do with domestic service: it is due to the fact that they are not manual labourers. You will find, therefore, that to put this thing right is not quite so easy as it looks. I must therefore quite briefly point out how the position stands. The Truck Acts are, I quite admit, a complicated piece of legislation, and it is perfectly true that cases arise where doubt is expressed as to whether a particular kind of person employed is on one side of the line or the other. That has nothing to do with the subject of fixing wages. The Truck Acts have nothing to do with fixing wages; the Truck Acts have to do with how the wages are paid. This Bill has nothing to do with how the wages are paid. It deals with fixing wages, and while it may be quite true that it is desirable to attempt to amend the Truck Acts, it is quite impossible to insert in this Bill a small clause which really does not amend the Truck Acts but makes the wholly incorrect assertion as to what the Truck Acts contain. That surely must be quite obvious.
§ LORD TEVIOT
Is not it very difficult, in view of what my noble friend has just said, to understand what the Truck Acts mean? That is the whole difficulty that the trade is in.
§ THE LORD CHANCELLOR
I do not think the trade are, in point of fact, in this difficulty, and if they thought so I should be very glad to see them. But what is quite certain is that whatever difficulty there is cannot be disposed of by inserting at the tail end of this Bill four lines to say that "for the removal of doubt" the law is that everybody employed in a hotel is a domestic servant unless he is engaged in clerical labour. It is grotesquely untrue. That Would not be declaring the law at all, but making a rather absurd misstatement. I would point 855 out to my noble friend who, like myself, had a long experience of the House of Commons, that those of us who have been in the House of Commons might very well think that such an Amendment as this would be ruled out of order, because the Speaker would say, "This Bill deals with regulating wages, it does not deal with the way in which wages are paid." And he would not allow such an Amendment.
§ VISCOUNT MAUGHAM
I am very loath to interpose, but really my noble and learned friend must not forget the provisions of Clause 10 (2), under which the effect of the Truck Act is of very great consequence. It states:Notwithstanding anything in subsection (1) of this section, wages regulation proposals and wages regulation orders may contain provisions authorizing specified benefits or advantages, being benefits or advantages provided, in connexion with the employment, by the employer…and not being benefits or advantages illegally provided.I conceive that it is very necessary to know what the Truck Acts become in order that you may know what is permissible under Clause 10 (2) of the Bill.
§ THE LORD CHANCELLOR
I do not mind being interrupted, but I must say I think the last interruption was perhaps rather hastily undertaken. I was referring to noble Lords having experience in the House of Commons, and I said that to those familiar with that place it might be thought that the Speaker would think this was out of order.
§ THE LORD CHANCELLOR
That is quite possible. In Clause 10 there is a reference to the Truck Acts. But there is also a reference to the Health Insurance Act, as well as to other Acts. All I am saying is that if this Bill deals with regulating wages in the catering trade, that is a wholly different question from how those wages are paid, and I venture respectfully to say that that is a consideration which should appeal to those members of the House who are familiar with rulings in the House of Commons.
§ LORD TEVIOT
My Lords, I apologize for referring to this matter, but it is a fact that Sir Douglas Hacking withdrew his Amendment on this very subject 856 owing to what was said by the Solicitor-General in another place.
§ THE LORD CHANCELLOR
I can deal with that interruption, too. Earlier to-day I heard another noble Lord use a very offensive expression in reference to the Solicitor-General's action, and I am glad to have the opportunity of repudiating it. What the Solicitor-General was asked to do by Sir Douglas Hacking was to state, for the information of the House, how the Truck Acts were likely to apply in the case of hotels. He very obligingly complied. There was no question whatever of his misleading anybody. I am quite certain that Sir Douglas Hacking would never suggest for a moment that he was misled. But somebody to-day suggested it was a piece of trickery.
The noble and learned Viscount is not infallible. The word I used was "chicanery" Sir David Maxwell Fyfe is a personal friend of my own, and I would not suggest that in any way he would do anything improper.
§ THE LORD CHANCELLOR
"Chicanery" then. Very well. I repudiate with great indignation the suggestion that my colleague in the Government could be capable of chicanery. What he did in the House of Commons was to give an exposition of the matter, for which he was thanked. He did not secure the withdrawal of the Amendment or affect the decision of anybody by what he said. I hope I have also made the matter clear to your Lordships, and I am sorry I cannot accept the Amendment, because I believe it would go outside the scope of the Bill. In any case, the Amendment is one which would not correctly state the legal position.
§ On Question, Amendment negatived.
§ Bill passed, and returned to the Commons.