Clause 1, page 1, line 5, at beginning insert—
("() This Act shall not apply if it is shown that a threat of the character specified in the next following subsection was made to secure the termination of the employment of any person.")
§ Clause 1, page 1, line 5, at beginning insert ("Save as aforesaid ").
§ Clause 1, page 1, line 15, at beginning insert ("Where this Act applies")
The Commons disagreed to these Amendments for the following Reason:—
Because the Amendments would unreasonably limit the operation of the Bill, which is to facilitate the resolution of matters at issue as between employers and employed in industry, pending the consideration of such matters generally by tire Royal Commission on Trade Unions and Employers' Associations.
§ THE LORD CHANCELLOR
My Lords, I beg to move that the House do not insist on the Amendments to which the Commons have disagreed. We are, 34 as your Lordships know, in the field of industrial disputes, in which as a whole we have nothing to be ashamed of, losing, I believe, through strikes fewer days than other industrial countries lose, except for Sweden and West Germany, and only 10 per cent. of time lost through accidents and 1 per cent. of that lost through sickness. Nevertheless, we all agree that every strike is one too many. We are perhaps particularly vulnerable first in the field of exports where export orders may be lost if delivery dates are not kept, and what I think makes us particularly vulnerable in this country is that our Press reports nearly every small strike to an extent which is quite unknown to many of our Continental competitors. We are also particularly vulnerable in the field of public transport, perhaps partly because it is easier to put pressure on the public than on a particular employer and partly because, when one comes to public passenger transport the total receipts and expenditure are so enormous and in a strike little is saved except petrol; all the expenses go on and all the receipts stop. In this field, anything which we can do to minimise strikes by alterations in the law we should naturally wish to consider.
As a whole, I think it may be right to say that this is not a field in which lawyers have great experience. Some people talk as though our High Court Judges live a secluded life, not really knowing what is going on in the world. Nothing in fact could be less true. Judges have spent all their lives learning about other people's trades, because every case they get is different, all about real things, and whether engaged in cases relating to private contracts, commercial law, industry, criminal cases or divorce cases, there is in fact very little that goes on in our national life with which Her Majesty's judges are not familiar.
The only exception I can think of is that of industrial relations, and this is not their fault. The reason for that is, as your Lordships know, that Parliament has thought it right largely to remove the whole of this sphere from the courts. In any other case, if a man joins an organisation and agrees to pay a subscription, if he does not pay it he can he sued for it; but no trade union can sue a member for his subscription. If two organisations make a contract and 35 there is a dispute, the court is the natural place to resolve that dispute. But Parliament has provided that in agreements between trade unions the court has no jurisdiction, and the trade union Acts themselves remove large parts of this field from the consideration of the courts. In addition, we have wages boards and the Industrial Court, we have had the National Arbitration Tribunal and the Industrial Disputes Tribunal; so that both lawyers and judges are less familiar with this field than they are with other fields of our national life. But to the extent that a modern system of industrial law could help, we should all be anxious that it should do so, though the extent to which the law can help in this field is, I think, somewhat limited.
It would appear to me to be primarily a question of communication—communication between employers and employees. One cannot fail to observe that some large companies have never had a strike in their history, while some others seem to be always having strikes. The number of strikes there used to be in Ford's until they changed their industrial relations system is, I think, a matter of common knowledge, and I believe there has been practically none since. It may be that one reason why public transport is somewhat vulnerable is because when the employees are all in pairs on buses all over London, clocking in and out at different times and going to different garages, the difficulties of communication between employers and employees are obviously much greater than they are in a factory, where everyone is on the factory floor. But so far as the law can help, as your Lordships know, what the Government seek to do is, first, in effect to reverse the decision of your Lordships' House in Rookes v. Barnard for the reason that it has given rise to so much uncertainty.
As the noble Lord, Lord Conesford, pointed out when the matter was before your Lordships' House previously, there are learned articles by learned authors in the Modern Law Review, and the Quarterly Law Journal and the Cambridge Law Journal, all disagreeing with one another as to what the effect of that decision is, and in the subsequent Stratford case even the Court of Appeal themselves were divided as to what it was that Rookes v. Barnard had decided. 36 The result of all this uncertainty has been to make it virtually impossible for those in industry to know where they are, because if learned lawyers do not know what it was that Rookes v. Barnard decided it is a little hard to expect trade union officials to be able to do so. It is with that object that, by this Bill, the Government seek to reverse the decision in Rookes v. Barnard.
But apart from that, they have set up a Royal Commission and are looking to the Royal Commission to see what can be done in this field, looking at it coolly and calmly and over a period; and we hope very much that that Commission will be able, for the first time, to give us a satisfactory code of industrial law. We are all, I am sure, very much indebted to those who have agreed to serve on the Royal Commission: the noble and learned Lord, Lord Donovan, who has had particular experience in this field and was a member of the Court of Appeal in the Rookes v. Barnard case; Professor Clegg, Fellow of Nuffield College and Professor Designate of Industrial Relations at the University of Warwick; the noble Lord, Lord Collison, whose qualification we all know; Professor Kahn-Freund, who certainly knows more about industrial codes of other countries than anyone else in this country and possibly than anyone else anywhere; Sir George Pollock, the Director of the British Employers' Confederation; the noble Lord, Lord Robens of Woldingham, whom your Lordships all know; Mr. Shonfield, the Director of Studies at the Royal Institute of International Affairs and former Economic Editor of the Observer; the noble Lord, Lord Tangley, formerly Chairman of the Commission on London Government (your Lordships all know him); Mr. Thompson, Chairman of Barclays Bank; Mr. Wigham, the Labour Correspondent of The Times; Mr. George Woodcock, General Secretary of the Trades Union Congress, and Miss Greene, the Headmistress of Kidbrooke School. I feel we are extraordinarily fortunate in having the services of these experienced persons to guide us in this field. But the Government feel that meanwhile it is essential that the uncertainty of Rookes v. Barnard should be ended.
When the matter was before your Lordships' House previously, your Lordships carried an Amendment with a view, 37 I think, mainly to dealing with the closed shop, as it was called, though I think that, for the most part, your Lordships in dealing with it meant the union shop. This, of course, is not an Amendment which deals with employers who intimidate employees for not joining the union. It is intended only to cover employees, and was no doubt stimulated by the Rookes case itself. But the Rookes case itself was not one of a man who had some conscientious objection to joining a trade union; on the contrary, Mr. Rookes was a keen member of the union. Everybody liked Mr. Rookes, and he did his part to obtain for his union of draftsmen, and for a number of other unions with members working around London Airport, agreement with the British Overseas Airways Corporation and a number of other companies working there, too, that if in any section (and it was left to the employer to decide what a section was) the employer agreed that all the men working in that section were members of the same union, then the employer would not engage anybody who was not a member of that union. And when one is dealing with the union shop, one has, of course, to remember that many big industrial concerns are as much in favour of this as are the trade unions, because they believe it to be to their advantage.
Mr. Rookes was the man who used to interview applicants for the design section and he told them that they would have to join the union. The difficulty which arose was simply that when, at last, B.O.A.C. got their new building they, perhaps quite sensibly, put the design section right at the top, where it was light and airy. But the men complained that the central heating did not work well in the winter, and that on those days when we did have heat and sun it beat through the windows and the place was like a furnace. Mr. Rookes's contention was that the union ought to have threatened industrial action unless their employers built them a new building simply for the design section; whereas the union said, "We must be reasonable about this. They have only just built this building. We are pressing them hard to put in central heating, so that it works properly, and to put in a proper system of air ventilation for the summer." But Mr. Rookes, perhaps unwisely, said at the meeting that he would 38 resign his post if his colleagues did not agree with him; and when only one friend voted with him, he had, in consequence, to resign. I think everybody thought that he would be back next week. His friend was. But then words passed, and ultimately, Mr. Rookes refused to return to the fold, with the result that the men lost the benefit of the 100 per cent. agreement for which they had all worked for so long.
This Amendment which was carried by your Lordships' House is not in any way restricted either to this sort of situation or to a closed-shop situation, or to a union-shop situation, or anything do with the membership of a trade union. It would apply wherever men said, "We are going on strike unless you remove so-and-so." The usual cause of such a situation is not a question of trade union membership at all. Many instances were given in another place, but perhaps the most common is where there is a foreman or supervisor whom the men do not like. In a factory of 1,000 men there may be half a dozen foremen, one of whom is a bully. The men may put up with him for a certain length of time, but then the time comes when they are not prepared to put up with him any longer.
The difficulty of the lawyers and the law, as the Royal Commission, of course, will realise, is that the points to which the lawyers have hitherto attached so much importance are not the points that matter. If the men are on seven days' notice, every lawyer says, "Well, if you tell the employers 'We are giving seven days' notice now, and we will be leaving in a week's time, but, if by that time you have removed this foreman, then we will come back', that is perfectly all right; no possible objection can be taken to that. But if you give six days' notice, instead of seven days, then that is all wrong, because that is a breach of contract." The sort of case which is also, I gather, quite common is that in which somebody is stealing from the cloakroom—though this sort of case does not interest the employers so much: it affects only the staff. But it is a difficult thing to catch somebody. Handbags are stolen and lockers are broken open; and if the man is then caught and convicted and fined, and the employer takes him back, you are apt to get trouble because the 39 men say, "Every one of us has been under suspicion for this, and we are not having this man back."
Examples were also given in regard to the pits, of men marking trams as if coal had been cut by them, instead of by the men it was in fact cut by, so that they got paid for coal they had not cut. One can quite understand such actions leading to bitter industrial feelings. Another example was that of a woman supervisor who would not let any of the women under her control go to the toilet more than once in the morning and once in the afternoon, and then only for a maximum of three minutes. If a woman was not out in three minutes, she was "hoiked" out. The women grumbled, but they stood this for some time. Then, eventually, they staged a 24-hour strike; and an inquiry was held. The difficulty had been that the supervisor was a relation of the manager. However, the 24-hour strike led to a proper inquiry, and she was then removed to a mental hospital.
One cannot help feeling that the basic trouble nearly always is a failure of communication, and that that is one thing which the law cannot cover. Nor, of course, would this Amendment cover men saying, "Unless you get rid of this man, we shall work to rule", because working to rule is not a breach of contract. No lawyer could object to that. Nor would it cover men saying, "Unless you get rid of this man we shall not have any more overtime", because overtime is usually voluntary, employers relying on the additional rates of pay to produce the men for it. In fact, your Lordships may know that sometimes there is complaint against employers that they are not providing sufficient overtime. So there is that difficulty about it. Nor, as I have said, does it in any way cover employers intimidating people.
Some reference has been made to the Universal Declaration of Human Rights. But, of course, whatever opposition there is with relation to that, we have not done anything so far as employers are concerned. I see that the Minister of Labour in another place cited a case which took place only a week or so ago, where a firm near Grantham sent a letter to all their members to say that the 40 National Union of General and Municipal Workers had recruited to the union workmen from the firm, and that if any worker joined the union either he would have to resign or, if not, would be given his cards and dismissed. Only if a worker refused to join the union would he be retained. The employer added that he hoped that this would be taken in the spirit in which it was intended—an observation the precise connotation of which I am not quite clear.
Then again, as the noble Lord, Lord Conesford, pointed out, it does not cover a case in which the men might say, "Unless in future you pay this man half of what he is now getting we shall all go on strike", because that is not threatening his dismissal. The noble Lord, Lord Wade, said that he thought the Amendment went too far and therefore, as an Amendment, there are these practical difficulties about the form in which it was worded. In all these circumstances, I submit for your Lordships' consideration that this is not a case in which this House ought to insist on its own Amendment.
I am not suggesting that this House is limited to drafting Amendments, though a distinction has to be drawn between that which is an Amendment of substance and a drafting Amendment. This certainly is not a case in which your Lordships have observed some point which has not been considered in another place. On the contrary, in another place the Second Reading occupied six hours, and 596 Members took part in the Division which then resulted. The Bill was considered in detail on Committee in another place for over seventeen hours in total, on, I think, seven different days, and an Amendment in substance to this effect was one of the Amendments which were moved and then negatived. On the Report stage the same Amendment was moved again, and the Report stage again took six hours. So not only has this Bill been exceptionally fully considered in another place, but so has the substance of this Amendment, both in Committee and on Report stage. Your Lordships then passed this Amendment after one hour and 50 minutes on a vote in which 7½ per cent. of Members of your Lordships' House voted in favour of the Amendment and 5½ per cent. voted against it.
41 The first result was a statement by Mr. George Woodcock in which, according to the Guardian, he said:If this Amendment simply makes illegal the threat to strike without making illegal the strike itself, then we might be driven to advise unions not to get in contact with the employers at all and simply to advise their people to walk out without informing anyone of their intention to do so and without giving any opportunity for negotiation.That, of course, is one of the difficulties which many of us have always felt about letting Rookes v. Barnard stand—that the main message of that case was: strike first, negotiate afterwards: if you all go on strike without explaining why, that is quite all right. What was wrong with Rookes v. Barnard was that when the branch passed a resolution saying that unless Rookes was put somewhere else than the design section they would go on strike, two of them and a trade union official, who was not an employee at all, told the management what was happening—which, one would have thought, it might have been in the interest of the management to know. Under Rookes v. Barnard there is nothing wrong with striking so long as you do not tell people beforehand what it is that you are going to do, and why.
Mr. Woodcock went on:This is why I call it distorting industrial relations, but if we are driven to it by the vindictiveness and stupidity of the legislators, in this case the House of Lords, we will have to do it.I believe that all of us would want the Royal Commission to start off in its very important task under the best possible conditions. I believe that they have just issued a vast questionnaire to obtain information on all sorts of matters which only the trade unions can give. It would not seem that the Amendment is likely to assist very much to get the Commission to start work in the sort of circumstances which I am sure we would all desire. When the other place received your Lordships' Amendment, they did not say, "We have been all through this before and have made up our minds and are not going to agree to this." On the contrary, they spent more than four hours very carefully considering your Lordships' Amendment before they decided that they were unable to agree with it.
There are, of course, subjects on which I am sure many of your Lordships may 42 feel that you have among your Members men with perhaps more expertise than exists in another place, though it may well be that the other place would not agree with that. We recently had a debate on Foreign Affairs at a very high level indeed, and in which the speakers included many noble Lords with a lifetime of experience in that particular field. In the field of Service matters and perhaps of scientific knowledge there are Members of your Lordships' House whose expertise and experience at least equals, if it does not excel, that of anybody in another place. But when the question arises how best to deal with disputes on a factory floor, of course the other place is full of industrialists and those who have been trade union officials and those who have worked in industry all their lives.
I hope that your Lordships will not think that I am in any way seeking to denigrate the great assets of your Lordships' House if I point out that this is perhaps not our strongest point. Those who voted in favour of this Amendment were: the noble and learned Viscount, Lord Dilhorne, a lawyer of great eminence, but I do not think that he would claim any more experience of life on the factory floor than I should myself; the noble Lord, Lord Wade, a lawyer; the noble and learned Lord, Lord McNair, a lawyer; the noble Lord, Lord Conesford, a lawyer. And the only Member of your Lordships' House who was not a lawyer and who supported the Amendment by a speech was, I think, the noble Viscount, Lord Massereene and Ferrard whose distinguished service record we know, and whose skill as a racing driver we admire. I think he allowed us to see a very charming operetta in the West End, and as a farmer he no doubt employs farm labourers, but I do not think that he himself would claim to have very much experience of industrial relations in large industries.
Therefore, your Lordships may feel, in considering whether or not to insist on our own Amendments, that one matter which it is quite proper to consider is whether this is a field in which we have particular experience which cannot be matched in another place, or whether, on the other hand, this is really a field in which they have perhaps more experience of this matter than do Members of your Lordships' House. For those reasons, I would ask your Lordships not 43 to insist on your Lordships' Amendments.
§ Moved, That this House doth not insist on the Amendments to which the Commons have disagreed.—(The Lord Chancellor.)
§ 4.27 p.m.
§ VISCOUNT DILHORNE
My Lords, I have listened with great care to what the noble and learned Lord has said and to the review of the history of the proceedings on this Bill and in particular in another place. He drew attention to the hours spent in discussing the Bill—it is an important measure—in another place, but there was one fact that he did not draw attention to, and that was the fact that when these Amendments were considered in another place they took, as he said, some hours of discussion and it was followed by a Division in which the Government's majority was three. That shows, at least, that the debate was pretty evenly balanced, whatever else it may show, but it is a significant fact which in his review I should have thought the noble and learned Lord might have brought to the attention of this House.
Then the Lord Chancellor said that the Amendments which I moved had been the subject of discussion as to their substance on more than one occasion. I will not enter into any controversy with the noble and learned Lord the Lord Chancellor about that, but I would pray in aid the observations made by the noble Lord, Lord Citrine, during the Committee stage in this House. When referring to the Amendments I had moved, he said:If we look at the Amendment by the noble and learned Viscount, Lord Dilhorne, what do we find? We find that it is wider than any of the others."—[OFFICIAL REPORT. Vol. 267 (No. 91), col. 637 June 24, 1965.]Then he said:It introduces a principle which, so far as I know, has not yet been contested, either in the other place or here…The noble and learned Lord the Lord Chancellor entered upon a number of matters in relation to trade unions on which I do not propose to follow him to-day. He referred, in particular, to the observations of Mr. George Woodcock, who is, of course, a member of the Trades Union Congress, to which he made some reference, and I read a report in the 44 Press—I hope it is incorrect—to the effect that Mr. Woodcock was wanting to censor the evidence before submission to the Royal Commission. That is quite apart from the issues we have to decide to-day.
I disagree with the way in which the noble and learned Lord the Lord Chancellor put one matter. He said that there was uncertainty as to what the case of Rookes v. Barnard decided, and that the decision was therefore to reverse that decision. I do not think there was any uncertainty as to what the case of Rookes v. Barnard actually decided. There has been, and is I think, uncertainty as to the implications that flow from that decision, but that is a very different matter. What Rookes v. Barnard decided was that Mr. Rookes was entitled to damages in tort against the defendants, because it was held that the defendants had been guilty of the tort of intimidation of his employer and thereby induced loss for him. I do not think anyone disputes that that is what the case decided.
But there is, and has been, uncertainty as to the—if I may use the word in common use—repercussions of that decision. I, for one, fully recognise the desirability of putting that uncertainty at rest, and the noble and learned Lord the Lord Chancellor really cannot say with any justification, in the light of what was said in moving these Amendments and on Second Reading, that these Amendments were to deal just with the closed shop; nor can he properly say that these Amendments apply whenever men say, "We are going on strike unless you do so-and-so." My Lords, they do not; because all that these Amendments do is to preserve the decision of Rookes v. Barnard and to prevent an individual from being victimised. It is only where the strike is in breach of contract, and the threat to strike is therefore to do something which is not legal, that the use of that threat to intimidate an employer will constitute intimidation.
I make no apology to your Lordships for having moved these Amendments on the Committee stage. I did so with one object and one object alone, and that was to secure that this Bill did not make it possible for any individual to be wronged in the way that Mr. Rookes was wronged and to be without redress. I do not challenge the case for removing the uncertainty flowing from the decision of 45 Rookes v. Barnard, for alleviating the anxieties of trade unionists in their day-to-day activities, and the Bill as amended makes it clear that the decision in no way restricts the freedom enjoyed by trade unionists before that decision in the conduct of their normal negotiations with employers. I do not propose to take up time to-day in reminding your Lordships of the Convention of Human Rights, but I should like to remind your Lordships of the final paragraph of the Queen's Speech. It was this:In all their policies My Government will be concerned to safeguard the liberties of My subjects.It certainly cannot be said that by resisting these Amendments the Government are showing concern to safeguard the liberties of individuals, for the effect of this Bill, if it is not amended, will be to deprive individuals of any remedy if they are victimised in the way Mr. Rookes was.
I have been attacked in the Press because in the course of the Committee stage I used the word "victimised" in relation to such conduct. I did not invent the application of that term to that conduct. I used the word deliberately, because it was the word used by the Minister of Labour in the House of Commons. Why, then, are the Government insisting—and this is what it comes down to—on seeing in this Bill that trade unions have this power to victimise individuals? I had hoped that with an opportunity of reflection they might come to see that the Bill as amended achieved their objective, and that it really was not necessary to ask the Commons to reject the Amendments made by your Lordships' House. I believe the reason why the Government were not prepared to accept these Amendments is that, despite all the discussion, members of trade unions still do not realise how very limited was the decision in Rookes v. Barnard and really how very limited these Amendments are.
I am confirmed in that view when someone with the authority of the noble and learned Lord the Lord Chancellor says that the Amendments would apply wherever men say, "We are going on strike unless you do so-and-so", when quite clearly they would not; and I am confirmed in that view by the speech made by the noble Lord, Lord Citrine, 46 on the Committee stage. I am very glad to see him in his place. If I may quote from his speech, he said then:Any act of tyranny in the workshop which was resisted by the men to the point of the dismissal of the person concerned would bring those people within the position of being sued in an action for tort. I do not think there is any doubt about that."—[OFFICIAL REPORT, Vol. 267 (No. 91), col. 638, June 24, 1965.]I think there is every possible doubt about that, and I hope that the noble Lord will take advice from his son, because I think that that view expressed by the noble Lord is entirely wrong. In fact, that statement completely misrepresents what was decided in Rookes v. Barnard. What is actionable—I repeat again—is to secure by intimidation the dismissal of a man from his job. If you threaten to strike in breach of contract to compel an employer to inflict loss on an employee, that is actionable.
The noble Lord went on to say that if workers joined together to try to get an employee dismissed because they believed him to be a thief or something of that sort, as the noble and learned Lord the Lord Chancellor said, then they would be responsible if he was dismissed from his employment and would be liable in an action for tort. That just is not the case. Rookes v. Barnard did not decide that. One must have regard to what that case actually decided, and those statements, and I think some statements made by the noble and learned Lord the Lord Chancellor somewhat misrepresent the present position. I do not propose to argue the whole matter over and over again. I do not think your Lordships would really wish it to be debated much further. I think there is a very important question of principle here, affecting the rights of an individual. But now we have to decide, not whether it was right for this House to carry those Amendments, but whether, with the other House disagreeing with them, it is right for us to insist upon them.
The noble and learned Lord the Lord Chancellor sought to draw some comparison between the composition of this House and another place. He did not go so far as to suggest that this House was not entitled to pass those Amendments. He did not go so far as to suggest that this House ought not to be vigilant in protecting the rights of individuals. 47 whether those rights are liable to be affected by trade unions or any other body. I firmly adhere to the right—I believe it to be a valid right of this House, when it feels that something which is not of a drafting character, and which is wrong, has been inserted in a Bill—to give expression to that view and to ask the other place to give reconsideration to it. If your Lordships look back in the history of this House you find that that has been done on a great many occasions. It was done a great many times in the course of the 1945–51 Parliament, and I maintain we acted fully within our rights and with full constitutional propriety in taking that course here.
I was interested to note that when, in relation to the Murder (Abolition of Death Penalty) Bill it came to the Government Benches' wishing to reverse a decision which the House of Commons had arrived at, on a free vote, by a majority, there was no suggestion that this House would be doing anything that it ought not to do. Yet, when we moved these Amendments in the course of the Committee stage of this Bill, we were told by the noble Lord, Lord Citrine, that we were thwarting the will of the House of Commons. There was not a word of that, of course, when we were asked by the noble and learned Lord the Lord Chancellor to disagree with provisions which had been put into the Murder Bill by a majority on a free vote.
Now we have to consider whether to insist on these Amendments. I have thought a great deal about it. I must say that in the decision at which I personally have arrived I have not been influenced by any of the observations which the noble and learned Lord the Lord Chancellor thought fit to address to us this afternoon, but I have myself come to the conclusion that it would not be right for me—and I moved these Amendments—to invite your Lordships to insist upon them, and I should just like to explain the reasons why. The decision in Rookes v. Barnard was of a very limited character. It applied where there was a threat to strike in breach of contract, and only where there was a threat to strike in breach of contract; and it applied only where that was done with the object of inducing an employer to take action which would cause loss to a third person. 48 It is a narrow issue. In my belief, there is a very important principle involved, but, in view of the kind of observations which have been made—inaccurate, I would say with great respect, as I think they were—by the noble Lord, Lord Citrine, and others, I am wondering very much whether the nature of the principle at stake would be fully appreciated throughout the country.
I would be inclined to ask your Lordships to insist on the Amendments whether or not one could make it clear to the people in the country what really was at stake were it not for the fact that a Royal Commission has been appointed, and were it not for the fact that it has now been made patently clear that it will be well within the Royal Commission's powers to reverse this provision in the Bill and to make it clear that trade unions which are seeking leave to retain these powers of victimisation should no longer enjoy them. What the Royal Commission will do, one does not know; but it is quite clear that, despite the passage of this Bill, they will not be inhibited by the contents of the Bill in any recommendations they may make. I think that is a significant factor.
I am sure the House was right to ask the Commons to consider this question again. The Commons have now considered it, they have expressed their view; and, my Lords, I believe it would be right that we should leave it at that. For once, my Lords, I agree with what was said in a leading article in The Times, of Saturday, June 26, 1965. The last two sentences of that article were:It would be premature to provoke a political battle and all that at this stage. The time for a battle, if there has to be one at all, is when the commission reports.
§ 4.45 p.m.
§ LORD CONESFORD
My Lords, I agree with my noble and learned friend, both in regretting the rejection of our Amendments by another place and in the advice which he has given that we should not insist on these Amendments. In that, I agree also, though for very different reasons, with the noble and learned Lord the Lord Chancellor. One of the things that I regretted, if I may say so, in the Lord Chancellor's speech was that he stated some additional facts about the plaintiff in the litigation Rookes v. Barnard which I think may 49 have had the effect of suggesting to some who did not know all the facts that perhaps we ought not to have too much sympathy with him for being the subject of victimisation. On that matter, I propose later in my speech to remind your Lordships of a paragraph of the speech of the noble and learned Lord, Lord McNair, on the last occasion—a speech which very much impressed the Committee.
The Lord Chancellor said, quite rightly, that among those who spoke in favour of the Amendments which we sent to another place there were a number of lawyers, and he included me. It is true that I am a lawyer: it is also true that for some twenty years I was a Member of the House of Commons, for the greater part of which I was Member for an industrial constituency, where I perhaps became acquainted with as many trade unionists concerned with what happened on the factory floor as the Lord Chancellor himself may be acquainted with through his legal attainments and his experience at the Bar. But what makes me a little sad about the proceedings in another place is that so many of those who spoke about our Amendments appeared not to have understood either the Bill or the Amendments, if in fact they had read either.
The subject matter of the Bill is the threat to break contracts of employment, and the Bill provides that such threats cannot be made the ground of action if the threats are made "in contemplation or furtherance of a trade dispute." Even without the Bill such threats could very seldom be made the ground of a successful action, but the case of Rookes v. Barnard showed that they could sometimes and that the plaintiff could recover damages for the tort of intimidation.
Perhaps I might remind the House of the effect of the case, as described in one of the learned articles to which the noble and learned Lord on the Woolsack referred. This is what Mr. Hoffmann said, in his article in the Law Quarterly Review, which I quoted on the Second Reading of this Bill:What the case does decide is that the threat of a strike in breach of contract cannot be used to compel an employer to inflict loss upon some third party.The special privilege created by the Bill would not, under our Amendments, be 50 available if the threat was made to secure the termination of a person's employment. But in view of the great misrepresentation of the effect of the Bill and of our Amendments, perhaps I might remind the House of two things that are not done under the Bill or the Amendments.
It is quite untrue to say that the Amendments would paralyse all threats of strikes: they would do nothing of the kind. A strike is a concerted withdrawal of labour; it is not necessary for every concerted withdrawal of labour to involve a breach of contract. Strikes that do not involve breaches of contract are quite unaffected both by Rookes v. Barnard and by the Bill. Another thing that it is quite untrue to say is that as a result of Rookes v. Barnard, or of our Amendments, any liability of any sort is imposed on a trade union. That is wholly false. The trade union is absolutely immune from any liabilty for the tort of intimidation and for every other tort under Section 4 of the Trade Disputes Act 1906. It is, I think, important that the House should bear in mind that neither of those things is involved.
There are two passages in the speech of the right honourable gentleman, the Minister of Labour, in moving the rejection of our Amendments in another place, on which I should like briefly to comment. The right honourable gentleman—for whom I, a many others, entertain a high regard—assumed that the only concern of those who backed the Amendments was the position of the individual who refused to join, or to remain a member of, a trade union, and the difficulty that he might find in a closed shop or a union shop. He pointed out that what we had done by our Amendments would give only partial and inadequate protection, because they gave no protection to him at all if no contracts were broken. Of course that is true: they will not. Our Amendments deal only with the Bill before us; and the subject matter of that Bill is threats to break a contract. There are all sorts of subjects not dealt with by the Bill or by our Amendments. So that objection has no validity at all. The Minister then went on to say that trade union officials are not lawyers and cannot deal with these fine distinctions. Is that really a reason 51 for permitting intimidation and victimisation?
Nevertheless, my Lords, I support the noble and learned Lord the Lord Chancellor in advising the House not to insist on our Amendments. I give that advice because three things will have been achieved by our Amendments if we now accept the Lord Chancellor's Motion, as I suggest we should. The first is contained within the Commons' Reason for rejecting our Amendments. Perhaps I might read the passage to remind the House of it. This is the Reason they gave:Because the Amendments would unreasonably limit the operation of the Bill, which is to facilitate the resolution of matters at issue as between employers and employed in industry, pending the consideration of such matters generally by the Royal Commission on Trade Unions and Employers' Associations.So, by the express terms of a document coming from the House of Commons, it is set on record that the provisions of this Bill are intended to be temporary.
Secondly, we have achieved this: that even as a temporary solution it could command a majority of only three in the present House of Commons; both the Tory and the Liberal Oppositions voted solidly against the rejection of our Amendments. Thirdly, as my noble and learned friend Lord Dilhorne pointed out, the effect of passing this Bill with our Amendments deleted will be not simply to free individuals who might have been liable from indirect effects feared as a result of Rookes v. Barnard, but to bar absolutely a man treated as Mr. Rookes was treated from having any remedy at all. And I believe that the Royal Commission will have no hesitation whatever in dismissing that proposition: that it is right that a man who suffers such victimisation should have no remedy whatsoever. There will be no temptation to ignore the issue; and, indeed, no possibility of the issue being ignored.
Now, my Lords, if I may, I will remind the House of one paragraph from the speech of the noble and learned Lord, Lord McNair, supporting my noble and learned friend's Amendments on the last occasion. He said:If any noble Lord will read the Opinions of the noble and learned Lords in deciding the case of Rookes v. Barnard in this House, I think he will come to the conclusion that there is only one word that describes the action 52 of the trade union in question towards Mr. Rookes. That is the word that was used by the Minister of Labour on the Second Reading of this Bill in another place, and used to-day by the noble and learned Viscount, Lord Dilhorne, in his opening speech—namely, victimisation. There is no other word for it. In the hope of preventing repetition of that treatment, unless and until it should be endorsed by the Royal Commission on Trade Unions and Employers' Associations, I would urge the Committee to adopt the Amendment moved by the noble and learned Viscount. Lord Dilhorne, which w ill have the support of my noble friends on these Benches."— [OFFICIAL REPORT, Vol. 267 (No. 91), col. 651, June 24, 1965.]If it is suggested that we should be debarred from having any sympathy by some faults in Mr. Rookes, then I ask the House to remember those words of the noble and learned Lord, Lord McNair.
There are only two other matters to which I wish to allude before sitting down. The noble and learned Lord who sits on the Woolsack mentioned the Universal Declaration of Human Rights; and I think he added a sentence, the exact terms of which I forget, but on which I should, I think, support him, about the uncertainty of the precise effect this Declaration would have on our municipal law. What I suggest that we should consider in relation to that Universal Declaration is this. Whether it puts the countries who approved that Universal Declaration under any obligation to legislate, I do not know, and of that I say nothing. But where we discover that the municipal law of the country in fact gives a remedy at law to a man who is treated in disregard of that convention. I think it a little odd that we should be so ready to sweep away that protection.
One other matter which I should mention is directly raised by this Bill with which we are now dealing for the last time, before the problem comes before the Royal Commission. It is the question of breach of contract. My Lords, I commented before on the extraordinary supposition that the most urgent thing to do in legislation on the subject of trade unions, trade unionists and industrial relations is to facilitate threats of breach of contract. So far from its being true that breaches of contract are an essential feature of all negotiations and labour relations, I trust that the Royal Commission will consider another possibility, that what may be wrong with our existing law on the subject may be that it has 53 too many provisions which facilitate breaches of agreements; and that the aim in a civilised society should be that agreements, once made, should be observed.
My Lords, this Bill may be regarded as the extension of what is enacted by Section 3 of the 1906 Act. I think that the Royal Commission may come to the conclusion that Section 3 already goes too far. I hope that they will consider evidence in proof of that proposition. For the reasons which I have given, I agree with the advice given by the noble and learned Lord on the Woolsack. I agree also that this House was right to pass these Amendments and send them to another place where they were defeated by a majority of only three.
§ 5.3 p.m.
§ LORD CITRINE
My Lords, I should like first to congratulate the noble and learned Viscount, Lord Dilhorne, on accepting the wise advice of the leader writer in The Times of June 26. One is tempted to follow some of the arguments raised this afternoon. Some were reiterating, in other words, what was said in earlier debates, and I must try to resist the temptation to do the same. I wish to make perfectly plain to the noble and learned Viscount, and to the Leader of the Opposition, that I have never at any time in this House disputed the constitutional right of the House of Lords to amend legislation from the House of Commons. I have said that on any matter of high principle which has been determined in the House of Commons this House has no representative capacity which entitles it to reject that principle. I repeat that now, and I believe that in time it will dawn on noble Lords that there is truth and substance in my contention.
The noble and learned Viscount, Lord Dilhorne, could not resist trying to get Party political advantage out of the reference to the Queen's Speech. He used words to the effect that the Government were not concerned with preserving the liberty of the individual. That is a distortion of a political character. It is perfectly evident that, in this practical world, if an employer has to choose between the liberty of an individual and the liberty of thousands of people who decline to work with the one, the em 54 ployer is bound to decide with the majority. That is a principle of democratic government. It may be that at some time noble Lords opposite will realise that in the trade union movement there has been a long history of sustained action on behalf of the individual in face of despotic conduct on the part of their employers. That is where has been the true protection of the liberty of the individual.
I should be very reluctant to accept an interpretation of trade union law from the noble and learned Viscount, Lord Dilhorne. Frankly, I do not think that he understands it. He probably read a snippet or two from my son's hook on trade union law, or perhaps the information was supplied to him by the research department of the Conservative Party. I am quite sure that the noble and learned Viscount never got down to the depths of trade union law in the way in which the noble Lord, Lord Conesford, has done. The noble Lord talks with knowledge. I cannot pay that compliment to the noble and learned Viscount.
I spoke about tyranny, and I am glad that the noble and learned Lord on the Woolsack also referred to it. Tyranny has gone on for too long in industry, but it has been practised from one side and from one angle—that of the employer. In reading debates on this subject I cannot remember any occasion when a representative of the Conservative Party, at least a prominent representative, ever denounced that kind of tyranny. But when something is deemed, for political reasons, to be tyranny, then, of course, we find noble Lords of the Conservative Party, and Party supporters in another place, very keen to give expression to it. Think, for example, of the perversion in the remarks attributed to Mr. George Woodcock. I do not know what newspaper was seen by the noble and learned Viscount, Lord Dilhorne, or what precise opinion was attributed to Mr. George Woodcock by that newspaper. Again, it may be that it is an interpretation of something which appeared or was attributed to Mr. George Woodcock. But when it is suggested that Mr. Woodcock has stated that he was going to censor the evidence of the trade unions before it came to the Royal Commission, I say, 55 whoever may have been responsible, that it is a complete perversion.
What Mr. Woodcock has asked is what I should have asked when Secretary of the Trades Union Congress. I should have said to union representatives, "Let us see your evidence before you put it in, because there may be some point which is obscure or inaccurate and, with the help of our research department and our legal department, we may be able to help you to state it more clearly and to get the facts properly marshalled." No trade union attached to the Trades Union Congress would for a moment tolerate censorship by the Congress, and if he reflects at all, the noble and learned Viscount must realise that. The Trades Union Congress is a body which has tried to lift the standard of trade unions within the community and has tried to give the movement a measure of respectability, even of dignity, and I think it bordering on the slanderous that the Congress should be accused in that way.
We have heard on several occasions during our debate references to the Royal Commission. It occurred to me, while the noble and learned Viscount, Lord Dilhorne, was speaking, that he would make a splendid witness, were he kind enough—again perhaps with the assistance of the Conservative Party's research department—to give evidence before the Commission. I should dearly like the opportunity, through my friends on the T.U.C., to put a few questions to the noble and learned Viscount to sound the depth of his knowledge.
§ THE LORD CHANCELLOR
My Lords, I am naturally glad that your Lordships have arrived at the same conclusion as was contained in the advice which I ventured to put before your Lordships' House, if not for precisely the same reasons. But, in view of this happy unanimity, I do not think that any useful purpose would now be served by a further discussion of those different reasons. The noble and learned Viscount and the noble Lord, Lord Conesford, have suggested to the Royal Commission what they ought to do. I should be tempted to do the same, but may I limit myself to the observation that they may care to remind themselves of the judgments of Lord Justice Scrutton and the Lord Advocate in cases like Hodges v. Webb, 56 in which they pointed out that the law in this field would never be sensible until Judges stopped using emotionally toned phraseology such as, "threat", "victimisation" and "intimidation", and stated in ordinary English the facts they were seeking to describe.
§ On Question, Motion agreed to.