Lords Sitting of 15 June 1965

Preamble
The House met at half past two of the clock, The LORD CHANCELLOR On the Woolsack.
Prayers—Read by the Lord Bishop of Exeter

BARONESS SPENCER-CHURCHILL
Dame Clementine Ogilvy Spencer-Churchill, G.B.E., widow of the Right Honourable Sir Winston Churchill, K.G., O.M., C.H., having been created Baroness Spencer-Churchill, of Chartwell in the County of Kent, for life—Was (in the usual manner) introduced.
The Viscount De L'Isle—Took the Oath.

DIRECTION INDICATORS ON MOTOR VEHICLES
2.40 p.m.
LORD FERRIER: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government whether they will introduce legislation to make direction indicators obligatory on all motor vehicles.]
THE PARLIAMENTARY SECRETARY, MINISTRY OF TRANSPORT (LORD LINDGREN): My Lords, most four-wheeled vehicles are now fitted with some
2
form of direction indicator. New standdards have been set by Regulations for indicators fitted to vehicles first registered after next August. We shall consider compulsory fitment when the effectiveness of these standards has been confirmed.
LORD FERRIER: My Lords, while thanking the noble Lord for his reply and appreciating the need for these Regulations, may I ask whether he would agree that so long as all vehicles are not compelled to be fitted with direction indicators there is increasing danger of accidents as traffic increases? Might I ask the noble Lord to ask his right honourable friend to consider whether, as a first step, it would be proper to make it obligatory for all vehicles using motorways to be fitted with traffic indicators?
LORD LINDGREN: My Lords, as these Regulations apply to both private cars and commercial vehicles I think it would be difficult to discriminate between vehicles purchased prior and subsequent to next August on motorways, particularly as motorways and transport have a great effect upon the export trade of this country.
THE EARL OF GOSFORD: My Lords, may I ask the noble Lord whether in fact the standards are flashing lights and not indicators?
LORD LINDGREN: My Lords, as the noble Earl appreciates, the Regulations have been agreed upon internationally. They also have been agreed upon with the motor manufacturers and they cover the number of lights, the type, the colour, the size and the position from which the light is visible. At the moment they do

3
not cover the question of intensity of light, but we hope that will be the next step, and that it will also include the question of dual intensity, day and night.
LORD SOMERS: My Lords, would the noble Lord agree that it is in the case of commercial vehicles, particularly large ones, which make it difficult for the driver behind to see ahead, that the provision of indicators should be made compulsory?
LORD LINDGREN: Yes, my Lords; and, of course, after September 1 next they will be compulsory for new vehicles.

CELEBRATION OF OLD BATTLES
2.50 p.m.
LORD KENNET: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government whether it is now their general policy to invite representatives of the Governments of those countries now allied to us, which we have in former centuries defeated in battle, to meet us at intervals of a century or less on the battle-fields concerned.]
THE PARLIAMENTARY UNDERSECRETARY OF STATE FOR FOREIGN AFFAIRS (LORD WALSTON): My Lords, the Answer is, No.
LORD KENNET: My Lords, are the Government aware of the satisfaction with which that Answer will be greeted, in view of the fact that the impression had got around that we had invited representatives of the French Government to meet us and celebrate on the battlefield at Waterloo; and what would be the reaction of Her Majesty's Government if they were invited by the American Government to a drink at Yorktown in 1981?
LORD WALSTON: My Lords, it is a little difficult to predict the attitude of any future Government so far ahead. I think it is not unknown for the United States to invite representatives of Her Majesty's Government to their celebrations on the Fourth of July.
THE EARL OF DUNDEE: My Lords, is the noble Lord aware that there were
4
quite a few Englishmen present when, on June 24 last year, the Queen unveiled a statue to commemorate the 650th anniversary of the Battle of Bannockburn?
THE EARL OF GOSFORD: My Lords, would not the noble Lord agree that this proves we forgive our enemies?
LORD NEWTON: My Lords, the next time could they not be invited to meet on the playing fields of Eton?
BARONESS HORSBRUGH: My Lords, is it not the case that next year we are to celebrate the Battle of Hastings? Are we then going to start celebrating all the times of our defeats?
LORD WALSTON: My Lords, I do not know precisely what are the arrangements for marking the Battle of Hastings; but I never realised, although I am not a good historian, that the Battle of Waterloo was a British defeat.
BARONESS HORSBRUGH: Is that why we are now to make things even, and celebrate the Battle of Hastings, which I think the noble Lord will say was not a British victory?

U.N. SPECIAL COMMITTEE AND THE ADEN BASE
2.55 p.m.
THE EARL OF DUNDEE: My Lords, I beg to leave to ask the Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government whether they will publish in the OFFICIAL REPORT the resolution on Aden adopted on May 17 by the United Nations Special Committee on Colonialism; whether it is a fact that this resolution demands the removal of our military base at Aden, a general election supervised by the United Nations, and the grant of immediate independence; and whether Her Majesty's Government have represented to the Secretary-General that this resolution is an attempt to interfere with the internal affairs of member states, which is contrary to the United Nations Charter.]
LORD WALSTON: My Lords, in answer to the first part of the noble

5
Earl's question, the resolution to which the noble Earl refers is available in the Library of the House. The answer to the second part of the Question is in the affirmative. The United Kingdom voted against this resolution, and in his explanation of his vote the United Kingdom representative said that the reference to the base went beyond the Committee's terms of reference. He also pointed out that reference to the holding of general elections and the granting of immediate independence seemed to prejudge the work of the Constitutional Commission, which the resolution had failed to mention.
The answer to the third part of the Question is in the negative. Her Majesty's Government's position on the resolution was made clear by the fact that we voted against it. We have of course always made it clear that the responsibility for British dependent territories is ours alone and that we cannot accept intervention from outside. It remains the policy of the Government to co-operate so far as possible with the United Nations. We therefore continue to serve as a member of the Special Committee on Colonialism, to give information to the Committee, to explain the problems of our colonial territories and to reply to criticism of our policies.
THE EARL OF DUNDEE: My Lords, may I ask the noble Lord whether he is aware that we are spending hundreds of millions of pounds, to the great disadvantage of our balance of payments, at Aden and elsewhere, in defending the freedom and independence of most of this Committee of 24 who spend all their time in demanding that we should withdraw from Aden? Is the noble Lord aware that our action in continuing to serve on this Committee is interpreted very widely in the United Nations, not as an act of good nature and good will on our part but as a confession of colonialist guilt, and is it not about time that we ceased to serve any further as a member of this Committee of extremely mischievous meddlers who are acting contrary to Article 2 of the United Nations Charter?
LORD WALSTON: My Lords, I am not aware that the reaction in the United Nations and in countries throughout the world is that described by the noble
6
Earl. I think that if anybody took the trouble, as I am sure the noble Earl has done, to read the statements made by our representative at the United Nations on these occasions, there could be no excuse whatsoever for him to feel the way the noble Earl has described, and I hope that if he comes across people who feel that way he will refer them to, or quote to them, extracts which make this absolutely clear. I would once more say that we are always glad to co-operate with this Committee. We believe that. although it does some things of which we do not approve, it also serves a useful purpose, and as one of the Committees of the United Nations, of which we are members, we believe that we should give it such support as we can.
VISCOUNT DILHORNE: My Lords, do Her Majesty's Government regard this resolution as contrary to the United Nations Charter, Article 2, subsection (7), and if so does the willingness to co-operate extend to co-operating with regard to the passage of such resolutions?
LORD WALSTON: My Lords, I have already made it clear in my answer just where our responsibility lies and just where we consider the responsibility of this Committee lies, and there can be no misunderstanding about that. And we have also made it clear, in voting against the resolution, how we feel about it. I would remind the noble and learned Viscount that, in any case, the resolution is not a mandatory one.
VISCOUNT DILHORNE: My Lords, would the noble Lord be good enough to answer the first part of the supplementary question: Do Her Majesty's Government regard this resolution as contrary to Article 2, subsection (7) of the United Nations Charter?
LORD WALSTON: I will gladly answer that if the noble and learned Viscount will put down a Question on its own, rather than putting it as a supplementary.
VISCOUNT DILHORNE: The noble Lord will see it is asserted in the original Question, at the end, that it was contrary to the United Nations Charter, so the question does arise directly out of the Question asked. I should be grateful for the information. If the noble Lord cannot give it now I will certainly take the course he has suggested and table a Question.
THE DUKE OF DEVONSHIRE: My Lords, would Her Majesty's Government not agree that, while we remain members of this Committee, although we voted against the resolution we are condoning the activities of this Committee? To oppose consistently what the Committee votes for and yet remain members of it seems to me both contemptible and dishonourable.
LORD WALSTON: My Lords, I think I have already answered that, but I will repeat the answer and say that, by remaining members of the Committee and by speaking, as we have done, and showing our views, we are not condoning anything of which we disapprove but are making our position abundantly clear.
LORD CONESFORD: My Lords, would it be too great a revolution in practice to insist that knowledge of the Charter was a condition of membership of the Committee?

COMMONWEALTH IMMIGRANTS
LORD SHEPHERD: My Lords, at a suitable moment after 3.30 my noble friend the Leader of the House will be making a Statement on Lord Mountbatten of Burma's Report on Commonwealth Immigration.
UNIVERSITY OF LEEDS BILL
Read 3a, with the Amendment, and passed, and returned to the Commons.
BRIGHTON SKYDECK BILL [H.L.]
Read 3a, and passed, and sent to the Commons.

BUSINESS OF THE HOUSE
LORD SHEPHERD: My Lords, on behalf of my noble friend the Leader of the House, I beg to move the Motion standing in his name.
Moved, That Standing Order No. 35 (Arrangement of the Order Paper) be dispensed with To-morrow for the purpose of giving precedence to the Lord Privy Seal's Motion over that of the Lord Wade,—(Lord Shepherd.)
On Question, Motion agreed to.

MINISTRY OF HOUSING AND LOCAL GOVERNMENT PROVISIONAL ORDER (MELTON MOW BRAY) BILL
3.0 p.m.
Order of the Day for the Second Reading read.
THE JOINT PARLIAMENTARY SECRETARY, MINISTRY OF LAND AND NATURAL RESOURCES (LORD MITCHISON): My Lords, I beg to move that this Bill be now read a second time. This Bill and the two following Bills are to confirm Provisional Orders made under Section 303 of the Public Health Act, 1875. That section enables the Minister of Housing and Local Government, on the application of a local authority, by Provisional Order to repeal or amend provisions in that authority's own local Acts which relate to the same subject matter as the 1875 Act itself. These Orders are subject to confirmation by Parliament, and it is a convenient method of proceeding where there is no opposition. In all these three cases there have been local advertisements and no objection of any kind.
The first Bill, the Melton Mowbray Bill, which we are now considering, is to enable the local authority to set up a reserve fund for their cattle market undertaking, in order to avoid their having to meet the costs of improvement to the market or anything of that sort out of the current annual revenue. I do not know whether it would be convenient to mention at the same time the two following Bills. They are quite similar. They are to enable the local authorities concerned to alter from time to time market charges which are prescribed under existing local Acts—to enable them to do it in a more convenient way, actually in the same way as in the Food and Drugs Act, 1955. My Lords, I beg to move that this Bill be now read a second time.
Moved, That the Bill be now read 2a.—(Lord Mitchison.)
On Question, Bill read 2a.

MINISTRY OF HOUSING AND LOCAL GOVERNMENT PROVISIONAL ORDER (NEWTON-LE-WILLOWS) BILL
Read 2a (according to Order).
MINISTRY OF HOUSING AND LOCAL GOVERNMENT PROVISIONAL ORDER (ROTHERHAM) BILL
Read 2a (according to Order).

CALF SUBSIDIES (UNITED KINGDOM) SCHEME 1965
3.3 p.m.
THE MINISTER WITHOUT PORTFOLIO (LORD CHAMPION): My Lords, I beg to move that the draft Calf Subsidies (United Kingdom) Scheme, 1965, be approved. This Scheme, which was laid before Parliament on May 13, extends the arrangements for the payment of calf subsidies for a further period of three years, the maximum permissible under the Agriculture (Calf Subsidies) Act, 1952. If any changes are necessary within the three years it will be possible to make a variation scheme. There are four ways in which this Scheme differs from its predecessors. First, it is a joint scheme, made by the Minister of Agriculture, Fisheries and Food and the Secretary of State for Scotland, for the whole of the United Kingdom. Secondly, the Scheme provides for the increase in rates of 10s. 0d. per head on both steer and heifer calves which was determined at the last Annual Review. For animals born on or after January 1, 1965, the rates of subsidy will be £8 for eligible heifer calves and £10 5s. 0d. for eligible steer calves. Thirdly, the new Scheme removes any doubt there might have been about the eligibility for subsidy of a calf which is ready for slaughter at the date of certification.
Lastly, the new Scheme does not provide for an unalterable minimum age limit. It is, however, our intention to continue for the time being the present arrangements under which calves are not in general inspected until they are eight months of age. There will, as before, be an exception to this: calves born in
10
the spring in a hill area where there is inadequate winter feed on the farm, so that they must be sold in the following autumn, will, as hitherto, be inspected from six months.
To clear up any misconceptions, I should perhaps say that the Scheme now before your Lordships is not concerned with the extension of the subsidy arrangements which the Government announced at the last Annual Review. Under that proposal, subsidy will be paid on the carcases of home-bred animals which are certified on a deadweight basis for fat-stock guarantee and which have not previously received calf subsidy. This extension of the subsidy arrangements will in due course require further legislation, which your Lordships will of course have an opportunity to debate. We hope, however, to be able to start payments this autumn under the authority of the Appropriation Act. The calf subsidy is intended to encourage the retention and the rearing of calves for beef production. Over the years there has been a substantial increase in the number of home-bred calves which have been reared. The increase in rates provided for in this new Scheme will provide additional encouragement for those engaged in beef production. I therefore confidently commend the Scheme to your Lordships' approval.
Moved, That the Calf Subsidies (United Kingdom) Scheme 1965, be approved.—(Lord Champion.)
3.7 p.m.
EARL FERRERS: My Lords, I am sure that noble Lords on this side of the House will welcome Lord Champion's description of this Order. It will indeed be welcome in all parts of the farming community because, first, it puts up the rate of calf subsidy by 10s. That in itself may not make a great difference, but the important part of this increase is the fact that it is an incentive to farmers to encourage their beef production. If this production is not encouraged quite considerably over the course of the next few years, we shall find that we have not enough beef animals to provide the carcases which will be required for slaughter.
Secondly, this Scheme widens the scope of animals to which the subsidy is applicable. From that point of view also it

11
can be welcomed. Here I should like to congratulate the noble Lord, Lord Champion, or his right honourable friend, or whoever is responsible, for doing what I as a layman thought it completely impossible to do—I have never quite understood why—and that is to succeed in making one Scheme for the whole of the United Kingdom, instead of having two schemes, one for Scotland and the other for England and Wales and Northern Ireland. I am not quite certain whether it is the Scottish people who have capitulated, or whether it is the English, Welsh and Northern Irelanders who have been able to forgo a single scheme. But I feel sure that it is wholly to the good that we have one scheme only and not two.
I should be grateful if the noble Lord would explain one point with regard to this Scheme. He did touch upon it. The Scheme omits the date or the minimum age at which a calf is eligible. It is accepted practice that no calf is eligible for a subsidy until eight months old, but this does not appear in the Order, and, as I read it, it is perfectly possible for a farmer to apply for a subsidy in respect of a calf which is four or five months old, and there is nothing in the Scheme to prevent the Ministry from paying it off. I shall be grateful if the noble Lord will explain precisely what are the limits which prevent the Ministry from paying out a subsidy on a calf under eight months of age, and where those limits are set out. Apart from that, we on this side of the House wholly approve of this Scheme.
LORD CHAMPION: My Lords, I am grateful to the noble Earl for the welcome which he has given to the Scheme. The incentive is to try to secure additional beef in this country, and the same consideration applies to the hill cattle subsidy which is designed for the same purpose. The fact that we have achieved one Scheme for the whole country seems to me to be an eminently sensible thing to do. It is not a case of capitulation either by the appropriate Department for England and Wales or by the Scottish Department concerned: it is a matter of mutual agreement which I regard as wholly satisfactory. The subsidy under the previous Schemes was confined to eight months for a calf, with the exception of bill calves where the winter keep
12
might be short and the period was six months. The age limit has been found to be restrictive in some cases. It has not been included in the Scheme, but it has been made clear to farmers generally that the periods of eight months and six months will apply. It will allow a little latitude to the certifying officers in some cases where the calves may be just under eight months—a calf might be seven months and 28 or 29 days, or something of that sort. The limit has been a little too restrictive, and we thought that if we were to leave out the actual period it would be of some advantage to agriculture and also would save the time of the certifying officer.
EARL FERRERS: My Lords, I am grateful to the noble Lord, but could he be a trifle more specific? If a farmer applies for subsidy for a beast of four, five or six months, is there anything in the scheme to prevent the Minister so certifying? I know that it is the practice for them not to be certified, but is there any reason why they should not be certified?
LORD CHAMPION: None, except that the administrative considerations will be such as to prevent its happening in the sort of case which the noble Earl has brought to our attention.
On Question, Motion agreed to.

SILO SUBSIDIES (ENGLAND AND WALES AND NORTHERN IRELAND) SCHEME 1965
3.12 p.m.
LORD CHAMPION: My Lords, I beg to move that the Silo Subsidies (England and Wales and Northern Ireland) Scheme, 1965, be approved. I suggest that it may be for the general convenience of the House if we discuss at the same time the Scottish Order which is in similar terms. Both Schemes require to be approved by a Resolution of the House. These Schemes are made under the authority of the Agriculture (Silo Subsidies) Act, 1956, and will enable silo subsidies to continue to be paid after the end of next month and so give applicants a final opportunity to apply for a subsidy. The present Schemes,

13
which were made in 1962, end on July 31 this year. The Schemes now proposed will allow applications to be made up to July 31, 1966, and approved up to the end of that year. The 1965 Schemes will run precisely on the same lines as those for 1962.
The Silo Subsidies Schemes offer grants towards the cost of constructing or improving silos for the ensilage of grass or other green matter. The first Schedule to the Schemes explains what the rates of subsidy are for the various operations in constructing or improving a silo and it will be seen that, as in previous schemes, there is a £250 limit to the amount of grant which may be paid on any one agricultural unit. Within this figure, there are separate maxima of £125 for work on silos, excluding the roof, and £125 for work on the roof. These limits were set because the object of the grant is not to provide a continuing support to the construction of all silage buildings, but to improve grassland management by encouraging farmers, particularly small farmers, to start making silage and to accept advice from the National Agricultural Advisory Service.
The subsidies have achieved a considerable measure of success in furthering this objective, and since they were introduced in 1956 no fewer than 50,000 applications have been approved in the United Kingdom at a total grant cost of over £8 million. Demand in the early years of the subsidy was high. In 1957 over 13,000 applications were approved in the United Kingdom involving grant of just over £2 million. But, as might be expected with a "once-only" subsidy of this nature, applications became fewer as the subsidy progressed, and in 1964 they had fallen to 2,000 a year in the United Kingdom at a grant cost of £300,000. We regard this as an indication of the success of the subsidy rather than the reverse, and we consider that the subsidy has now served its purpose and can be brought to an end with the one-year 1965 Schemes. This will give those who have not yet benefited from the subsidy clue notice of its termination and a last chance to put in their applications.
Moved, That the Silo Subsidies (England and Wales and Northern Ireland) Scheme 1965, be approved.—(Lord Champion.)
3.15 p.m.
LORD FORBES: My Lords, the Silo Subsidy Scheme was an excellent scheme—unfortunately, the operative word is "was". To-day it still sounds as if it is a good scheme. In actual fact, it is nothing more than pure "shadowboxing". The scheme was originally introduced in 1956, as we have heard from the noble Lord. It was then introduced as a sort of education for farmers in the making of silage for winter feed. It has had the desired effect: it has aroused interest in silage-making, so that to-day there are very few farmers in the country who do not possess the knowledge of silage-making.
Agriculture in this country has advanced by leaps and bounds during the last ten years. What is wanted now is the construction of silos so that silage can be made not just in hundreds of tons but in thousands of tons. The more home-grown fodder can be conserved for winter the less imported foodstuffs we shall need. This surely must make a contribution to our balance-of-payments problems. I should have thought that it was something that even this Government cannot afford to ignore. Instead of farmers being encouraged to build silos and make silage, as they have already been educated to do, one finds that it is the Farm Improvement Scheme, not the Silo Subsidy Scheme, which gives up to a third grant and which has done so much to bring British agriculture to the forefront of world agriculture by assisting farmers and owners not only in carrying out improvements but also in erecting every type of farm building—except the very buildings which are wanted, silos. Silos can qualify under the Farm Improvement Scheme in only very limited circumstances. It is in this matter that the great anomaly, the sham, exists, and it should be brought to light to-day.
It is a well-meaning Scheme, but all that it is doing to-day is holding back the making of silage. It is being used to deny the farmer or the owner the opportunity of getting Farm Improvement Scheme grants. To-day a silo, especially a tower silo holding from 800 to 1,000 tons of silage for a 250 to 300-acre farm, can cost anything up to £3,000, and it can cost even more. For that the only grant is £250—well under 10 per cent.—from the Silo Subsidies Scheme, yet for

15
Dutch barns and all other buildings the grant is over 33 per cent. It just does not make sense.
I believe that there is another anomaly which should be brought to light. If two smallholdings are being amalgamated, which naturally means that more silage is required, and the grant under the Silo Subsidies Scheme has already been paid on one of the holdings, it is then impossible to get a grant on the enlarged holding. The solution must obviously be that silos should qualify at once under the Farm Improvement Scheme, and the Silo Subsidies Scheme could then be dropped—not next year but this year. I know the difficulty, as do many of your Lordships, in that the Farm Improvement Scheme is running short of money; but if it is judged to be a good scheme, then the answer is that more money must be voted for it. That, I am quite certain, is the only way to get round this blatant anomaly. I ask the Minister to give an undertaking that Her Majesty's Government will do what I have suggested as quickly as possible.
EARL FERRERS: My Lords, I was interested in the figures which the noble Lord, Lord Champion, gave of the number of applications for silo subsidies, which he said had been gradually decreasing. I think that is perfectly true, and the appearance throughout the country is that there are far fewer people applying for the silo subsidy. Half the reason is that nowadays one can get a farm improvement grant on a silo which is placed underneath a covered barn, and that is the way in which a number of farmers are making their silage. What my noble friend Lord Forbes has said is perfectly true. There is a very strong case for incorporating the Silo Subsidies Scheme in the general Farm Improvement Scheme. This Scheme was produced before the Farm Improvement Scheme was brought out and was excellent for its purpose, but I think there is now a strong argument for bringing it in with the Farm Improvement Scheme. Would the noble Lord be good enough to say whether, when the Silo Subsidies Scheme comes to an end, the provisions of it will be incorporated in the Farm Improvement Scheme?
LORD CHAMPION: My Lords, I agree with the noble Lord, Lord Forbes,
16
that this Silo Subsidies Scheme has done precisely what it was initially intended to do by the Administration which passed the original Act; and that was to serve an educating purpose. That has been done. But I noticed in a farming paper over the weekend that even now there is not sufficient silage made in Wales, where it clearly ought to be, as that is a country which has a lot of rain and does not get good haymaking weather. There is still a lot to be done on this business of education, but we are not ignoring the comparative success of the Scheme up till now. We are continuing it for a further period—only a short period, it is true—but in the meantime, as I told the noble Lord, in answer to a Question which he put down to me some time ago, this matter is being reviewed in conjunction with the preparation for the Annual Review. I can tell him that consideration as to whether we include silos, and in what form, in the Farm Improvement Scheme for the future is still in progress. The Department hopes to conclude its consideration of this matter long before this Scheme comes to an end. Does the noble Lord wish to interrupt?
LORD FORBES: My Lords, the noble Lord said that there were still farmers in Wales to be educated. May I suggest that the quickest way of educating them is to give them a 33⅓ per cent. grant, rather than £250?
LORD CHAMPION: My Lords, I am not too sure that grants always educate, although they can help in some respects. But this is really a matter for the benefit of the farmer himself, and he ought to learn, even without the benefit of a subsidy. It is a bad farmer who does not know that making silage is the right thing to do with a wonderful crop such as grass can be.
Tower silos were not excluded by this Administration from the Farm Improvement Scheme: they were excluded by a previous Administration. We are considering whether they ought to be brought into this Scheme, which would enable them to get on with more expensive things. But I am not making any promises here. All I am saying is that it is being considered, and a decision will be taken upon it before this Scheme actually comes to an end. At this time I cannot say more than that.

17
The noble Lord, Lord Forbes, made a point about two units coming together into a single unit and not being able to qualify for a subsidy, because one of the two units had already had a £250 subsidy when they were separate. As I have said, the object of the silo subsidy is to encourage farmers to improve their grassland management and to start making silage. Once it has done that, its job is done. The subsidy is not meant to provide continued support for the construction of all the silage buildings, wherever or whenever they may be erected. That is why the agricultural unit plays such a part in the administration of this subsidy, which came in under an Act of the noble Lord's own Government—indeed, I am not sure that he was not in the Government at the time when the Act was placed upon the Statute Book.
On Question, Motion agreed to.

SILO SUBSIDIES (SCOTLAND) SCHEME 1965
LORD CHAMPION: My Lords, I beg to move this Order on behalf of my noble friend Lord Hughes.
Moved, That the Silo Subsidies (Scotland) Scheme 1965, be approved—(Lord Champion.)
On Question, Motion agreed to.

LAW COMMISSIONS BILL
Returned from the Commons with the Amendments agreed to.
ROYAL FOUR TOWNS FISHING ORDER CONFIRMATION BILL
Brought from the Commons; read la, and (pursuant to the Private Legislation Procedure (Scotland) Act, 1936) deemed to have been read 2a and reported from the Committee.

TRADE DISPUTES BILL
3.28 p.m.
Order of the Day for the Second Reading read.
LORD LINDGREN: My Lords, I beg to move that this Bill be now read a second time. It is a short Bill with a simple purpose. If I may attempt to put it in a nutshell, its purpose is to make it no longer a ground for legal action, in the circumstances of a trade dispute, to threaten to break a contract of employment. The existing law on this matter was laid down in a recent decision of this House, sitting in its Judicial capacity. This was the decision in the case of Rookes v. Barnard, and it might be helpful if I were to recall the main facts of that case and of the decision.
Rookes was a draughtsman employed by the British Overseas Airways Corporation. He was an active member of his union, but he had a difference of opinion with it and resigned. The union had 100 per cent. membership among the draughtsmen at B.O.A.C. and wished to preserve this situation. It threatened, therefore, to strike unless Rookes was dismissed, and the Corporation yielded to the threat. Rookes then claimed damages against three men who held official positions in the union.Two of them were employees of B.O.A.C. and one was a full-time official of the union. Rookes was successful in his action before the judge of first instance, lost before the Court of Appeal and was finally successful under a decision of this House. The ground of the decision was that the defendants had secured Rookes' dismissal by unlawful intimidation, and their action was not protected by the Trade Disputes Act, 1906. They had been guilty of unlawful intimidation because they had threatened to break their contracts of employment, and to break a contract is an unlawful act.
The decision caused a great deal of concern among trade unions. The implications of the case were a subject of debate among lawyers, and no one could really say how far its repercussions might extend. It seemed pretty clear that the effects of the case were not limited to the precise circumstances of Rookes v Barnard.It was also pointed out that

19
nearly all strikes, official and unofficial, involved breaking contracts of employment and might, therefore, be said to involve unlawful intimidation. I do not want to explore the legal implications any further than that. What I want to emphasise more particularly is the doubts and confusion which the decision created in the minds of ordinary trade unionists and trade union officials. As they see it, the threat of the Rookes v Barnard decision now hangs over every strike and the events leading up to a strike.
It may be that, in fact, in many cases, the actions of those calling and those taking part in strikes are within the law; but the ordinary worker and the ordinary trade union official are not legal experts, and they cannot be expected to know with any assurance how they stand in a particular set of circumstances. All they know is that they may be sued for intimidation. This is bound to hinder trade unions in their normal day-to-day activities. You cannot negotiate freely if you are afraid that a slip of the tongue may possibly land you in court. Yet it is on free and uninhibited negotiations between employers and unions that our whole system of industrial relations depends. That is why the Government have introduced this Bill, and why I am commending it to your Lordships' House for Second Reading. The Bill is intended to restore the law to the state it was in, or was thought to be in, before Rookes v Barnard.Before the decision, the law struck, or was understood to strike, an even balance between the two parties to the collective bargaining process. It has been the aim of Parliament for the last 100 years to strike such a balance. This Bill is in the line of a crucially important series of statutes designed to safeguard the freedom of action of those taking part in strikes.
It is tempting, when a measure affecting the activities of trade unions is going through Parliament, to suggest that it should be adapted to carry out all sorts of desirable reforms (as the authors of the suggestions see them to be) in industrial relations. Several such suggestions were made during the passage of the Bill in another place. Let me say straight away that the Government are not unsympathetic towards the general intention of some of these suggestions, but we have come to the view that this Bill is not the place
20
in which to take up a position on issues which are not strictly relevant to the Bill's simple purpose. We have taken this view primarily because we do not want to pre-judge the findings of the Royal Commission on Trade Unions and Employers' Associations. We want them to have the chance to consider, in a balanced way and on the basis of much inquiry and quiet reflection, what the basic problems of industrial relations are at the present day, and the solutions to them which would be most appropriate.
As I have said, the Bill is in the line of all trade union legislation before it. It extends its protection to persons taking part in any kind of trade dispute as defined in the Trade Disputes Act, 1906. Trade union law makes no attempt to distinguish between unofficial and official strikes, between strikes in breach of procedure and those not in breach of procedure, or between strikes causing injury to a third party and strikes not causing such injury. The Bill follows the rest of the law in this field in making no such distinctions. I am not saying that there is not a case for at least considering whether such distinctions ought to be made in trade union law. What I am saying is that it would be inappropriate to introduce such fundamental distinctions into the one part of trade union law represented by this Bill, and at a time when we have just established a Royal Commission to look at all these problems for us. The question may be asked: why have the Bill at all before the Royal Commission report? The answer is that the situation created by Rookes v. Barnard cannot be left for the time it will take the Royal Commission to report. In fact, if we did leave it, the feeling in the trade union world would be so bad that the Royal Commission would very likely fail to get the co-operation from the trade unions which is absolutely necessary if it is to carry out its task properly.
I expect (I hope that I am wrong, but I fear that I am right) that we are going to hear a good deal this afternoon about the closed shop. Discussion of the Bill has come to be tangled up with the question of the closed shop because the case of Rookes v. Barnard happened to revolve around the closed shop question. But, as I have already pointed out, the implications of the Rookes v. Barnard decision go much wider than the closed

21
shop, and, as a consequence, the scope of the Trade Disputes Bill is also much wider. In fact, like the rest of trade union law, it extends to trade disputes of every kind. I think it is a pity, therefore, that so much of the argument about the Bill has centred on one particular issue of industrial relations, the closed shop—an issue which gives rise to only a fraction of the disputes that occur.
I do not intend this afternoon to enter the lists either for or against the closed shop. I will content myself with making just two observations. One is that the closed shop is clearly a matter of the kind which the Royal Commission will be considering. My other observation is that there is something to be said on both sides of the closed shop question. There are no clear rights and wrongs about it. I would commend to your Lordships Dr. W. E. J. McCarthy's balanced account of the subject in his hook.The Closed Shop in Britain. The experience of other countries like the United States teaches the same lesson. The issues are by no means so simple as they appear at first sight.
Let me mention briefly the main provisions of the Bill. The heart of it, of course, is Clause 1. This provides, first of all, that an action of tort cannot be brought against a person who threatens to break his contract of employment in the circumstances of a trade dispute. It also provides that an action cannot be brought against a person who threatens that a contract of employment to which he is not a party will be broken. This is to cover the position of a person like Silverthorne, one of the defendants in Rookes v. Barnard, who, as I mentioned earlier, was a full-time union official and therefore could not be said to have threatened to break his own contract of employment. Finally, the clause provides protection for a person who threatens to induce someone else to break his contract of employment. This is, of course, designed to protect the trade union official in the position in which he normally finds himself in a strike situation—that is, calling others out on strike.
As is to be expected, the Bill applies to all acts committed after it becomes law. The second part of Clause 1 explains the situation in regard to acts committed before the Bill becomes law. If proceedings in respect of such acts are
22
commenced before the Bill becomes law or within six months of its becoming law, they will be settled in accordance with the law as it is now. So plaintiffs have a period of grace of six months in which to bring actions, the rights to which accrued before the Bill becomes law. Clause 2 is purely formal.
My Lords, I hope that this Bill will receive your support. If it passes into law, it will be welcomed by trade unionists. It will also pave the way for the work of the Royal Commission. It is, therefore, as a most important contribution to good industrial relations that I commend it to the House. I beg to move.
Moved, That the Bill be now read 2a.—(Lord Lindgren).
3.42 p.m.
LORD CONESFORD: My Lords, the noble Lord, Lord Lindgren, has introduced the Bill in a commendably short and clear statement. This is, indeed, a short, important and highly controversial Bill. It passed its Third Reading in another place by a majority of 11, both the Opposition Parties voting against it. When it went before a Committee of another place there were seven crucial Divisions on Amendments. In four of those seven Divisions the Government majority was one; in two of them it was two; and only in one Division did the Government majority amount to as high a figure as three. In the Committee of another place it so happened that there was no representative of the Liberal Party. I would remind the House also that the Bill is not one which the Socialist Party thought fit to mention in their Election Manifesto. It is not a measure for which they either sought or obtained any mandate.
In my speech on November 11 last, the first time I spoke in this Parliament, I dealt with the Bill that was then foreshadowed in the Queen's Speech; although at that time, of course, we had no details of it. I tried to explain, as simply as I could, the great issues involved, and I pointed out the dangers of simply reversing the decision of Rookes v. Barnard, if that was indeed what was intended. My view was, and is, that the Statute Law affecting trade unions is certainly capable of improvement, but that the questions raised by trade union

23
legislation are extremely complicated: they are very difficult indeed. This legislation not only affects trade unions and their officials, and not only employers and employees, but has the widest repercussions on third parties, on the ordinary members of the public and on individual human rights.
By far the best thing, I suggested in my speech on that occasion (as I had suggested in the last Parliament), was an expert examination of the whole problem by a Royal Commission or a similar body; and it will be remembered that the noble and learned Viscount, Lord Radcliffe, gave very strong support to such a step in his address to the Law Society's national conference last October. Perhaps I should remind the House that Lord Radcliffe was not one of the Law Lords who heard Rookes v. Barnard,but he was one of those who heard the subsequent very important case of J. T. Stratford & Son Limited v. Lindley, a case much cited in the same connection, in which the learned Law Lords discussed, as, indeed, had the Court of Appeal, some of the issues involved in Rookes v. Barnard.
The Government, I am delighted to note, have now decided on a Royal Commission to consider,inter alia, the law on the subject of trade unions; and the noble and learned Lord, Lord Donovan, with characteristic public spirit, has agreed to preside over it. My regret—and it is a very strong regret—is that the Government should have decided on a crude reversal of the law without waiting for the Royal Commission's consideration of this most difficult subject and for the Commission's recommendations about it. What is the excuse for thus anticipating the consideration and recommendations of the Royal Commission? The excuse is, as the noble Lord, Lord Lindgren, explained in his speech, the allegation that at present trade union officials are in so much difficulty that a temporary measure is necessary to enable them and other trade unionists to play their proper part in industrial negotiations. Is that excuse valid? If I suggest that it is not, that does not mean that I am without sympathy for trade union leaders when they are puzzled by the decision in Rookes v. Barnard.
24
I was not without sympathy with the noble and learned Lord who sits on the Woolsack when he mentioned (when replying to the debate in which I took part and to which I have referred) the absence of agreement about what precisely had been decided by that case. I quite see that there are a number of difficult points on which confident assertions may at present be impossible. The case has already given rise to a considerable literature (read, I suppose, mainly by lawyers) in which academic lawyers of distinction have taken very different views. I might mention, for example, that Professor K. W. Wedderburn, Professor of Commercial Law at London University, has had articles in the Modern Law Review, and, indeed, has recently published a popular book which takes a very hostile view of the decision of the House of Lords in Rookes v. Barnard.
A very different view has been taken by a most distinguished lawyer, Professor C. J. Hamson, Professor of Comparative Law in the University of Cambridge, in important articles in the Cambridge Law Journal. I speak now from memory, but the noble and learned Lord, the Lord Chancellor, will know whether I am right or wrong when I say that the views of both those learned Professors were in fact brought to the notice of the House of Lords at the hearing of Rookes v. Barnard. If I may add one more to the distinguished lawyers who have discussed the case, there is Mr. L. H. Hoffmann, who has an important article in the January number of the Law Quarterly Review.
My Lords, I agree with the noble Lord, Lord Lindgren, and others that when this decision was first published there was considerable alarm among many trade union officials, who wondered how far the case might extend and how many of their perfectly normal activities might bring them within the danger of the law. That extreme alarm was quite short-lived for two reasons which I mentioned to the House in my previous speech. The first was that the Law Lords themselves, in the second case to which I referred—Stratford v. Lindley—pointed out that the decision in the Rookes v. Barnard case did not have most of those effects which, at first sight, a certain number of laymen feared that it might have. I do not limit myself to that,

25
because, not unnaturally, the Trades Union Congress itself took counsel's opinion. Though, of course, there were things in Rookes v. Barnard about which they were not happy, counsel's opinion was on the whole extremely reassuring and certainly pointed out that there need be no such fears about ordinary procedure as had been suggested in some quarters.
I do not wish the House to think that these are mere statements by a layman—although one who happens to be a lawyer who some eighteen years ago wrote a little book on trade union law—and, if I may, I should like to quote a passage from the article on Rookes v. Barnard by Mr. Hoffmann in the January issue of the Law Quarterly Review:
"Some writers and union spokesmen said after Rookes v. Barnard that its effect was to make any union official who threatened a strike liable for intimidation, and that a coach and four' had thereby been driven through the Trade Disputes Act. This goes too far. The case does not decide that an employer who makes concessions under threat of a strike can afterwards sue the union officials for intimidation. It has been suggested above that, as a matter of common law, a threat to break a contract with the plaintiff should not be treated as intimidation."
Then comes a sentence which I should like to bring to the special notice of the House:
"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."
I quite agree, of course, that it would be very convenient for a trade union leader not to have to take any thought on the matter at all, and to know that he would not be liable under the law for whatever he did. But if he does have to pause for a moment before recommending or promoting a strike in breach of contract for the specific purpose of compelling an employer to inflict loss upon a third party, is it really so very undesirable? Of course I understand that a trade union official may greatly prefer a guarantee of complete immunity in respect of whatever he does in the way of threatening a breach of contract, and the reversal of the law that decides that in certain circumstances he may he liable would be very convenient for him. It is far less pleasant for the third party. After all, there is the question of the man who suffers from the intimidation. Under the existing law he may have a
26
remedy. It is a rare case in which he has a remedy, but in some cases he has. Are we quite certain that we never want anyone in the position of Mr. Rookes to have a remedy again if he is the victim of intimidation at Common Law?
I asked a Parliamentary Question about the Universal Declaration of Human Rights and the promotion of this Bill in this House on February 23 of this year, and it was answered by the noble Lord, Lord Lindgren. I found it then extremely difficult to get from him a simple answer to the question whether the Government wished that in future any man treated as Mr. Rookes was treated should have no remedy. Noble Lords, if they are interested, can turn to the Hansard and read the questions and answers. They will find that it was very difficult indeed to get a clear statement by the noble Lord that the object of the present legislation was to reverse the decision in Rookes v. Barnard and to make quite certain that any future injured party should have no remedy. I am glad that the noble Lord has been a little more forthcoming on the present occasion, but I am also going to quote from the clear statement of the right honourable Gentleman the Minister of Labour during the Committee stage discussions in another place. I can give the whole passage if desired but I think it enough if I quote this portion of a sentence:
"…the purpose of this Bill is simply to reverse the House of Lords' decision in the Rookes v. Barnard case …"—[OFFICIAL REPORT, Commons, Standing Committee A, 23rd March, 1965; col. 63.]
In my speech of November 11 I pointed out that if reversal was indeed intended, there were two possible methods of bringing it about. At that time, no Bill had been printed. I said that it would be possible to amend the Common Law regarding the tort of intimidation, or, secondly, it would be possible to provide a new immunity to commit the tortious act concerned in contemplation or furtherance of a trade dispute. When this Bill was printed I looked with great interest to see what course the Government had chosen between these possible methods of reversing the law. In regard to the tort, they leave it quite unaffected, except in cases of acts done in contemplation or furtherance of a trade dispute.

27
Apart from that, the tort is wholly unaffected. On the whole, I am glad of that. That, at any rate, does not prevent the development of our law, apart from trade disputes, in a way that many writers believe to be highly hopeful and desirable.
I am a little astonished at this decision of the Government, for this reason. I disclosed to the House when I spoke before and I disclose it again, because I wish to be perfectly frank with the House, that the decision in Rookes v. Barnard took me by surprise. That was not because I was ignorant of or misunderstood the Trade Disputes Act, but because I was not sufficiently acquainted with the Common Law tort of intimidation. I would plead in defence of my ignorance that it was strongly contended by the noble and learned Lord now on the Woolsack, who argued the case for the defendants, both in the Court of Appeal and in the House of Lords, that there was no such tort; but all the Judges—the Judge in the Court of first instance and the whole Court of Appeal and all the Law Lords in the House of Lords—said that there was such a tort.
I may say that of the three cases on it that appear in the books one was heard in 1620, one in 1709, and the one most relied on in the present case, Tarleton v. M'Gawley, was decided by Lord Kenyon in 1793. So your Lordships will understand that this particular tort is not one which we constantly meet in the books. Nevertheless, what was said about these cases in Allen v. Flood in 1897, and what was said in the case which it is the purpose of this Bill to reverse, shows that it is an important tort in our law.
There is a remedy for intimidation which, if the intimidation is by threatening breach of contract in contemplation or furtherance of a trade dispute, this Bill proposes to abolish. This Bill does not abolish or even amend the definition of the Common Law tort, but, in effect, it provides a new defence, additional to any defence that has hitherto existed under the Trade Disputes Act, 1906. A good deal was said in another place, and a good deal has been said in the Press, about the Trade Disputes Act, 1906, as though this decision of the House of Lords was a decision against a trade union. Of course, it was not. The immunity of the
28
trade union under Section 4 of the 1906 Act remains absolutely unaffected. The trade union is completely and absolutely immune. But in addition to the complete immunity of the trade union under Section 4, under Sections 1 and 3 there are certain immunities given to individuals, if acting in contemplation or furtherance of a trade dispute. To these, this Bill proposes to add the threat of breach of contract and this, in the Government's view, will reverse Rookes v. Barnard and prevent anybody from recovering damages for intimidation in these circumstances.
The first thing I want to do is to put a question to the noble and learned Lord the Lord Chancellor, who is answering the debate. I am sorry that he is not on the Woolsack at the moment, but I know that a message will be taken to him. Is he quite confident that the Bill as drafted achieves the object described by the Minister of Labour, in the passage I have quoted, as reversing Rookes v. Barnard? The reason I ask this question is that the noble Lord, Lord Lindgren, in reading out a passage from Clause 1, left out one extremely important word, "only". The clause says that the act
"… shall not he actionable in tort on the ground only that it consists in his threatening—
(a) that a contract of employment…will be broken…".
I think that the noble Lord is probably right, that this is sufficient to ensure that Rookes v. Barnard is reversed; but it does not seem to be quite so obvious as he assumed—for this reason: in order to constitute the tort of intimidation (I quoted the passage on the last occasion and will just repeat the necessary words), the threat has to be
"with the intention and effect of intimidating any other person into acting in a certain manner to the harm of the plaintiff."
It may be thought that if we mention only a breach of contract and say nothing about the motive, the presence of which would bring it within the mischief of the tort of intimidation, we are not preventing it from being actionable by a form of words which says that it shall not be actionable "on the ground only." I think I have probably made the matter sufficiently clear for a message to be taken to the noble and learned Lord the Lord Chancellor. The question is whether he is quite confident that the

29
words are sufficient to reverse Rookes v. Barnard, notwithstanding the omission of all mention of the motive for the breach of contract. Needless to say, taking the view I do, I do not in the least wish to improve the Bill by strengthening it in this particular regard, but I have always regarded it as the duty of any lawyer speaking in this House to draw the attention of the House to the possible effect of measures which they are considering. It would be a very odd result if, after this measure had been put in its present form into the Statute Book, a future case showed it to be ineffective in providing a complete answer to an action for intimidation.
Now I come to the reason why I am so anxious that Parliament shall not pass this Bill as it now stands. Of course, we will give it a Second Reading, as we always do to any Bill that comes up from another place as this Bill has come. I agree with part of what the noble Lord, Lord Lindgren, said about the closed shop. It is perfectly true that this Bill does not deal specifically with the closed shop. I agree with the noble Lord further, that the closed shop is not a very easy question, nor are all the rights on one side or the other. On the whole, I regard it as a suitable matter to be considered by the Royal Commission, but, surely, subject to this proviso: that we must not do meanwhile something that enables a really intolerable tyranny to be exercised.
I am not going to condemn the whole idea of a closed shop in every case. Let me remind your Lordships that if there is a closed shop—let us assume in a monopoly industry—nobody can earn his livelihood in the industry unless he is a member of a particular trade union. Let me remind your Lordships further that he has no right to join that trade union the trade union can simply say, "No". I am not suggesting that a trade union would normally say, "No". But I say, further, that a man may fall out with his trade union, and they may say that he cannot go back to them. Again there would be no remedy. What would happen in such a case? In such a case, a man could be completely deprived of the possibility of making his living in his chosen trade. Surely this is something that we should look at most carefully. If there is an existing right that protects a
30
man at the moment, we should carefully consider the matter before we abolish that right.
I have previously reminded your Lordships, and I hope I may do so again, of Article 20 of the Universal Declaration of Human Rights, which was approved by the General Assembly of the United Nations in 1948. That says:
"1. Everyone has the right to freedom of peaceful assembly and association.
2. No one may be compelled to belong to an association."
That is the Universal Declaration of Human Rights. The Government say that they approve of this Universal Declaration. I am not going to make any dogmatic statement on what duty, if any, the signature to that Universal Declaration puts upon the Governments who approved it. I am not saying that it puts upon them a duty to legislate. But if they find that in their law, as it stands, there is a legal protection of a man against being intimidated to join an association, or against being punished because he refuses to do so, can anybody be quite happy in reversing the law and taking that protection away?
Take, for example, the man Rookes. I know nothing more than what has been said in the headnote, and so on, about the merits of Mr. Rookes. I make no assumption about him at all, except what we know—namely, that he had fallen out with his union and was unwilling to rejoin it. When the union officials thereupon intimidated his employers in order to induce them to dismiss him, and they yielded, it was found that he had a remedy. What will be thought of the British Parliament if it says at one and the same time that it approves the Universal Declaration of Human Rights, that no one shall be compelled to belong to an association, but it is also prepared to carry into law a Bill that deprives him of his remedy against people who threaten, in breach of contract, to destroy his livelihood because of his refusal to join. That is what this Bill, if it is enacted, will do. I therefore think that when we reach the Committee stage we should try to see whether we cannot amend it so that the total effect of the Bill does not have a result quite so outrageous.
The noble Lord, Lord Lindgren, said one thing which I, frankly, very much

31
regretted, though I accept it from him that he is right. He said, in effect, that the T.U.C., or the trade union leaders, would not have collaborated in giving evidence to the Royal Commission, and the rest of it, unless a Bill on these lines had first been promised. If that is true, I, as one who has known and been friendly with a number of eminent trade union leaders, can only express my profound regret. I am particularly sorry that the noble Lord, Lord Williamson, is unable to be here to-day; he told me beforehand how sorry he was, too. When I think of the quality of men like the noble Lord, Lord Williamson, and others, I very much regret the suggestion that, had this Bill not been produced or promised, they would not have given the benefit of their experience and advice to the Royal Commission. I share the desire of these men for further clarification of the law, and I should have trusted that, without any promise whatsoever, they would give the benefit of their experience and their wisdom to the Royal Commission. What I say is not right is that, before the Royal Commission has reported, or even considered the matter, we should have this one-sided revision of the law.
I ventured to quote on the last occasion the well-known words from Measure for Measure:
"O, it is excellent
To have a giant's strength; but it is tyrannous
To use it like a giant."
The trade union world, if they are really demanding this measure without any consideration of how it conflicts with the Universal Declaration of Human Rights, and if they are not prepared, without this measure, to give the benefit of their experience and advice to the Royal Commission, are, I think, tarnishing their image greatly, and, in my view, quite unnecessarily.
I say, further, that Her Majesty's Government must be very far from having a just sense of values, or a knowledge of popular desires, if, surveying the entire world of industrial relationship, they come to this conclusion: that the one urgent matter of reform of trade union law which brooks no delay whatever is a reform to remove all redress from certain threats to break contracts. That really is not the view of the public. It is strange that
32
this Bill should come to us for Second Reading immediately after the Whitsun holidays, during which a few men, striking in breach of an agreement which their trade union had negotiated, inflicted immense losses on their employers and immense injuries on innumerable members of the public, without there being, apparently, any redress for anybody, and without the union even saying that they were sorry. It really is preposterous to assert that the most urgent measure of trade anion reform at the present moment is a reform to do away with all liability for threatening breach of contract. On the contrary, few things are more desirable in this country than that people should have a little more respect for the obligations into which they enter.
If it were true, as I suggest that it is not, that without this Bill it would be impossible for trade union leaders to carry on their ordinary work, then we should have to do something—though even then I think we could have provided more protection than is here given to third parties. But when, from what was said in a subsequently decided case, from counsel's opinion given to the T.U.C. itself and, lastly, from the comments of some of the academic writers, it is clear that the case of Rookes v. Barnard does little beyond making it dangerous to threaten a strike in breach of contract for the specific purpose of causing an injury to a third party, then, my Lords, I suggest that this Bill is unwise and ill-considered.

COMMONWEALTH IMMIGRANTS
4.22 p.m.
THE LORD PRIVY SEAL (THE EARL OF LONGFORD): My Lords, with permission, I wish to repeat a Statement which my right honourable friend the Prime Minister has just made in another place. His exact words were as follows:—
"I have just received from Lord Mountbatten a Report on his mission to a number of Commonwealth countries to discuss the control of immigration into the United Kingdom. This mission has been immensely valuable in securing real understanding between the countries visited and ourselves about the nature of the problems we are facing, and we are greatly indebted to Lord Mountbatten. His discussions

33
with Commonwealth Governments were on a strictly confidential basis and his Report will not be published. We are studying it urgently, and I am looking forward to having some discussion with the Commonwealth Prime Ministers principally concerned while they are in London this week and next. After that the Government intends to make a full and detailed statement to the House of what is proposed in the light of these discussions."
My Lords, that concludes the Statement of the Prime Minister.
VISCOUNT DILHORNE: My Lords, I am grateful to the noble Earl for conveying to your Lordships the Statement made by the Prime Minister in another place. There are two questions I should like to put to the noble Earl upon it. The Statement says that Lord Mountbatten of Burma's discussions with Commonwealth Governments were on a strictly confidential basis and that his Report will not be published. I should be the last person to ask that there should be any publication of any confidential discussions with Commonwealth Governments, but it is surely quite another thing not to publish the recommendations made by Lord Mountbatten of Burma to Her Majesty's Government.
I would ask the noble Earl (though I do not suppose he will be in a position to answer me straight away) to see whether he can persuade the right honourable gentleman the Prime Minister slightly to alter from this position and to publish, not anything which has happened confidentially with the Commonwealth Governments, but what in fact are the recommendations for future changes of policy made by Lord Mountbatten of Burma: because only if we have information of those recommendations shall we be able to judge to what extent the statement which is promised complies with those recommendations. I urge upon the noble Earl that, for the purpose of considering this question, those recommendations should be made public. This is a most important subject, and one that is regarded by people throughout the whole of this country, whatever views they may take, as of the greatest importance. We welcomed the mission of Lord Mountbatten of Burma, and I would stress to the noble Earl that if we are to have this "full
34
and detailed statement of what is proposed" by the Government we ought to be able to consider it in the light of the recommendations made by Lord Mountbatten of Burma. That is the first matter I want to press, and press very seriously, upon the noble Earl.
The second matter relates to the promised
"full and detailed statement of what is proposed in the light of these discussions".
Could the noble Earl give any indication of the possible time when that statement would be made? What I have in mind—I will be quite frank with the noble Earl—is this. We might get such a statement, say, in the middle of July, requiring action which might require some legislation, and there would probably be no possibility of further legislation on this subject until the autumn. The consequence, if, for instance, the proposal were to restrict immigration to a greater extent or to alter the existing Act would be that there would be a considerable gap. I do not press the noble Earl on that, but could he give any indication at all about when he thinks the statement is likely to come?
THE EARL OF LONGFORD: My Lords, I am grateful for the tone of the noble Viscount's remarks. He is very much experienced in Government, and he will not be surprised that I am not able to answer his second question. This Report has only just been received. There are these discussions with the Commonwealth Prime Ministers concerned and, no doubt, other discussions. I am afraid that I cannot say any more, and if the noble and learned Viscount were in my place, he would hardly be likely to say any more than has been said here. I will, of course, convey anything he suggests to me to the Prime Minister and the Government, and I will convey what he has said about the publication of this document. But without myself having had an opportunity to discuss the matter with colleagues, I am bound to say at this stage that I should be very surprised if this Report could be published. The matter has been carefully considered and, like many other documents of this kind, it is not thought advisable to publish it. It was drawn up in a way that was intended to be, and remain, confidential. Perhaps it would have been drawn up in a different way

35
if it was to be published. Lord Mountbatten of Burma is a distinguished serving officer of the Armed Forces at the present time, and I should have thought that it would be unusual if it were to be published. At any rate, I will convey what the noble Viscount has said.
VISCOUNT DILHORNE: My Lords, the noble Earl will appreciate that I am not asking that the document as a whole should be published. I well recognise that it must contain a good deal of confidential matter. I was asking the noble Earl to secure, if he could, that the recommendations for future action made by Lord Mountbatten of Burma should be published. My memory goes back to occasions when one has been faced with this problem of a report made by an outside body containing some confidential matter, and it has (I think I can give instances of it) on occasions been published, with the omission of that confidential matter; and that situation has been accepted by both Houses. I am not going so far as asking for that here. It might not be possible to excise from this document as a whole the confidential matter and leave anything of substance after that. But surely the recommendations made by Lord Mountbatten of Burma cannot be of a confidential nature affecting Commonwealth Governments. I would therefore ask the noble Earl to give it further consideration.
THE EARL OF LONGFORD: My Lords, I will gladly convey what the noble Viscount has said, but I can imagine great difficulty in separating recommendations from the facts and arguments supporting them.
SEVERAL NOBLE LORDS: No.
THE EARL OF LONGFORD: I can, anyway.

TRADE DISPUTES BILL
4.30 p.m.
Debate on Second Reading resumed.
LORD WADE: My Lords, before offering a few comments on the Trade Disputes Bill I should like to welcome the noble Lord, Lord Soper, who is to deliver his maiden speech this afternoon. I have known him for many years and I am sure he will make many valuable, and it may be at times controversial, contributions to the debates in your Lordships' House. I certainly look forward to hearing his speech this afternoon.
The noble Lord, Lord Conesford, has spoken with that great learning and knowledge of the law which we expect from him. I myself propose only to deal with one or two comparatively simple points. I think the Trade Disputes Bill should be considered under two headings. The first is whether legislation is necessary in order to clarify the law following the decision in the case of Rookes v. Barnard. The second is whether this Bill is in a form which Parliament should approve. I think there is a case for some clarification of the law. There are, of course, differences of opinion as to the effect of the decision in Rookes v. Barnard. My noble friend Lord McNair, in a memorandum which I had the opportunity of seeing, written a little time ago, said that the decision in Rookes v. Barnard can be summarised in two propositions: one, the acts of Barnard and his co-defendants constituted the Common Law tort of intimidation, which is by no means confined to trade disputes, and, two, neither the Statutes relating to trade disputes nor any other Statutes afforded any justification for those acts so as to exclude the Common Law liability for the tort of intimidation.
In considering the importance of Rookes v. Barnard one has to look at the dicta in the case of Stratford v. Lindley which has been referred to by the noble Lord, Lord Conesford. It may be that the consequences of the decision in Rookes v. Barnard are not as far-reaching as at first they were thought to be. Lord Pearce, on page 557 in the case of Stratford v. Lindley,said
"it was suggested in argument that Rookes v. Barnard went a long way further than it

37
was, in my opinion, intended to go. It was, for instance, suggested by counsel for the respondents that it withdrew from the protection of Section 3 of the Trade Disputes Act, 1906, the threats of a trade union official to the employer to call a strike in breach of the contract of employment. It certainly does not do that."
That was the opinion of Lord Pearce.
It may be that a case for damages arises only at the instance of a third party, but the crux of the problem, as I see it, is that trade union officials, in the course of their duties, may be exposed to personal risk of actions for intimidation in the process of bargaining—for example, if they refer to the possibility of their members coming out on strike. If this were so, there might be some reluctance to enter into negotiations, and in this way the procedure of collective bargaining might be impeded. I think one of the reasons for the introduction of the Act of 1906 by a Liberal Government was to ensure that the normal work of trade union officials was not impeded in that way. I think that is the best case that can be made for some interim legislation to clarify the law to protect individual trade union officials.
It has been suggested that the object of the Bill is to restore the law to what it was presumed to be before the decision in Rookes v. Barnard We had a somewhat similar contention in the debate on the War Damage Bill. I never thought that was a profitable line of argument. The law has been decided by the highest court in the land and the question is whether the law should be changed, and in deciding whether it should be changed in order to protect individual officials of trade unions it is surely an important duty for Parliament to consider the need for protecting other individuals, individual third parties who may be adversely affected. Therefore I think it is right to consider whether this Bill takes that matter sufficiently into account. For example, I think we ought to be reassured that the Bill will not be used as an instrument to prevent people from having legitimate recourse to the courts for relief when they are either forced to join a union, or forced to remain a member of a union, or forced to leave a union. That was the purpose of an Amendment introduced by the Liberals in another place. The precise wording of the Amendment was as follows:
38
"Provided that an act as aforesaid is not done with the sole intention of forcing another person to become, to remain or to cease to be a member of a trade union."
I am sorry that an Amendment on those lines, advocated by Mr. Emlyn Hooson in another place, was not accepted.
On the Second Reading of this Bill in another place the Minister of Labour said:
"Rookes v. Barnard was, of course, a closed shop case. There are arguments on both sides of the closed shop issue. It is true, and I say it openly, and I have said it in public before, that the closed shop has sometimes been used to cause unnecessary hardship to individuals. There are cases where a man has been driven out of his job because he has quarrelled with his local union branch. There are cases where a man has suffered because he has genuine conscientious objections to joining a union. I condemn it. The trade union movement has a great and inspiring history, and a vital contribution to make to our modern society, and it ought to be above victimisation of this kind."—[OFICIAL REPORT, Commons, Vol. 706 (No. 58), col. 1019, February 16, 1965]
I think that was very clearly put. I think it most important that before this Bill reaches the Statute Book we should ask whether it can be amended so as to provide reasonable safeguards for third parties who may be victimised in this way. On these Benches we are considering whether we should not table a similar Amendment to that which was tabled in another place. Of course we cannot cover all the grounds, especially as a Royal Commission has been set up. In the years 1963 and 1964 I served on a committee set up by Justice to consider the need for amending the law relating to elections, in the case of both trade associations and trade unions. This, of course, is only indirectly related to the subject before your Lordships' House to-day. This committee was appointed following the E.T.U. case, and its report has not been published, but I understand that the substance of the report will be submitted as evidence to the Royal Commission. While serving on that committee I became convinced of the need for some changes in the law, quite apart from voluntary reforms that may be carried out.
This is, however, only one aspect of the whole field of trade union law. While the Royal Commission is sitting we cannot do more than introduce an interim measure. The Trade Disputes Bill is such a measure, but before it reaches the Statute Book I believe it is right to ask

39
that there should be some adequate safeguard for individual third parties who might be deprived of remedies open to them but for the passing of this Bill. In the other place the Liberal Parliamentary Party supported the Second Reading—they thought some legislation was called for—but they made it clear that if there was no amendment they would have to vote against the Bill on Third Reading. The amendment for which they asked was not accepted and they did, in fact, vote against the Bill on Third Reading. I think that was an entirely proper course to take. In conclusion, I hope the Minister will understand that those who have reservations about this Bill are not unmindful of the important role which trade unions have to play, but we must also be mindful that the liberty of the subject must be our overriding concern.
4.40 p.m.
LORD SOPER: My Lords, my first word must be a word of gratitude to the noble Lord, Lord Wade, for his very kindly reference to myself, which I greatly appreciated. My second word must be to ask, as I do, for the indulgence of this House as I speak for the first time in your Lordships' presence. It would be frivolous for me to pretend that I can claim as a plea for that indulgence that I am unaccustomed to public speaking. I have been addicted to much speaking in many places for a very long time, but I have learned in that process how wise is the New Testament comment that there is no necessary connection between much speaking and actually being heard. And in fact my preoccupation in other places with different liturgical and ritualistic practices is a prime reason for asking for your Lordships' indulgence as I take upon myself this rather strange and new form of utterance. My usual occupation as a preacher is in a pulpit, and I know full well how inapplicable would be the characteristics of sermons in this place. I spend, and have done for the last 38 years, a great deal of time in another form of service in the open air where the ritual and liturgy are very generously shared by the congregation. And it is in this hope that I may in this place be able so to frame what I have to say within the proper liturgical requirements of your Lordships' House that I will do my best.
40
I thought it not inappropriate, in speaking for the first time, and as I think probably as the first Methodist minister so to occupy your Lordships' time in this place, to consult my ecclesiastical father in God, John Wesley, about this House; and so I did. And trawling through John Wesley's immortal Journal, I find that there is only one reference. I approached this problem with a certain diffidence, because I am bound to communicate to your Lordships that John Wesley was a high Tory, but it may be of some comfort to my noble friends that he himself said he was a very bad one. He says on January 25, in his Diary of 1785:
"I spent two or three hours in the House of Lords. What is a Lord but a sinner born to die?"
I hope that noble Lords will not regard that as a provocative intrusion into a maiden speech, because I must say that, theologically, it is impeccable. But it can, I think, form a perhaps not unsuitable introduction to what I should like to say in general terms about this particular Bill, and from the standpoint of a requirement laid down by the Minister of State in another place on the first speech he made on the Second Reading of this Bill. He claimed from those who listened to him that it was necessary to see this Bill within the framework of what he called the philosophy of industrial relations. I believe that I can, perhaps with speculative results, but I hope with uncontroversial ones, make some observations upon the underlying, and, as I think, overshadowing philosophical aspects of this case.
In the first instance, it is, as I think, imperative to remind myself that we are dealing here with persons rather than with law conditions, or even with abstract concepts of justice. If there is one thing I have learned in a long apprenticeship in Hyde Park on a soap box it is that you may very easily win your case and lose your man. Every man is much more than the sum total of his logical processes, and life is richer than thought; and ultimately it may be very easy to lose touch with the realities of a case in the preoccupation with its legal and administrative conditions and permutations. This is no excuse, of course, for an ignorance of, and a failure to apply oneself to, the proper analysis of the law and the Constitution as they may appear

41
to stand. But it is, I think, a reminder which comes within the general framework of the philosophy of industrial relations that we are here endeavouring to deal with human beings, and such human beings as have for long, I think, found themselves within the general integuments of society in which tensions have prevailed and in which rights and wrongs have balanced or imbalanced from time to time.
That brings me to the second proposition of which I have some pride in speaking. This is a trade union concern, and we Methodists have, I think, a reputable and a splendid tradition in the story of the trade union movement. I do not know whether many of your Lordships are acquainted with the almost exotic story of the Tolpuddle Martyrs, who came from such strange places as Tolpuddle, Ashpuddle, Bianspuddle, Piddletrenthide, Tinkleton and Cerne Abbas. These extraordinary men, led by none other than the Lovelace brothers, who were local preachers and who continuously proclaimed their ultimate concern with that Kingdom not founded by man, set out upon the task—not alone, for I think it is important to remember that we must not arrogate to ourselves, as Methodists, all the responsibility for the beginnings of trade unionism in this country. If it be true, as was said not long ago, that the Labour movement in these islands owes more to Methodism than to Marx—and I think that that statement is unexceptionable—it is also true that there were ferments of interest and zeal and conviction among these men of whom the Tolpuddle Martyrs were such outstanding and splendid illustrations.
I should like to quote to your Lordships, something said on the occasion when eight of them were condemned to transportation for seven years—not, according to an execrable villain called Baron Williams, who was the judge at the time, and who said in his summing up:
"for what these men have done, for I can find nothing that they have done, but in order that it may be set forth as an example to others not to do that."
That does not commend itself, I am sure, to your Lordships' House as a very suitable form of expression of justice. But when Lovelace, the leader, was invited to speak, or was permitted to speak, he
42
had but begun when the judge required him to set down on paper what he desired to say, and he set it down on paper and this is what he said. Obviously he had the very shortest opportunity to commit to paper what would have been an eloquent and impassioned speech. He said:
"I do this, Sir, in order to preserve my loved ones, my wife and my children, from utter degradation."
A great deal of water has flowed under many bridges since those words were spoken, and it would be idle and entirely improper to suggest that those who are gathered together in the cohorts and regiments of the trade union movement are still under such a total threat. This would be stupid to say, and I do not propose to delay you by even suggesting it is still relevant. But it is relevant to say that there still exists within so many of those who are disadvantaged economically and educationally, and let us say spiritually, a realisation that if we are to make as human beings a right judgment on any issue we must be more concerned with the human characteristics that lie behind a case than with a precise evaluation of the case as it is represented. And it does appear in this very short Bill that what is being set forth is an attempt to recover a sense of what in the eyes of many people existed as the law as from 1906.
I am not competent to enter into the intricacies of the case, and I should not presume in a maiden speech so to do. What I am concerned to say is that a general philosophy of industrial relations must recognise that we still live in a society where the disadvantages that belong to one group are still so marked as to be not an excuse, but an element which must ever be taken into consideration when we find them perverse, when we find them illogical, and indeed when we find them, as in many cases that could be cited—and I have no reason or desire to refute such cases if they were—to have been in fact on the wrong side morally.
I would delay you with the leave of the House, for one further moment. I am a Methodist preacher, by conviction, by vocation and by practice. Unlike my ecclesiastical brethren of the Anglican Communion, whatever spirituality I may possess in the vestries of Methodism I have no spiritualism here. But I do

43
not intend to disguise, or to delay to say, my own piece in relation to the ultimate moral principles which I believe must inform a considered philosophy of industrial relations. Much has been said in the process of this Bill about individual liberty; and individual liberty, as Doctor Inge once remarked, is not necessarily a Christian virtue. It has Christian connections. The interesting thing is that a survey, for instance, of the Sermon on the Mount yields a very different analysis as to what essentially is the Christian principle. It is that there is something far more important than the undivided and unrestricted liberty of the individual, and that is the society of the good.
Can we claim that this Bill seeks to redress an evil balance, as I think it is, relating to that individuality when it is uncensored by, and is uninformed by, the sense of the public good; can this Bill once again establish in the process that now intervenes before the coming of a Royal Commission—does it indeed seek—a way of emphasising that we are members one of another, and our corporate responsibility in politics is, if you like, the political expression of what Augustine meant when he talked about "the City of God that remaineth"? I believe it is the community that ultimately must remain. These are obviously words which speak no particular and precise relevance about this Bill. But this is a maiden speech, and I have offered but one or two observations upon the philosophy of industrial relations; and I hope that, with the further indulgence of this House, I may be able to contribute something to its further affairs.
4.54 p.m.
VISCOUNT MASSEREENE AND FERRARD: My Lords, it is my pleasant duty to congratulate the noble Lord, Lord Soper, on his most amusing and sincere maiden speech. It is extremely rare that we in this House ever see a maiden speaker who speaks completely without notes of any form. I congratulate the noble Lord on that. But, as he says, he has had vast experience of public speaking. He is also a well-known author on all matters to do with Christian ethics.
If I may now turn to the Bill, for what I promise to be but a short time,
44
may I say that, like my noble friend Lord Conesford, I consider that this Bill is unnecessary. I, too, consider that it is founded on a bad principle. It is unnecessary because Her Majesty's Government are in the process of setting up a Royal Commission to inquire into the trade unions and also into the employers' associations. Some of us on these Benches have been asking for such a Commission for some time. Nevertheless, I congratulate the Government on taking this step. But as we are going to have this Commission, I should have thought the proper thing would be to wait for its findings. The noble Lord, Lord Lindgren, quite truly said that Royal Commissions usually take a long time to report. But if this Royal Commission is going to take a long time, surely the right procedure would be to have an ad hoc Committee to go into this whole question. I personally should have liked to see an ad hoc Committee composed of trade unionists, trade union leaders, industrialists, management—every sphere of industry; and I feel that in having this Bill put before us we are being asked to legislate solely in the interests of one section of the community. I feel that this is wrong.
The noble Lord, Lord Lindgren, also said that the matter is one of extreme urgency. The Rookes v. Barnard case was concluded over a year ago. In that period we have had several strikes, but we have not had any actions for intimidation. My noble friend Lord Conesford quoted the opinion of several learned Judges that, so far as they can see, the Rookes v. Barnard decision does not affect the right of trade union officials in a trade dispute to call men out on strike. Therefore I cannot see the urgency in this matter.
I also consider that the Bill is founded on a bad principle. In some respects it is akin to the War Damage Bill which we have just passed through this House. In the War Damage Bill Her Majesty's Government hold the law to be different from what your Lordships' House, sitting in its judicial capacity, had found it to be. The Government are now changing the law retrospectively. Here, too, the trade unions, having lost the Rookes v. Barnard decision, are saying" For the last sixty years, since 1906, we have thought that trade union law meant

45
something else". They are bludgeoning Her Majesty's Government to bring this Bill in so as to alter the law to what the trade unions desire it to be. Surely we live in strange times if a section of the community, in this case the T.U.C., having lost their case can decide that the law must be adjusted to their requirements and by so doing can make quite sure that they can never lose a similar case again. I can only call that arrogance; it is a most extraordinary arrogance. It makes the trade unions the most privileged body in the State—the sacred cow. The 1906 Act had not been challenged at all until Mr. Rookes did so. It had always been regarded as being rather like the Ten Commandments. I certainly take off my hat to Mr. Rookes, for he was a most courageous man, and I feel that the public have been behind Mr. Rookes in his actions.
The noble Lord, Lord Lindgren, sought to make out the case—and he certainly did not do so to my satisfaction—that this Bill is not really about the closed shop and is not going to reverse the Rookes v. Barnard decision. But in fact it is going to do just that, and that is what the whole of the Bill is about. It means that in future no private individual is going to be able to stand up against victimisation of the closed shop. In this year of 1965, a year when we celebrate the 750th Anniversary of Magna Carta, I deplore the fact that Her Majesty's Government should bring in a Bill to deprive the individual of protection from victimisation by the closed shop. As the noble Lord, Lord Cones-ford, said, it goes completely contrary to the Declaration of Human Rights. One must remember that the trade unions are now one of the most powerful parts of the Establishment. Surely they ought now to have grown up and should not need to force people to join their unions. It would be far more dignified of them, and would certainly appear so in the public eye, if they were to allow individuals completely free choice to join a union or not.
LORD SHEPHERD: My Lords, would the noble Viscount permit me to ask him one question? Supposing a person were to contract out, does the noble Viscount suggest that he should enjoy all the rights, the new rates of income, the terms and conditions of service which the unions
46
have obtained for him? Is that man to be entitled to those rights even though he may be outside the union?
VISCOUNT MASSEREENE AND FERRARD: I do not agree with the noble Lord. I feel that a man should have the right to join any industry if he wishes to do so, and that he should not be forced to join a union against his will. I feel strongly that he should have that right. I have a very high opinion of Mr. Gunter, although I do not suppose he worries very much about that, but I am rather surprised that he has brought in this Bill, for I regard it as a retrograde step.
In conclusion, I sincerely hope that when the Royal Commission get down to business they will really try to define the right to strike and will seek to qualify such a right. In our Welfare State—and I agree that it was a different matter in the 19th century—no man need be short of food or of any of the necessities of life, and it is surely wrong that a man can strike over some trivial matter. I have personally seen these things happen. Surely when strikes occur because the tea does not arrive on time, or because the foreman swears at a man or something of the sort, we cannot have that. The right to strike must be clearly defined.
We have a great deal to learn from other countries. To take Germany as an example, they outstrip us in production and, according to the Sunday Times, they last year lost in strikes only six minutes per hundred men. That is a wonderful record. The unions in Germany are extremely powerful; they are far more concentrated and far larger than ours. They have agreements with the employers to provide that any unofficial striker can be sacked by the employer without notice. One sees the result is that they enjoy very happy relations. In the United States the trade unions are always harrying the management to make ever bigger profits. The trade unions in the United States realise that the greater the profits, the more their members benefit. It is a great pity that we cannot get that point over in this country.
As I think was also pointed out in the Sunday Times, in Holland a worker in a public utility cannot strike. That is illegal. That is perhaps going rather far, but I hope that the Royal Commission will advise that one cannot strike in

47
public utilities, such as the railways and airlines, without giving prolonged notice, because it is atrocious and disgraceful how this can inconvenience the public. It is most unfair on the public, because the men in these public utilities have secure tenure and very good conditions. I hope that something will be done about that.
I would only repeat that I regard this Bill as unnecessary, and I do not think the Government have proved that it is at all an urgent measure. After all, the T.U.C. issued in September a pamphlet, which I read, and in it they dismissed the Rookes v. Barnard decision as of no great moment. So how Her Majesty's Government can now say it is a matter of great urgency, I cannot understand. The other thing which the Royal Commission must do is to define a breach of contract between management and labour. Contracts between labour and management must be made sacred; otherwise the position is hopeless.
5.13 p.m.
LORD LLOYD OF HAMPSTEAD: My Lords, rising as I do to address your Lordships for the first time, I need hardly say how much I am overcome by a sense of diffidence especially following after my noble friend Lord Soper, that most eloquent of speakers. However, I am fortified by the knowledge that your Lordships are accustomed to display great indulgence to newcomers on such occasions. I am aware that it is a golden rule of a maiden speaker to be short and non-controversial, and I shall do my best to adhere to this excellent precept.
The reason and justification for this Bill can really be stated in a sentence. It is because this House, in its judicial capacity, has, in the case of Rookes v. Barnard, driven a coach-and-four through what was thought to be the protection afforded to trade unionists by the Trade Disputes Act, 1906. This phrase about a coach-and-four is one which is dear to lawyers, but its 18th century flavour may be thought to have a special appropriateness in the special instance, in view of the reliance placed in Rookes v. Barnard on the old case of 1793 to which reference has been made, involving a dispute between rival slave traders. After 60 years, history has really repeated itself in a most curious way.
48
Soon after the unions were legalised, their statutory protection was circumvented by the judicial creation of the tort of civil conspiracy. To meet this situation the 1906 Act was passed. Now the judges have once again outflanked the statutory shield by the development of the tort of intimidation. The precise extent to which this has occurred remains a matter of considerable doubt and uncertainty, and, as one would expect, legal opinion is very divided. In the meantime, the object of this Bill, as I see it, is simply to restore to union officials and members the protection that was believed to be theirs before the decision in Rookes v. Barnard.
The central feature of your Lordships' decision in that case was to treat a breach of contract as if it were equivalent to unlawful violence. Intimidation by threats of violence had previously been recognised as actionable, though the last clear example in the English Law Reports was the case to which the noble Lord, Lord Conesford, referred, in 1793, when a slave trader off the Cameroons had fired cannon at native traders to scare them off from trading with his rival. This may seem an unlikely basis on which to penetrate the defences of the 1906 Act. As one recent commentator has put it, no one had expected the Judges to equate a threat to walk out with a threat to "punch you on the nose". But this is what happened. The Judges held that a threat to break a contract, made with the intention of injuring another person, involves an actionable intimidation which loses the protection of the 1906 Act even when done in furtherance of a trade dispute. Of course, strikes normally involve breaches of contract, so the implication of this decision in industrial disputes was bound to be serious.
Where, then, does this decision leave the members of a union who threaten to withdraw their labour in breach of their contracts of employment, or the union official who threatens to call out the men? The answer is that no one really knows, though opposing opinions are confidently bandied about. Some eminent lawyers assert, for instance, that the new liability can arise only in respect of a third party (and we heard that view put forward by a very eminent lawyer this afternoon); and on this view, of course, an employer could not sue for

49
intimidation in a straightforward wages claim. But not everyone shares this view—and certainly the logic of the distinction is by no means self-evident. But even on this narrow interpretation, the scope of the decision is much wider than the special facts in Rookes v. Barnard. To give only one example, heavy liability might well be incurred towards customers or suppliers of an employer whom a union aims to boycott as a result of an industrial dispute.
It is urged that the case of Rookes v. Barnard was really concerned with a closed shop, and that it is only fair that a non-unionist should not be compelled to join a union under threat of being deprived of his job. The particular type of dispute which that case involved admittedly concerned a closed shop. There are, of course, powerful arguments on both sides of the closed shop controversy. It is not a simple question. There is surely much to be said for the view that a man should not be forced against his will to join any association, whether a trade union or anything else. On the other hand, many union members urge, with great force, that non-unionists take all the benefit and should not be entitled to take a free ride on the backs of their fellow workers. Those are the two views.
My Lords, the closed shop has never been treated in our modern trade union law as unlawful. Members of my own profession, before getting too indignant about this, should recall what Mr. Justice Harman said in 1957. He said:
"It is not for English lawyers to dislike or distrust the principle of the closed shop, for they are all members of a society which itself lives and thrives on this principle."
At any rate, here is an issue which raises great social and industrial problems, eminently suitable, one would have thought, for full and dispassionate exploration by the Royal Commission which has been set up by the Government. But surely this is not a matter which ought to be disposed of by a sidewind of judicial legislation, such as occurred in the Rookes v. Barnard case. Prior to that case, our judges, broadly, accepted the view that the policy of the law was to refrain from intruding into the field of labour disputes. Collective bargaining took place under what may be described as a set of Queensberry
50
Rules, without benefit of litigation, which was believed to be more likely to exacerbate than to improve industrial relations. The mischief of the Rookes case decision is that it upset this delicate balance, and so disrupted the previous confident feeling that workers were free to bargain without fear of ruinous litigation. This seems to me to be a very moderate Bill to achieve the limited aim of restoring, so far as it can be restored, the pre-Rookes v. Barnard situation. As such, I think that the case for this Bill, in principle, has been made out, and that is why I venture to support it.
5.22 p.m.
LORD BLYTON: My Lords, I should like to congratulate the noble Lord, Lord Lloyd of Hampstead, on what has been a splendid and informative speech. He delivered his speech very clearly, and I hope that we shall hear him on many occasions in the future. In supporting the Second Reading of this Bill I desire to declare an interest. I have been a trade unionist for 50 years, and I am proud still to be a member of my trade union. I shall speak on this Bill to-day from experience, and not from the point of view of a lawyer.
This Bill is not making any new departures in the law governing trade unions, but simply restores the law to what we had thought it to be for over 50 years. The Bill does not legalise the closed shop; nor does the Bill prevent it. But it had better be observed by your Lordships that many employers are not hostile to the enforcement, as a condition of employment, of membership of a trade union—and their reason, in many cases, is that it fits in better with their modern ideas of order and authority. And at this point I want to make my attitude quite clear: I have nothing but contempt for anyone who will not join his trade union and is prepared to take all the benefits the trade union gets for its members without contributing anything. What is more, in all my life I have never known any non-unionist who was so keen on his principles, so sensitive, as to decline to take the rewards obtained by trade union action.
This Bill is not laying down a law that all employees must, as a condition of employment, be in a trade union. The Bill is necessary only because the Rookes v. Barnard decision has thrown

51
trade union law into confusion. It has created uncertainty about the position of trade unions and their officials if they threaten strikes in the course of negotiations. In my time as a local leader of miners, I have often threatened to stop the pit, and I have stopped the pit. I have taken the men on strike in breach of contract, and even in defiance of my own head office. When you lead men and you get a manager or an agent of a company who would inflict bad wages and conditions, and when all the talking in the world will not shift him, then the last shot in your locker is to strike. The old coal owners were the worst men there ever were as employers, and the only thing they understood was a strike. Without the right to strike or to threaten to strike, trade union negotiations would become meaningless, because they would have nothing to bite with, and there would be no power to go to the employer with the ultimate sanction—and it is the only sanction the trade unions have.
It was for this reason that in 1906 the Trade Disputes Act was brought forward and passed, with the idea of reversing the Taff Vale decision. It created for the workers the right to exercise their democratic liberty to strike without fear of legal consequences, without having to look behind their backs, study the legal textbooks or refer to legal decisions to see whether or not it was the correct thing to do. That was what everyone understood to be the position in law in regard to trade unions and the right to strike, until the Lords decision in the case of Rookes v. Barnard last year. This Bill does not affect the right of the employer, where a strike takes place, to sue the employees who strike for breach of contract, and to claim damages. I myself have been in court over twenty times facing charges of breach of contract, and we have had to pay damages for laying the pit idle. But, whatever damages we had to pay, we often found that strikes resulted in a better settlement than we otherwise should have got.
So this Bill only rectifies what has always been done in my lifetime without any fear or damages being sought against us for breach of contract. In
52
1941, Lord Wright, in the great Crofter case, said on the rights of labour:
"Where the rights of labour are concerned the rights of the employer are conditioned by the rights of men to give or withhold their services. The right of workmen to strike is an essential element in the principle of collective bargaining".
It is because this essential element is now in danger because of the Rookes decision (and the gist of this decision is that the threat to strike in breach of employment is a tort, and the Act of 1906 provides no defence against an action based on that tort) that the protection which this Bill gives us is now necessary. Even Lord Donovan has expressed the view that if this judgment stands it is clear that the protection we all thought existed under Sections 1 and 3 of the 1906 Act is largely illusory. It is because of this fear that the trade unions have pressed for legislation to put them in the position they always thought they were in.
I know it will be argued that this Bill will give support to "wild cat" and unofficial strikes. I reject this, and I consider that the opposite is true. If trade unionists, trade union leaders and officials are threatened so as to prevent them from exercising this right it will be exercised just the same; but it will be done unofficially. This will be the effect of the Rookes v. Barnard case and other decisions which have followed. All these cases, in so far as they inhibit trade union leaders from exercising their rights, will play into the hands of the leaders of unofficial strikes. Where there is no scope or provision for official strikes, where official trade union leaders and responsible shop stewards or local officials are unwilling to do whatever they ought to do because they are afraid of the consequences, other people will then take their place. Hence I am sure that if the law is allowed to stand as it is it will not only be an inhibition against the rights of official trade union leaders, but will tend to encourage unofficial strikes. If the law is allowed to remain as it is, then unofficial strikes will increase; and this is another reason for the urgency of this Bill.
The Bill, as I see it, means that the unofficial striker will not threaten to strike; he will just go on strike. That would not be a tort. On the other hand, the official trade union leader who gives due warning

53
to the employer and threatens to withhold labour as a last resort, will be liable to court action. This is surely a fantastic position. This is not only bad for the trade unions but bad for our country as well. This Bill is not only a Bill to preserve the rights of the trade unions, but is also a matter of preventing the deterioration of the unions and the multiplication of unofficial actions which we all sometimes regret. It is the obstacle to the freedom of the trade union official to threaten strike action when it is necessary, an obstacle that has no connection with whether the strike would be in breach of agreement or not, that must be removed.
In the present circumstances, trade union officials will deem it safer to countenance unofficial action than negotiate through the machinery. There is no advantage to anyone if we get into a position like that. It will most certainly make it more difficult for the trade union leaders to do their jobs in a sensible and consitutional way. The trade unions are not anxious to get involved in legal action; nor do we want to become indentified with those who believe that it is possible to determine industrial relations by going to law. In many ways the law cannot deal with issues that arise in the day-to-day relations between work-people and their employers. When it is clear, however, that a decision impedes the trade unions in their functions and once a legal decision impinges on the basic functions of a trade union they have no alternative but to appeal to the Government of the day to rectify their position. The trade unions appealed to the Tory Government; but they refused to do anything. Hence I am pleased that the Labour Government has brought this Bill forward.
This Bill has nothing to do with the "closed shop"; the measure before us is not a charter giving freedom to those who would exercise unjustifiable pressure on people to come into the trade union movement, although I believe every man ought to be in a trade union who works in the factories or in the pits. Nevertheless, there are certain circumstances in which the closed shop system is felt to be desirable, both by management and trade unionists—and we must not forget that the lawyers, doctors and other professional people have their closed
54
shop. The argument today is not that of giving the trade unions a privileged position, as was argued by the noble Viscount, Lord Massereene and Ferrard. We are not pleading here as supplicants, asking for a privileged position; we are asking only to be put in the same position which all of us felt was the situation before the House of Lords' decision was taken. If that situation was wrong, it has been wrong for a long time. If trade union officials are now in danger, I cannot understand the argument that this dangerous position should be allowed to continue indefinitely or until a Royal Commission has made its report followed by legislation. It could be years before such a decision is arrived at. It would be wrong and unjust that the trade unions and industrial relations generally should be faced with this dangerous situation for possibly a number of years.
When the leader of a trade union speaks to his members at a branch meeting and conducts the union business with his local colleagues in the way that it has been conducted for many years and which conforms to the generally accepted view of relations between management and trade unions on the issue of strikes, he now finds all of them subject to the most grievous penalties and the union subject to heavy damages involving huge costs by this decision of the Law Lords. In this context we regard this matter as one of major concern to the unions. If this judgment is not repealed by this Bill, good industrial relations, harmony and peace in factory and workshop will be made more difficult to sustain in the future. The Royal Commission will have to investigate many of the problems of industrial relations and it is important that their work should be carried out in an atmosphere free from the anxiety, uncertainty and anger that has been produced in the trade unions by the Law Lords' decision on the Rookes v. Barnard Case. It is very desirable that this state of uncertainty should be eliminated.
My Lords, the main burden of my case in support of the Bill is that the case of Rookes v. Barnard established for the first time that a threat of a breach of contract of employment can give rise to an action for damages for the tort of intimidation. It was also established that

55
almost all strikes, whether official or un-official, involve breaches of contract so that almost every threat of a strike contains a possibility of an action for intimidation being brought. This has created doubt and confusion and it is now making it difficult for the trade unions to carry on their normal activities. Although the Rookes v. Barnard decision was of a "closed shop" case, the effect of the decision is not restricted to strikes to enforce a "closed shop" but extends to other types of strikes as well.
It has been argued by the Opposition in another place that the protection of the Bill ought not to be extended to strikes directed against a particular individual or to certain other types of strikes, such as unofficial strikes, breach of procedure strikes, demarcation disputes and so on. I am pleased, however, that this Bill follows the general lines of trade union law and applies it to all strikes in pursuance of a trade dispute.
It would not be appropriate in a measure of this kind to distinguish between different kinds of strikes or to attempt to legislate against some kind of strike action. The major questions of industrial relations which are raised by such decisions are matters which could be considered by the Royal Commission on trade unions and employers' associations, and it would not be right for this House to prejudge the findings of the Royal Commission by taking legislative action in advance of its Report. Therefore the Bill is confined to restoring the legal situation which we thought had existed.
This Bill also gives much needed clarification to the position of trade unions in law and clears the way for the Royal Commission's work. I am pleased that Clause 1(2) was amended by the Government during the Commons Committee stage discussions. It provides that the Bill will apply to proceedings brought in respect of acts done before the Bill becomes law unless the proceedings are instituted within six months of the passing of the Bill into law. But for this subsection, all proceedings in respect of acts done before the Bill becomes law would be settled under the law as it is now, following the Rookes v. Barnard. decision. This
56
might be long after the Bill became law, because proceedings could be brought for six years after the acts to which they relate. It would have been most unsatisfactory to leave the threat of such proceedings hanging over trade unionists for years after the Bill became law, and it would have detracted seriously from the usefulness of this measure.
My Lords, the trade union movement still faces hostility from many quarters, but it is a vital and integral part of our industrial society. Most respectable employers recognise that a responsible trade union plays a very big part in the maintenance of industrial harmony. There are thousands of men and women in the trade union movement in our industrial society who keep the machine going day after day, and one must understand their feelings when a person on the shop floor will not join a union but takes all the benefits which the union secures by agreements. Changes in the last 35 years have greatly improved the attitude towards trade unions and the hostility towards them has abated greatly. There have been great changes in industry and, with them, changes in the trade union world. In the years that lie ahead there will be greater changes.
During the last fifty years it has been the manual workers who were the ardent trade unionists. They saw that only in combination with their workmates could they protect themselves from exploitation, and win respect. The right to strike has always been one of the essential features not only of our trade union rights but of the democratic rights of the people of this country, and the power and influence of the trade unions has grown over the years. Now we are in the age of automation, with technicians, draftsmen and other professional people in staff unions, and new organisations are fighting for recognition. There could be trouble in their fight to get recognition, as is witnesed by the confidential document on staff organisation issued by the British Employers' Confederation and referred to in The Times of October 26, 1964. This document tells the Confederation's member organisations that they are under no obligation to recognise trade union representation. It goes on to state that there is a danger that, once a staff union has been recognised for any purpose at all as

57
representing the interests of staff members, it will be encouraged to press for the full rights of negotiation.
I raise this matter because here is a most powerful organisation requiring its membership to do nothing in the way of recognition except after consultation with the Confederation, and suggesting ways and means whereby trade unions could be prevented from getting negotiating rights. It took many years of hard fighting and suffering by the trade unions a long time ago to get recognition for the manual workers. This document from the British Employers' Confederation represents an attitude of mind which belongs to the Victorian era and not to the present Elizabethan era. White-collar workers are setting up trade unions to protect their rights and wages. I hope that the Royal Commission will look at this matter, as these unions are growing very fast. The spread of trade unions among the white-collar workers is a characteristic of the present industrial picture. Their demands for recognition and the right to negotiate their wages agreements ought to be gracefully conceded and not, as in the past, be secured after great suffering has been endured. I regard the attitude of the British Employers' Confederation as deplorable.
Just as the decision in the Rookes v. Barnard case reinforces the opponents of trade unionism, so does this document try to prevent the development of the trade union movement among white-collar workers. For over fifty years leaders of trade unions involved in industrial disputes have said, and have thought it right to say, to employers, "If you will not give us our demands, or meet us half way, the men will strike." Or, on the other hand, they have said, "If you will not give us what we want, we will call out the men." All that time the procedures have been carried on without hindrance or interference, until the decision in the Rookes v. Barnard case. Although there are strikes in this country—there always will be—our country has a better record in this respect than many of the highly industrialised countries in Europe. This is not a far-reaching measure. Its scope is limited to removing a problem that has arisen in the law affecting the trade unions. All it does is to put the trade unions in the same position that they always thought
58
existed until the decision was made in the Rookes v. Barnard case. They are not seeking for privilege. I ask noble Lords to support the Government in this measure as it is designed to restore to trade unionism the rights which it has enjoyed for 59 years.
LORD CHAMPION: My Lords, I beg to move that the House do adjourn during pleasure for the Royal Commission at six o'clock.
Moved accordingly, and, on Question, Motion agreed to.
House adjourned during pleasure.
House resumed.

ROYAL COMMISSION
6.0 p.m.
The following Bill received the Royal Assent:
Law Commissions.
House adjourned during pleasure.
House resumed.

TRADE DISPUTES BILL
6.13 p.m.
Debate on Second Reading resumed.
LORD CITRINE: My Lords, like the noble Lord, Lord Blyton, I am a trade unionist. He was a miner, and I was an electrician, and both our unions have a reputation for militancy and being undeterred by legal penalties from doing the things they thought were justified in the interests of their members. My noble friend Lord Lindgren told us in opening this debate that this Bill restores the law as it was prior to the decision of Rookes v. Barnard. The noble Lord, Lord Conesford, has told us what those of us who have been engaged in trade unionism for many years as members and officials already know, that trade union law is very complicated. It has been my experience of over 50 years, 33 of them as an acting official, that in point of fact there are many lawyers who do not understand it.

59
The noble Lord, Lord Conesford, for example, who is always extremely careful in documenting himself completely and thoroughly when he addresses this House and who is, of course, an eminent lawyer himself, told us that he was not sure whether in fact the Bill did restore the position to what it was prior to the Rookes v. Barnard decision. He implied, it seemed to me, that there were other grounds upon which it would be found in all probability, or possibility, that there were still avenues of prosecution of trade unionists for breaches of the law which they are not now conscious of.
This is not the first time that Parliament has set out to restore the law. Indeed, I think it can be fairly said that the history of trade unionism has been one of Parliament enlarging the functions of the unions as the years have gone by, and of the courts restricting those functions by various legal decisions which Parliament ultimately was called upon to change in a more favourable manner to the trade unionist. The greatest change of that kind that I can recall was that of the Trade Disputes Act and Trade Union Act, 1906, certain effects of which have been, in the eyes of trade unionists, gravely upset by the decision in Rookes v. Barnard, and which this Bill seeks in substance to re-establish.
I took the trouble to look up some of the speeches that were made on the Trade Disputes Bill in November, 1906, and one of the Members of another place—I quote from THE PARLIAMENTARY DEBATES, Vol. 164, col. 890, 9th November, 1906:
"submitted that whatever else was doubtful about the Bill"—
that was the Trade Disputes Act, 1906—
"one thing was clear, and that was that it was an attempt—an honest and generous attempt, as he believed—to get back to a position which the public had always understood was secured by law to trade unions."
Later on in the same debate he said:
"This was not the only occasion on which great Courts and great Judges had produced great surprises by their interpretation of some of the legislative efforts of this House. It was wonderful how quickly lawyers could persuade themselves that they had never held opinions which subsequently proved to be erroneous."
Then that same Member said:
60
"But there was a much more important question than what the opinion of lawyers was on this subject, and that was, what was the opinion of the country, what was the opinion of the public, on this question from 1871 onwards?".
The Member who made that statement was not an obscurity. He rose to be an eminent lawyer, and enjoyed a position of high office under the State. It was the man who became Sir John Simon, and later Viscount Simon. To the credit of the Liberal Government, despite the intense opposition they had to face in 1906, they did pass that Bill. It has been regarded by trade unionists as very much their charter. What was the law supposed to be? Evidently, according to the stages through which the case of Rookes v. Barnard passed, the appeal courts did not know. They thought that the law covered and protected the people who were concerned in the Rookes v. Barnard case. The noble and learned Lord the present Lord Chancellor certainly thought that in his most eloquent and, to me, convincing speech in support of the defendant.
Trade union officials like myself who have a smattering of legal knowledge about the functions that were legislatively committed to the trade unions, shop stewards and members, were all firmly convinced that they were covered against actions of the kind which arose in Rookes v. Barnard and that they were thoroughly protected by the law. Even the noble Lord, Lord Conesford, said to-day that he was surprised at the decision, and he told us that he had written a book upon trade union law. He did not explain the grounds upon which he was so surprised, but the mere fact that he could be surprised showed that the decision in some respects did not conform to what he previously conceived to be the law.
I would emphasise that this Bill does not extend the law in regard to the trade unions. It tries as best it can to put the law back where it was. It could easily have altered the law in a manner more favourable to the trade unions by the alteration of one word—namely the word "only"; and had I been the Secretary of the Trades Union Congress at the time this decision was given I should have urged the Government of the day to do that in order to put the matter beyond the doubts which evidently arise

61
in the minds of the noble Lord, Lord Conesford, and others. But the Government resisted the temptation to do this and in simple language confined the Bill entirely to restoring the position as they. saw it.
It has been asked many times: Why this Bill now? Why not wait for a Royal Commission? Of course, on a complicated subject like this, traversing, as it must do, not merely this decision, but the activities of the trade unions and the employers' organisations generally, a Royal Commission can hardly be expected to report in a matter of a year or so. I have some knowledge of how long it takes for matters to get into legislation. All sorts of consultations have to take place, and after it appears that legislation is necessary it is surprising how much contention there can be before that legislation is actually put into law.
It has been said that the trade unions are in no danger. To whom do we look for authority on that? We know perfectly well, as we have been told by the noble Lord, Lord Conesford, this afternoon, that certain lawyers believe the position to be right while others question it. Who are we to look to for a pronouncement of authority upon whether or not the trade unions are in danger? Like the noble Lord, Lord Conesford, I have read the advice given to the Trades Union Congress, but that advice did not settle it. It did not satisfy the trade unions which attended the Congress immediately afterwards. They suspect, as I suspect, that doors will be open by what I deem to be the sophistry of the Rookes v. Barnard decision, and that the trade unions will find themselves in quite unexpected difficulties, and as wise men they are not going to take the risk for five years, or whatever the period may be, while a Royal Commission is investigating and while legislation is being prepared.
The noble and learned Lord the Lord Chancellor in another capacity said during the case of Rookes v. Barnard that if the plaintiff's case was established it would be driving a coach and horses through the 1906 Act. I do not think any of us would disregard an opinion of that kind from an eminent lawyer and one who was probably (if I may say it here, without undue flattery) at the highest point
62
he could attain at the Bar—it would drive a coach and horses through the Trade Union Act.
LORD CONESFORD: My Lords, I am sure that the noble Lord, Lord Citrine, draws a distinction between what the noble and learned Lord the Lord Chancellor said in part of his argument as an advocate and what he says as a Judge.
LORD CITRINE: My Lords, I do not quite understand. There is evidently a code of morality operating among eminent lawyers that I do not share.
LORD CONESFORD: I am certainly saying nothing against the proper conduct of the noble and learned Lord the Lord Chancellor, whom I regarded as the greatest advocate at the Bar, but I do not think that any advocate at the Bar wishes what he puts forward as part of his argument, although he may still believe in it, to be taken as having the same sort of force as his opinion given judicially would have.
LORD CITRINE: My Lords, I do not think I need attempt to answer that as I imagine the noble and learned Lord the Lord Chancellor will find himself quite capable of dealing with that point.
This decision in Rookes v. Barnard has imported a degree of intimidation that I never suspected. In the trade union movement we always thought of intimidation as in the category of using violence or menaces. There was no such suggestion in this case. It was discovered that injury and a threat to cause that injury was in fact intimidation. I do not think many people knew, prior to that decision being given, that although they were as trade unionists protected against criminal proceedings, they were liable to civil proceedings. I think that point rather surprised them when this decision was given. Whether we like it or not, a decision on intimidation has been carried very much wider than most people in the trade union movement believed it to be. When does a warning become a threat? If a trade union officer goes to an employer and makes a statement, however carefully worded, to the effect that the employer may find himself denuded of the majority of his employees if certain things are not done, is that a warning or a threat? Who is to determine the inflexion used in discussions of that kind?

63
We know how easy it is by means of the voice to change the meaning of words very substantially indeed.
I say it is too dangerous for the trade unions to risk for a period of five years, and it is too dangerous, in my opinion, to leave the issue to judges to determine. I do not want to embark on that question, but I am quite sure that sooner or later in issues of this kind there will have to be unanimous decisions reached in the highest courts of law. There must be no decisions by a majority vote. I know, of course, that that does not apply to this immediate case, but none the less it is something which will make us a little more secure from the vagaries of interpretation of eminent Judges.
In another place—I was tempted to say "the House of Commons", because I cannot understand why we who receive Bills from the House of Commons stamped on the back, "Brought from the House of Commons" have to pretend in terminology not to know that such a place exists and are required to call it "another place"; surely the modernisation which is called for in industry might be applied a little to the proceedings of this House. However, in the House of Commons—I am trying to be logical—one of the principal points which was brought forward was that this would put a premium upon unofficial strikes, strikes in breach of contract. I ask myself this question. An employer under the present law can prosecute men who cease work in breach of contracts. Why do they not do so? How many cases of that taking place have we read of in recent years? Have we in the last fifteen years or so heard of a case in the mining industry of prosecution taking place for breach of contract?
LORD CONESFORD: When the noble Lord says prosecuting, does he not mean suing?
LORD CITRINE: Yes, I am sorry for the error; I really meant suing in the courts; it is summary jurisdiction and that perhaps mislead me. But the fact is that that remedy is not used.
There is a moral behind that, and the moral is that the employers know that their relations with the workpeople cannot be settled by law, no matter what the law prescribes. If these men go back to
64
work after being fined, or whatever it may be, by a court for a strike in breach of contract, what frame of mind are they in? Every intelligent employer knows that the good will of the employees is one of the strongest assets he has. Is he going to throw that asset away to pursue some legal remedy which might in itself prove to be completely inefficacious? I say that because I do not know the mechanism by which the law can force a miner to go down the pits with a non-unionist or anybody of that kind. I do not know the law which can force trade unionists to work alongside people who they deem are concerned only with avoiding their obligations to the unions and payment of the contribution to sustain the union activities in providing the very conditions that they enjoy.
It is, of course, said, and has been said many times: why do not the unions discipline their members? But the people who make these statements have not given ten minutes' consecutive thought to what the disciplinary powers of the unions are. Let me give an illustration. In London Transport, when Mr. Bevin was Secretary of the Transport and General Workers' Union, they had several unofficial strikes, contrary to union instructions and union agreements. The union brought these men before their executive body, and after careful examination of their powers excluded those men from the Union. But did that end the story? Oh no! The men went on working in London Transport, and eventually they formed a breakaway union. I think it was called the London Passenger Workers' Union, though I am not absolutely sure. And London Transport was in the unique position, because of legislation of a Conservative Government in 1927, that they could do nothing about it. I mention that because it is impossible to solve these matters so easily by legislation. Trade unions are voluntary organisations; they depend upon the loyalty of their members; they depend upon the sense of understanding that the members have for the benefits that are provided through trade union organisation. I think it would be utterly wrong to put workers in the position of trying to force them, infringing their collective liberty, to work with non-unionists.
The other issue that was raised would, I suppose, be described by its supporters

65
as a moral issue. That is the moral issue of the majority of the men in a shop saying "We will not work with so-and-so while he remains outside the union". The noble Lord, Lord Conesford, with his usual diligence, as I said in his absence earlier this afternoon, put a Question, I think on February 23, in this House as to the Declaration of Human Rights passed in the United Nations in Paris in 1948. He quoted Article 20 of that Declaration, and one of the points in that Article was that nobody should be compelled to join an association. Having regard to my estimate of the thoroughness of the noble Lord, Lord Conesford, I wondered why he stopped there. No mention was made of trade unions in that Article, but there was another Article, Article 23, which especially dealt with trade unions. It is quite clear, by analogy of reasoning, anyhow, that if it had been intended that Article 20 should include trade unions they would have been mentioned by name. Why mention by name in one Article and not by name in another Article?
My researches have perhaps gone a little further than Lord Conesford's. I found, on reliable information, that the British Government voted against Article 20 on the ground that it could not be implemented. I do not know whether the noble Lord, Lord Conesford, was aware of that.
LORD CONESFORD: My Lords, if the noble Lord is seriously saying that an association under Article 20 does not include a trade union I think he is wrong; but no doubt we shall hear about that. I think the reason why a trade union is specifically mentioned, not in the whole of Article 23 but in subsection (4) of that Article, is quite obvious when you read it. But I really think that the noble Lord is on a bad point when he suggests that "association" does not include a trade union.
LORD CITRINE: I am not making any charges. Perhaps human energy failed at Article 20 and did not carry on any further. I do not know. I only know that the noble Lord quoted one Article when there was another, only three paragraphs or so further on, which he did not quote. If I were drawing up an agreement as a trade unionist with an employers' organisation I should mention the union
66
by name. I would not trust to ambiguous language, such as was in that Article, and I think I am justified in saying that, at least by analogy of reasoning, Article 20 was not intended to apply to trade unions. I cannot imagine it would be.
The United States, during the course of the war, under the New Deal legislation made it a condition that workers should belong to the prescribed trade union for the particular shop. That was compulsory trade unionism. New Zealand had for a year a law under which all workers who were subjected to an award had to belong to a trade union. We in this country know that in nine cases out of ten where the workers are organised there is 100 per cent. organisation, and no room is left for people to slide out. That of course may he said to be completely immoral, but it is common sense, and it is the sort of thing that enables a much bigger factor—what I call good relations in industry—to be maintained.
I do not want to be completely negative in what I am saying. I believe that the Royal Commission can perform a great function. It is the first one to examine this subject that we have had for many years. I would say that one of the first things that it ought to consider is consolidating the law in respect of trade unionism, and if it is possible to simplify language which now may be archaic in places, I think that would be something worth doing. To my mind, Australia has the most complete code of legislation dealing with trade unionists. It has consolidated the law into a single Act of Parliament, and it covers almost everything, even to the point of not allowing a conscientious objector to avoid paying his dues, because an amount equivalent to those dues has to be paid to the consolidated fund of the country.
That again is something we might look at. There may be really conscientious objectors, perhaps on religious grounds, who may object to joining a trade union. There may be others who, on the spur of the moment, particularly when the union increases its contribution, become conscientious for other reasons—one does not know. But what is the test? Is the test merely to be a man's own statement, "I do not believe in trade unions; I do not want to join a trade union; but I am prepared to take all the benefit that

67
a trade union has provided for me and my mates" What is the test? What is to be laid down to make such a test valuable? These things do not get by in Australia. They have to pay up. I think the Commission would do well to study the Australian legislation. Some of it would be anathema to British trade unions because it provides for compulsory arbitration, which the unions here have always hated and which has been shown to be so discredited, due mainly to the acts of the late Government.
I would ask this question. Is it not fairly probable that further investigation into this matter ought to be made by on-the-spot visits? The International Labour Organisation has visited Soviet Russia, it has visited this country and it has visited Sweden, and it has produced factual, good and quite complete reports which have been published. But when it comes to an issue of this kind, surely it is not beyond the wit of the Government, through its representations to the International Labour Organisation, to get a delegation to go round which includes perhaps some members of the Commission but is not necessarily restricted to them, actually to see what is taking place and how far it accords with the facts, as distinct from the law on paper?
Noble Lords should ask themselves what will the trade unions be doing during this period? Is it not natural that they should be considering what remedies lie open to them? I myself know quite well that there are certain remedies. If the draughtsmen's union had carried out the contract that they had made on behalf of their members, it is doubtful whether the action of Rookes v.Barnard would ever have arisen, whatever else might have happened. I imagine the trade unions are not oblivious to the importance of instructing their members to give the required notice. It may be a week's notice; it may be even shorter, because there are still workers who are paid by the hour and have no weekly contracts. One of the first things that is possible, although I am not in a position to speak for the trade unions, is that they would receive advice, perhaps from the T.U.C., not to make agreements with employers providing that there should be no strikes, official or unofficial, because it was the existence of such an agreement as that
68
which was brought into the deliberations of the High Court to buttress their decision. It was regarded as part of the contract which they broke.
It may be that the unions will say, "Cancel such agreements as now exist. Throw them overboard. Give notice, of course, but throw them overboard. Let us go back to the jungle. Let us instruct our members not to give any reasons to an employer as to why they are going to cease work."
The noble Lord, Lord Blyton, I think spoke the equivalent of a thought which was in my mind, that a union is not compelled through its members to tell an employer why those members will strike. These members can walk out after giving the required notice with, so far as I know, no legal penalties attaching to them. Do we want to go back to that? I call that going back to the jungle. In my lifetime labour relations have been vastly improved, and the measure of confidence between the trade unions and the employers has become far more intimate than it was in my early days. I say that there is a danger of provoking industrial warfare unless a Bill of this description is carried.
When I was hurriedly making up my notes in a few moments, I was wondering whether there would be any application to this case of Gilbert's song in Iolanthe, which I think goes something like this:
"And while the House of Peers withholds
Its legislative hand,
And noble statesmen do not itch to
To interfere with matters which
They do not understand,
As bright will shine Great Britain's rays
As in King George's glorious days ".
Think over those lines.
6.47 p.m.
VISCOUNT DILHORNE: My Lords, the noble Lord who has just sat down has covered a wide field in the course of his argument. But he has, in fact, said little about the contents of the Bill, and I will, if I may, revert to his speech later. I think we have had an extremely interesting debate. In my opinion it is certainly an important one. We have had the pleasure of hearing two maiden speakers, and I should like to congratulate the noble Lords who so successfully overcame that ordeal. It is an ordeal

69
which most of us have experienced, though it may perhaps be less of an ordeal to someone accustomed to public speaking in the open air. The noble Lord, Lord Soper, has explained to me the reasons why he cannot be here this evening. In case he glances at Hansard to-morrow, I should like just to say this, that he was so obviously concerned to be uncontroversial on this occasion that he scarcely mentioned the Bill at all.
The noble Lord, Lord Lloyd of Hampstead, made what was to me a most interesting speech. He, too, was not in the least degree controversial, although I thought—and perhaps he, on reflection, will agree—that one of his observations was rather unfortunate. It was made when he was talking about Judges having outflanked the statutory authority. I am sure that he realises perfectly well that Judges do not sit down to try to outflank the statutory authority: they do their best, in the light of the arguments advanced to them, to give true effect to the intention of Parliament as embodied in the Statute. However, I am sure your Lordships will agree with me when I say that I hope we shall hear more from both Lord Soper and Lord Lloyd of Hampstead and that they will contribute again to our debates.
Before the noble Lord, Lord Lindgren, introduced the Bill I thought that I should have to express some sympathy to him, because he was tackling—and I know his views on lawyers—a subject which bristles with legal difficulties.
LORD LINDGREN: The less we have to do with lawyers the better!
VISCOUNT DILHORNE: That, I thought, was the whole assumption and basis of the noble Lord's speech. He spoke with great clarity, and indeed with commendable brevity, and certainly I shall seek to follow his example in that respect. But he scarcely made out any case for this Bill; and he evaded, as was his object, the difficult problems raised by the Bill. I do not think that these difficulties can be ignored, and I feel that we should face them. So many of the speeches which I have heard to-day seem to me to be on the assumption that the difficulties can be ignored.
Surely the real problem—and I want to state this as dispassionately as I can—is how to reconcile the legitimate functions
70
of trade unions, of their officials and of their members with the preservation of the rights of the individual. That really, as I see it, is the problem which the decision in Rookes v. Barnard has thrown up. But for that case we should not have had any Bill, and so perhaps I may be allowed to say a few words as to my understanding of that decision. I am very glad indeed that the noble and learned Lord the Lord Chancellor, who appeared for the respondents in that case, is able to take part in this debate, and I look forward to hearing his views on what was decided in the case. I am sure that the Lord Chancellor will be the first to make it perfectly clear that a phrase used by him in the course of arguing the case, such as "driving a coach-and-horses through a particular Act", ought not to be regarded as a considered judgment of his as to the effect of the decision of their Lordships in this case.
There is no doubt that, directly that decision was given, great alarm was felt in trade union circles. That alarm has been borne witness to by speeches from noble Lords like the noble Lord, Lord Blyton, to-day. It was felt that trade union officials and members would be inhibited in the discharge of their normal functions by the fear that if they acted as they had been acting in conducting negotiations for wage increases they might find themselves in the courts. But gradually it has been realised that the consequences of this decision are by no means so far-reaching as was first thought. That decision was given on January 21, 1964, and I must say that I have failed to notice any difference in the way in which trade unions and their members have acted since then, as compared with the way in which they acted previously.
LORD BLYTON: My Lords, if I may rise on a point of order, I would point out that trade union officials have had instructions to be very careful in their language since the Rookes v. Barnard case was decided.
VISCOUNT DILHORNE: It is not for me to comment on the language used by trade union officials, but it may be that it would be improved by a little more care in its exercise. I do not think that I had better go into the language of trade union officials: I am looking only at their conduct. And, so far as I can see, I fail

71
to notice any difference between the way in which trade unions and their members have acted since that date, January 21, 1964, and the way in which they acted before. It is certainly true that the decision has had no inhibiting effect on unofficial strikes. One criticism of this Bill is that, as it is drawn at present, it may well increase unofficial strikes and the threat of them.
It has long been recognised that there was a tort of intimidation. In fact, the Lord Chancellor sought to argue that it was an invention of the writer of Salmond on Torts, but it was recognised in this case in the Court of Appeal whose decision was reversed by this House. One form of that recognised tort was to threaten to do or to procure an illegal act with the intention that the person threatened would be made to do something which he had a legal right to do but which would cause loss to the plaintiff. As I understand the decision of this House, it was held that a threat to break a contract made with the intention of inducing a person to do something he could lawfully do, with the intention of causing loss to a third party, that being the object of the threat, constituted intimidation. That was something which was not generally realised, and that was the point to which my noble and learned friend Lord Conesford was referring in the course of his speech; he was not referring to any difficulty about construing and interpreting Section 3 of the Trade Disputes Act, 1906. I hope that I have made that clear to the noble Lord, Lord Citrine.
It may be that, before this decision was given, many thought that the making of such a threat in relation to contract with such an object did not constitute intimidation at all, and that consequently, quite apart from any statutory provision, such threats could be uttered with impunity. The general law has now been clarified by the decision in the Rookes v. Barnard case. As was pointed out in that judgment, in our modern days intimidation by such threats may be far more potent than intimidaion in other ways. One thing that I can find to say in favour of the Bill is that it does not purport to redefine the tort of intimidation. As I understand it, the object of the Bill is to make it impossible for a plaintiff to succeed in an action for
72
damages for the commission of that tort in certain circumstances. It is not altering the definition of the tort but is making it impossible in certain circumstances to obtain damages for the breach.
A great deal of the Rookes case was concerned with the proper interpretation of Section 3 of the Trade Disputes Act, 1906. It may be that that section was thought to give much wider protection than in fact it does. The argument throughout by those who support the Bill and who say that there is a need for it has been that we must restore the law to what it was thought to be. In fact the noble Lord, Citrine put forward that view.
LORD CITRINE: I certainly did. I was making the point that if the Court of Appeal, by a unanimous decision, thought that the law gave protection, then trade unionists were justified in thinking that it did.
VISCOUNT DILHORNE: I am glad I did not misrepresent the noble Lord, but I am sorry that he has not studied the work by his son with greater thoroughness. His son made it perfectly clear in his book that the protection given by Section 3 is extremely limited. May I quote one passage from page 476 of the book:
"If there is some ground of action other than the mere fact of interfering with contractual relations. the section does not afford protection."
That is a reference to Section 3 in a book written by Mr. N. A. Citrine. It is a very reliable book which I commend to the noble Lord.
LORD CITRINE: My Lords, although I took no part in compiling that book, I am quite sure that I know it a great deal better than the noble Viscount.
VISCOUNT DILHORNE: I hope this will not lead to any family feud. Obviously, there was a great disagreement between the views expressed by the noble Lord and the views expressed authoritatively by his son in this work. I think the son was right I am on his side; but I do not want to pour any more oil on these troubled waters. Perhaps I had better say that I do not think his son was alone in that opinion. Does the noble Lord want to intervene? I wish his son were here to carry on the argument.
LORD CITRINE: I want to thank the noble Viscount for this free advertisement.
VISCOUNT DILHORNE: I never mind advertising something which is so obviously correct, as was that particular passage—even when it is repudiated by the father of the author. I hope that in the light of that passage the noble Lord will say that he was a little wrong in his recollection.
May I pass on from that to say this? In the light of that passage, I certainly cannot accept for one moment that this Bill does no more than restore the position to what it was thought to be before the decision in Rookes v. Barnard. I quite see that in the light of the anxieties raised by that decision a case could be made for saying, "We want to put it beyond doubt that in the conduct of the normal negotiations for an increase of wages and matters of that sort a threat to strike will not be regarded as intimidation". If that were the case which was being put forward and contained in this Bill, the argument for this Bill would be very much stronger than it is now. One could say then, "We want to do this to remove the doubt as to the extent of the application of this tort of intimidation". But the Bill goes much further than that; it goes in my view unnecessarily far. It goes so far as to give protection which under Section 3 was not, I think, given before—protection against an action by a man in the position of Mr. Rookes, who may have been grievously wronged and who is deprived of any remedy at all.
We were told by the noble Lord, Lord Lindgren, that what one might call "closed shop cases" were very few in number, and I believe that to be the case. I am certainly not going to seek to argue the merits of, or the objections against, the closed shop to-night. All I say is that where you have it established as part of the law of the land that intimidation of one party to make him act to the injury of another is an actionable wrong, then by this Bill you are depriving the individual who is wronged of any opportunity of redress. Before any such change is made I should have thought it was far better to have the views of the Royal Commission.
Reference has been made to the Declaration of Human Rights, and, with
74
great respect to the noble Lord, Lord Citrine, I can see nothing inconsistent between Articles 20 and 23. Article 20 provides that no one may be compelled to belong to an association. As the law now stands, if efforts are made by intimidation to compel someone to join an association that person can obtain damages. What the noble Lord is seeking to do, by supporting this Bill in its entirety, is to remove that protection from the individual—protection which the trade unions, if my view of the law is right and if the view of Mr. Citrine is right, have never had.
I hope that when we reach the Committee stage we consider whether we cannot meet the anxieties of the trade unions by limiting this Bill, to make it quite clear that no proceedings for intimidation can be brought in respect of what I might call the ordinary negotiations which are conducted, but still leaving it to be the law, until we have seen the Royal Commission's Report, that the individual in the position of Mr. Rookes, who is treated in the same way as Mr. Rookes was, will not be deprived of his remedy. I think it would have been impossible to draft a Bill on those lines. I hope that it will be possible so to amend this Bill that when it leaves this House it will be on those lines, because if the noble Lord, Lord Blyton, and the noble Lord, Lord Citrine, whose sincerity on these matters I should be the last to question, felt that removing the doubt in relation to what I might call the normal negotiations would suffice, then I believe that this Bill would have a fairly easy passage.
I should like, in conclusion, to say that we shall do what we can to improve this Bill in the course of its passage through the House. My noble and learned friend Lord Conesford asked the noble and learned Lord the Lord Chancellor—unfortunately, during his unavoidable absence—this question. He asked whether he was quite confident that the Bill achieved the object of reversing the decision in Rookes v. Barnard, because he thought that the omission of the purpose of the breach of the contract was very relevant in that connection. A somewhat similar doubt was raised in the House of Commons by a Liberal Member, and I would ask the noble Lord to give serious consideration to that.

75
As I see it, there are three questions which we have to consider. First, could this Bill be drawn in such a way as to remove the legitimate anxieties, so far as they are legitimate, of trade unionists arising out of the Rookes v. Barnard case? Secondly, is it necessary, pending the Report of the Royal Commission to go further and deprive the individual in the position of Mr. Rookes of his remedy? Thirdly, if it is necessary to go to that further stage, does this Bill effectually do it? I must say that I am rather inclined to share the doubts expressed by my noble and learned friend upon that point, but it is one which I should find it extremely difficult to be positive about.
I would end on this note. I think it is extraordinary and very unusual for a Bill of this sort to be brought in immediately upon the appointment of a Royal Commission. I cannot think of any other example of it. The fact is, of course, that this Bill was brought in, as the Minister of Labour said last August, for one purpose only. He said:
"We will restore the legal position the unions thought they had before, on the very clear understanding that they will co-operate to the full in a broad inquiry into the position of the unions and their relationship to society."
I share my noble and learned friend's views as to that kind of bargain being made by trade unions for sharing and co-operating in this task. I agree with the noble Lord, Lord Citrine. I think it is full time—
LORD CITRINE: My Lords, may I interject on that point? Is the noble and learned Viscount suggesting that there was a bargain between the Trades Union Congress and the Minister of Labour?
VISCOUNT DILHORNE: My Lords, I quoted the words of the Minister of Labour—
LORD LINDGREN: He was not then the Minister of Labour.
LORD CITRINE: It does not say anything about bargaining.
VISCOUNT DILHORNE:—last August, when he said:
"We will restore the legal position the unions thought they had before. on the very clear understanding that they will co-operate
76
to the full in a broad inquiry into the position of the unions and their relationship to society."
The noble Lord can use what words he likes to describe that arrangement, but I should have thought it was fair comment to say that that amounted to a bargain. What I would say myself is that, if this Bill is the price of co-operation, I hope the price is not so great as in any way to inhibit the Royal Commission from saying—if they think it is right to say it—that this Bill, if it reaches the Statute Book in its present form so as to deprive individuals of their right to redress and in conflict, if not with the letter at least with the spirit, of the Declaration of Human Rights, should be repealed or at least drastically amended.
7.10 p.m.
THE LORD CHANCELLOR (LORD GARDINER): My Lords, I agree with the noble and learned Viscount, Lord Dilhorne, that this has indeed been an interesting debate. I should like, if I may, to apologise to the noble Lord, Lord Conesford, for the fact that, for reasons which were unavoidable and which were conveyed to him through the usual channels, I missed part of his speech; but I heard the rest of the debate, and it has been an extremely interesting one.
As your Lordships know, the object of this Bill is not to reform trade union law. A Royal Commission, a very strong Royal Commission indeed, has been appointed for that purpose. The object of this Bill is simply to restore the law in the field of trade disputes to what it was before Rookes v. Barnard was decided. Of course, if you are going to do that, it is impossible at the same time to make exceptions and to say, "While Rookes v. Barnard in the law it laid down was no more concerned with the closed shop than with strikes for other purposes, and while Rookes v. Barnard was no more concerned with unofficial strikes than with official strikes, instead of putting the law back to what it was we will change it and make an exception for a closed shop. or for an unofficial strike"
Questions of the closed shop and the union shop (which cover, of course, a very high proportion of all industrial workers) involve, apart from anything else, complex questions of definition, just as anything does which embraces trade

77
union officials—or, for that matter, unofficial strikes. Your Lordships may remember one trade union which simply passed a rule that any unofficial strike was to become official. If you are going to alter trade union law, you have really got to think, because it is no use altering it by Statute and then finding that a simple change in the rule book gets you back to where you were before. Before Rookes v. Barnard, there was reasonable certainty as to what the law was, and if we want to restore reasonable certainty we can do so by a Bill of this kind; but we should, I suggest, be most unwise to try to do what the noble and learned Viscount suggested—namely, instead of putting it back to what is was, say, "Let us pick out some one thing we do not like, such as a strike the object of which is a closed shop, or a strike which is an unofficial strike, and, ahead of the Royal Commission, and without that careful deliberation which any change of that kind would need, seek to alter it in this Bill."
The difficulty of Rookes v. Barnard has been that nobody quite knows what it was that it decided. I have read—and I have no doubt that a number of your Lordships have read a larger number of opinions by different learned counsel on this subject than on any other I can remember, and hardly two that agree. The noble Lord, Lord Conesford, pointed out that distinguished lawyers like Mr. Wedderburn and Professor Hamson entirely disagree about the whole case from beginning to end. When the decision of your Lordships' House in Rookes v. Barnard was considered by the Court of Appeal in the subsequent case of Stratford v. Lindley, the whole Court of Appeal was of the opinion that what was done was clearly done in contemplation or furtherance of a trade dispute, but two members of the Court—the learned Master of the Rolls, Lord Denning, and Lord Justice Salmon—held:
"…that the defendants were not guilty of the tort of intimidation, the essence of which was the coercive threat to do an unlawful act, for a threat to induce some person to break a contract of employment, if made in contemplation or furtherance of a trade dispute, is, like the actual inducing of such a breach in like conditions, protected by Section 3 of the Act of 1906."
They then proceeded to give rather different reasons why they thought that, but together expressed the opinion:
78
"The House of Lords was not required in Rookes's case to consider the question whether a trade union officer who threatened to induce others to break contracts of employment was or was not protected against an action for intimidation by Section 3. The scope of the decision in Rookes v. Barnard should not be extended beyond its particular facts, for such a result might well induce industrial chaos".
Lord Justice Pearson, on the other hand, did not agree with any of that at all, and did not consider that they were protected by Section 3. In your Lordships' House, as your Lordships were of the opinion there was not any trade dispute at all, those interesting questions were not determined. So all lawyers are still necessarily in a state of very great doubt as to what Rookes v Barnard decided, and must remain so in relation to Section 3 until the conflict of judicial opinion in the Stratford case has been resolved.
The noble Lord, Lord Conesford, asked me whether I was clear that the Bill as drafted achieved the object of reversing Rookes v. Barnard Strictly speaking, of course, it does not: it reverses it only in the limited field of an industrial dispute. It was perhaps a matter of some doubt before Rookes v. Barnard whether there was a tort of intimidation, although I agree there was always the eighteenth century case of the two ships. His second question was whether, assuming that there is such a thing as a tort of intimidation, it is confined to a threat to commit a criminal offence or to commit a tort, or whether it extends to a threat to break a contract. Now, there is no case in English law in which it has ever been held, if it existed at all, to extend to a threat to break a contract, and the Court of Appeal unanimously said that they could not extend it to a threat to break a contract.
Of course, the law as to intimidation and what it consists of is in no way limited to industrial disputes. It covers the whole field of law wherever somebody threatens to do something unlawful. It may have nothing whatever to do with a trade union or with a trade dispute. This Bill does not in any way interfere with the law as laid down by the House of Lords about intimidation, except only in this very limited industrial field, and then only where what is done is done in contemplation or furtherance of a trade dispute. But, in so far as it

79
seeks to put the law back to what it was in that field, and in that field only, I think that this Bill in fact does so.
LORD CONESFORD: My Lords, I am most grateful to the noble and learned Lord for yielding. As he was inevitably away at the time, I want only to make quite clear what my question to him was. The Bill mentions:
"… in his threatening … that a contract of employment … will be broken …"
But that is preceded by the words,
"… on the ground only that it consists …"
My problem was that the tort of intimidation consists in threatening a breach of contract with a particular motive and result. What I was wondering was whether the absence of any mention of the motive and result would prevent the person committing the tort of intimidation from coming within the protection of these words.
THE LORD CHANCELLOR: I should not have thought so, but, of course, so far as any of your Lordships are going to be kind enough to improve the Bill to enable us to make quite certain that, in that limited field,Rookes v. Barnard really is reversed, I am quite sure that we shall welcome that assistance at another stage of the Bill.
Then the noble Lord, Lord Wade, thought there was a case for some interim clarification of the law, but said he would like to see a specific Amendment aimed at the closed shop. While I appreciate that point of view, there are, of course, many ways in which a lot of people would like to amend trade union law, once you start. They are mostly extremely involved, and want a very great deal of consideration—including, I think, consideration of what the laws of other countries are, how they work, and so forth. This is so admirably suited to a Royal Commission and, in particular, if I may say so, to such a high-powered Royal Commission as this, that I suggest that we should be ill-advised to try to tackle that in the course of this particular Bill.
The noble Lord, Lord Soper, spoke to us of the human aspect of the problem. If I may say so, I have had the great pleasure of hearing the noble Lord, Lord Soper, speaking in places other
80
than this. It has always been a great joy to me to hear him speak, and I shall look forward very much to hearing him frequently in your Lordships' House. The noble Viscount, Lord Massereene and Ferrard, would have liked an ad hoc Committee; but I would suggest that if any change is to be made before consideration by the Royal Commission, it should be by a simple Bill with a simple object, which this one has; and that, as we have appointed a Royal Commission, there would be no advantage in appointing a separate ad hoc Committee. But the noble Viscount expressed the opinion that the right to strike must be qualified. Every strike is an economic waste. I expect that a good many of us feel that it ought to be possible to find some other and more sensible way of determining what people's remuneration is to be; and if there is one strike more than another that would be deprecated by all of us, it is the unofficial strike.
It is sometimes said that the right to strike must be qualified—and I know that strong views are held about the closed shop: it is a subject on which no two people agree. It depends on where you are standing. If you are standing with that one man in the corner who does not choose to join a trade union, your view may be: "It is a free country, and it is intolerable that this man should be sent to Coventry or lose his job simply because he does not choose to join a trade union." But it may be that you are standing with the 99 others who hazard the view that the majority also have some rights. They say: "Unfortunately our employers never put up our wages as does the private employer who sees his secretary at the end of the year and says, I see that the cost of living has gone up. I must therefore increase the wages I pay.' For 30 years or so our employers have never given a single increase or improved condition unless it has been fought for by our trade union. Whenever our trade union, to which we subscribe, gets improvements in pay or in better working conditions, do you think that man in the corner says: I cannot take the increased pay or accept the better conditions because I am not a member of the union'? Not a bit! He takes every single advantage which is obtained, and obtained only, by the trade union, while refusing to contribute to the

81
organisation by which alone it is done." So, as I say, which view you take depends very much on where you are standing.
If the men say: "We are not going to work with a chap like that", the courts have had to realise (and I suggest that we must all recognise the fact: it is always wise to recognise facts) that you cannot make men work with a man with whom they will not work. If 1,000 men will not work, and we send them to prison, what shall we do with 10,000? There will not be enough room in the prisons. The problem becomes more obvious when you reflect that if a man just gives notice and leaves, this is perfectly all right. A man may be on a week's notice. If there are 7,000 in a factory and 6,999 of them give a week's notice because they will not work with Smith, that is quite all right. Nobody has suggested there is anything wrong with that. But when you reflect that a large number of workers are still on an hour's notice, it seems extraordinary to say that if a man does not give an hour's notice (or, if he is on a weekly employment, gives only six days' notice instead of seven) this is a tort; that it ought to be stopped, and that such people ought to be sent to prison, whereas if an additional day's notice is given it is then all right.
The noble Viscount, presumably because it has a very good record in relation to strikes, referred to Germany. Germany is one of the only two countries which have a better record than we have. It was said rightly yesterday, in another place, that the days lost through strikes in this country (and the figure is lower for the United Kingdom than for any other leading industrial country, with the exception of the Federal Republic of Germany and Sweden) is far less than 10 per cent. of those lost through industrial accidents and far less than 1 per cent. of the loss through sickness. It is far better than the record of the United States of America, of Japan, of France or of most of the other countries. So that our actual record is good. What is interesting about Germany, which is one of the only two countries that has a better record, is that, as I understand it, under German law strikes are not breaches of contract. They amount to a suspension of the contract but do not constitute a breach.
82
I now come to the speech of the noble Lord, Lord Lloyd of Hampstead. If I call him "my noble friend" it will be right in both adjectival contexts. I am sure that any lawyer of his distinction is a welcome addition to your Lordships' House, and we shall all look forward to hearing him many times again in the future. The noble and learned Viscount, Lord Dilhorne, rather criticised his statement that the Judges had outflanked the statutory authority; but there is a pretty long history—since the beginning of the century and, indeed, earlier than that—of Parliament seeking, obviously, to liberalise the trade unions and of the Judges so developing the Common Law as to penalise the trade unions to an extent not intended by Parliament. I am not suggesting for a moment that they did so deliberately, though there were some very learned judges like Mr. Justice Astbury who never decided a trade union case rightly, because his hatred of them, his manifest hatred, was so great that it warped his view. One must remember that in the 1906 General Election, which led to the passing of the Trade Disputes Act, one of the Liberal Party Election posters was of a High Court Judge, in his wig and robes, handing a flail to an employer for the employer to administer to the worker. It was in that atmosphere that the Act was passed.
The noble Lords, Lord Blyton and Lord Citrine, have given us the benefit of their own considerable knowledge of trade union conditions, and have both expressed the view that if the law remains as it is it is likely to increase the number of unofficial strikes. I suggest that must be so; and that is one of the reasons why, before the whole of this subject is considered by the Royal Commission, we should do well to put the law back to what, in this field, it was in practice before Rookes v. Barnard. The noble and learned Viscount, Lord Dilhorne, seemed to think that this Bill would be taking away some right which someone had before Rookes v. Barnard. That, I suggest is not so. The case books are littered with cases, in the '20s and '30s, particularly, where men who claimed to have been injured by closed shop experience, similar to that in the Rookes case, have taken proceedings and failed. I remember no case of that kind which succeeded.

83
So long as the law remains as it is now, so far as it is certain at all, it is bound, I suggest, to provoke an increase in unofficial strikes, because the position now is this. If the men pass a resolution, as they did in the Rookes v. Barnard case, saying: "If the employers do not do so-and-so then we shall come out next Thursday", if the trade union organiser keeps his mouth shut and simply lets them come out on strike he cannot be touched. But if he thinks it right to go to the employers, as did the trade union defendant official Silverthorne in Rookes v. Barnard, and to warn the employers of the men's resolution, then it may be that this will be called a threat as it was held to be in Rookes v. Barnard. The man may find himself liable to£4,000 damages, as the defendants were in fact ultimately in that case, and they lost their homes and all their possessions.
In that state of things, is it not more likely that a trade union official who wants to keep his little home together will say nothing rather than pass information of that kind to the employer? Because that has been one of the effects of Rookes v. Barnard—strike first, negotiate afterwards, nobody can touch you. The dangerous thing for any trade union official to do now is to start talking to an employer and telling him how the men feel, because nobody now knows whether or not, if he does that, he may not find himself, like Mr. Silverthorne did, liable for some thousands of pounds damages. It is on those grounds that the Government's view is that it would be right to take the course which this Bill takes. For the rest, we look forward to the time when the Royal Commission will give us a code of industrial relations suitable to the conditions in which we now live.
On Question, Bill read 2a, and committed to a Committee of the Whole House.

CRIMINAL PROCEDURE (ATTENDANCE OF WITNESSES) BILL
7.32 p.m.
Order of the Day for the Second Reading read.
LORD HODSON: My Lords, I beg to move that this Bill be now read a second time. This, I think, is not a controversial Bill. It is intended to modernise and simplify the procedure for the attendance of witnesses at Assizes and at quarter sessions. It carries out one of the recommendations of the Sixth Report of the Committee inquiring into and reporting on the reform of Criminal Law, presided over by Lord Justice Sellers, who has the assistance of four High Court Judges and other members of the Bar and of the solicitors' profession.
As I have already said, this is not a controversial Bill. It was initiated as a Private Member's Bill in another place by Mr. McLaren. I have had a letter from the noble Lord, Lord Stonham. My noble friend is not able to be present today because he is abroad. He has expressed his regret that he is unable to be present to welcome the Bill. I have said that it is not a controversial Bill and I do not think that it has any emotional content at all. Nor do I think I shall have repeated the accusation which was made against me a few moments ago by the noble Lord, Lord Citrine—he has now left the Chamber—of sophistry: at least, I hope not, as this subject hardly lends itself to that.
The Committee were asked to consider whether the law should be revised to make more effective provision to secure the attendance of witnesses in criminal cases and to provide better sanctions where they failed to attend. Clause 1 endorses the concept of a witness order in place of the old subpoena. A witness order made on the witness summons is already used in magistrates' courts, and this suggestion will have the effect of simplification when examining justices require to secure the attendance of witnesses. In some cases the court will think—this is also dealt with in Clause 1—that the witness may not be required, and in such cases a conditional order will be made which will not be effective unless followed up by a notice. The accused

85
has to be told of his right to insist on the attendance of a witness in respect of whom a conditional order has been made.
The binding over of witnesses, which is a rather laborious business and is considered by the Committee to be unnecessary, and also the binding over of a prosecutor, is abolished by Clause 1, subsections (3) and (4). I have said that the old subpoena is or is to be abolished. The complication about a subpoena is, at any rate in part, that it does not always originate from the same source and there are complications which arise when one seeks to enforce the subpoena. Clause 3 provides for punishment for disobeying a witness order by way of fine, or of imprisonment up to three months.
Clause 4 is the one in which, perhaps, your Lordships may take more interest than in other provisions, because it gives a new power to arrest a reluctant witness or one who is likely to disappear. Curiously enough, the magistrates already have this power, but the judges of the High Court have not. It is obviously right, if there are no other objections, that there should be the same power in both places. Moreover, the Committee thought that nowadays there has been a large increase in serious crimes where vast amounts of money are not only involved but are in the hands of gangs who have the wealth to induce, or seek to induce, witnesses to leave the country. For those two reasons I recommend your Lordships to accept Clause 4.
The other clauses are not of particular interest. Clause 5 is supplementary to Clause 4. Clause 6 deals with cases where trial is transferred from one court to another. Clause 7 applies the same procedure to coroner's courts: that is to say, the witness summons and the witness order will be applicable there as in other courts. Clause 8 is concerned largely with the repeal of Statutes, many of them ancient Statutes, containing references to the binding over of witnesses and the binding over of a prosecutor. One may wonder perhaps why it is not necessary to secure the attendance of the prosecutor at the trial. I think the answer is that if there is a serious case which the prosecutor drops and lets the defaulter, if he is one, get away, the Director of Public Prosecutions will take it up.
Moved, That the Bill be now read 2a.—(Lord Hodson.)
7.37 p.m.
LORD BOWLES: My Lords, I am glad to extend a welcome to this Bill on behalf of Her Majesty's Government. As the noble and learned Lord, Lord Hodson, has already explained, it is based on the Sixth Report of the Criminal Law Revision Committee and the reasons for it are fully argued in that Report. It is only a fortnight since, on the Motion of the noble Lord, Lord Denham, the House gave a Second Reading to a Criminal Justice Bill which derived from the Committee's Fifth Report. Tributes were paid then to the patient and thorough work done by this distinguished Committee, which sits under the chairmanship of Lord Justice Sellers, and I am sure that the House will wish to express its appreciation once again of the valuable contribution which the Committee is making to the process of law reform.
The present procedure for compelling the attendance of a witness at a trial at Assizes or quarter sessions is complicated and in parts anomalous and obscure. The Committee found that, in spite of this, the system still worked quite well, but they were in no doubt that it was cumbersome and out of date and ought to be replaced by a simpler and more uniform procedure.
Our system of justice depends on the oral evidence of witnesses given in open court, and it is desirable that the procedure for securing that evidence should be as direct and effective as possible. The Bill will provide such a procedure and has many obvious advantages over the present system. In place of the unnecessarily elaborate business of binding over, there will be a simple order made by the examining justices. In place of the subpoena, the law on which has long been clouded in obscurity, there will be a witness summons with clear-cut statutory provisions for its service and enforcement. There will be new power to secure the attendance of a person who has failed to comply with a witness order or witness summons, as the case may be, and a uniform procedure for the punishment of disobedience, which applies irrespective of whether the witness was ordered to attend by the magistrates or by a higher court.

87
I was interested to hear the noble and learned Lord, Lord Hodson, say, when he came to examine Clause 4, which he correctly regarded as the one that might raise controversy, that he felt on the whole that Lord Justice Sellers's Committee came to the right conclusion. I think I need not say any more at this stage, because if any Amendment is put down on Committee stage I am sure that the noble and learned Lord, Lord Hodson, and I, with the power and authority of the Sellers Report, will be able to deal with the matter. The Committee, after a great deal of careful consideration—because it is a controversial matter as to whether a High Court Judge should have the right to order the attendance of somebody who may, in the Judge's opinion, fail to attend as a witness—came down in favour of Clause 4 as it is now drafted, and so did the other place.
The occasions on which a witness fails to appear without good reason are fortunately rare and more often than not are due to idleness or carelessness rather than to any wilful intention to avoid giving evidence. The noble and learned Lord, Lord Hodson, referred to something which is very much in our minds. More and more as time goes by, large sums of money in the hands of gangs enable them more easily to spirit valuable witnesses out of the country and in other ways tempt them to disobey a witness summons or order. It may be that this does not happen very often, but it does happen sometimes that a witness avoids attendance quite deliberately, and this may have a serious effect on the course of justice.
In these circumstances it seems desirable that there should be, and should be seen to be, adequate means for preventing defaults of this kind and, where they occur, for punishing the defaulter. The Committee found that the present law was not always effective for this purpose and their proposals will substantially strengthen the law in this respect. In general, the Committee have devised a consistent and coherent procedure which will enable the machinery of justice to run more smoothly, and I hope that by giving this Bill a Second Reading to-night, the House will agree
88
to this further step towards the modernisation of our criminal procedures.
LORD HODSON: My Lords, may I thank the noble Lord for what he has said and associate myself with him in expressing the appreciation, which I am sure all your Lordships feel, of the work which has been done by the Sellers Committee.
On Question, Bill read 2a, and committed to a Committee of the Whole House.

PATENTS (EMPLOYEES' INVENTIONS) BILL [H.L.]
7.45 p.m.
Bill read 3a(according to Order).
Clause 1:
Rights in inventions made by employees
(3) In the determination of any dispute as to the allocation of benefit under this section regard shall be had—
as well as to any other relevant circumstances.
LORD CAWLEY LORD CAWLEY moved, in subsection (3), after paragraph (c), to insert
"(d) to any expenditure in connection with registration, maintenance or enforcement of any patent for the invention and corresponding patents in other countries,"
The noble Lord said: My Lords, I put down this Amendment for the sole reason that the noble Lord, Lord Rhodes, said on Report stage that he would give the matter further attention. I think I need say little, but I want to say two things. It was suggested that this Amendment was unnecessary because, as the noble Lord said, the normal rules about expenditure in protecting trust property will apply and therefore we need not put in anything about the expenditure on the enforcement of patents for an invention and corresponding patents in other countries. I am not a Chancery lawyer, but I have grave doubts as to whether that would apply. I have no doubt the noble Lord has made investigations on that point.
The second point the noble Lord raised was that since an application under Section 56 would most likely come fairly early in the life of a patent, one would have no idea how much could be expended on these various objectives in

89
future and there would be some confusion. But I think it is far more likely that an application under Section 56 on the part of an employee would come late in the life of a patent, for this reason: that an invention might show no chance of succeeding in the first few years, and during that time, in all probability, the employee would show little interest in his invention. However, when the employer has made a great success of the patent, he is likely to say, "Why can't I have my cut out of the invention?" And rightly so. I think that the idea that these expenses are likely to come after the hearing of an application under Section 56 may be exaggerated. In my submission, they are equally likely, or more likely, to come before the application. I do not think that I need say more on this point, but I shall be pleased to hear what the noble Lord has to say about it. I beg to move.
Amendment moved—
Page 2, line, at end insert the said paragraph—(Lord Cawley.)
THE PARLIAMENTARY SECRETARY, BOARD OF TRADE (LORD RHODES): My Lords, I did promise to give this matter further consideration on Report stage. The Amendment is the same as that which was moved by the noble Lord on that occasion. It deals with the question whether the expenditure incurred in maintaining and enforcing patents should be included in the list of considerations. The scheme of the Bill is that the function of the tribunal (the court or the Comptroller of Patents) should be limited to determining what share of the benefit of the invention should be enjoyed by each party. Expenditure incurred in maintaining and enforcing patents is not relevant to this decision. It would become a matter to be taken into account only if the Bill were to be changed so as to provide for the tribunal's going further than simply laying down the share each party is to enjoy and actually translating that just share into a monetary reward. As I pointed out at the Report stage, the trust relationship which the Bill creates arises when the invention is made, and this will ensure that, when it comes to translating just shares into cash payments, all expenditure properly incurred in protecting the trust property—normally, the invention—will be deducted before dis-
90
tributing the net benefit. I think that is common sense. I cannot therefore accept the Amendment, but in discussion of the next Amendment I can, perhaps, offer some concession on the subject.
LORD CAWLEY: My Lords, I thank the noble Lord for what he has said. I realise that this is not an important Amendment. The next one is much more important. I beg leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
7.50 p.m.
LORD DRUMALBYN LORD DRUMALBYN moved to add to the clause:
"( ) Effect may be given to the foregoing subsections of this section by directing that the benefit of the invention and of any patent therefor shall belong to the employer and the employee in specified shares, or by apportioning the interest in or benefit derivable from the said invention and of any patent therefor in any other way that the court or comptroller may deem appropriate in the circumstances of the case."
The noble Lord said: My Lords, this Amendment is identical with the Amendment moved on Report but for the last sentence, and is not very different from the one moved by the noble and learned Lord, Lord Wilberforce, in Committee, except that it is in more general terms. I do not think I need argue the merits of the Amendment. All I need say at this stage is that, in his reply on the Report stage, the noble Lord, Lord Rhodes, seemed to us to deal only with the first part of the Amendment. We have cut out the third part, and that leaves the second part. The first part deals with apportionment in specified shares, and there the noble Lord said that the first part of the Amendment added nothing to the Bill. But the point of the Amendment was to bring out the fact that apportionment in specified shares might not be the only way, and, indeed, not always the most appropriate way, in which to divide the benefit of the invention or any patent therefrom. We have put down this Amendment in order to give the noble Lord another opportunity of expressing a view on this matter and also to give the House an opportunity of considering it. I will not say more about it at this stage, but will listen to what the noble Lord has to say. I beg to move.
Amendment moved—
Page 2, line 14, at end insert the said subsection.—(Lord Drumalbyn.)
LORD CAWLEY: My Lords, I rise to support my noble friend on this Amendment, and I think I ought to say something in general about this Bill. It has, in my view, been considerably improved in passing through this House, but I still think it is a lawyers' feast, and it will benefit our profession considerably. I will not bore your Lordships with a list of reasons why, but there will be enormous complications in administering the provisions of the Bill. All I would say now is that I support my noble friend on this Amendment.
LORD RHODES: My Lords, I think the noble Lord, Lord Drumalbyn, made a fair comment about the accent that I put on this matter on the Report stage. While it omits the last sentence, nevertheless, it is the same matter that we dealt with on that occasion and deals with ways of apportioning the benefit. It was, we were told on the Report stage, intended to enable the tribunal to provide for the grant of shop rights—that is to say, in a case in which the legal title of the invention was owned by the employee, a grant to his employer of a royalty-free licence to use the invention in his business. As I have said several times before, the intention of the Bill is that the tribunal shall simply lay down the share to which each is entitled, and it would not, therefore, be appropriate, as the Bill is at present drafted, to provide for awards of this sort. There is, in any case, a difficulty about the tribunal awarding shop rights: for example, if the employer is given a shop right it could conflict with an exclusive licence previously given by the employee to some third party. It would, therefore, be necessary, in any case, to make it clear that the tribunal's power to award a shop right is limited to cases in which such an award would not conflict with the rights, of third parties bona fide acquired.
It is therefore in my view likely that once the just shares have been agreed or determined, the parties will come to contractual arrangements of this sort. It might well happen in the not unusual case where the employee thinks more highly of the invention than does his employer. I can envisage cases of the employer agreeing to the employee having all rights
92
in the invention, subject only to the grant of a shop right to himself. But we have doubts whether the Bill should make provision for the tribunal to impose such an arrangement. We have considered the sort of Amendment that would be necessary. It would be a fairly radical one. We think that the Amendment should provide that the tribunal (the Court or the Comptroller) may in a suitable case deal with the matter by way of awarding a lump sum or the grant of an appropriate licence. We think it will be necessary to provide that shop rights may be granted only in a case in which such a course will not infringe rights already given to a third party or third parties. No doubt drafting will raise other points.
However, having listened attentively to what has been said, and thinking round this in between the Report stage and now, I can undertake that an Amendment will be moved in another place allowing the tribunal to award single lump-sum payments, or in appropriate cases, shop rights, and to consider the aptness of the considerations already set out in the Bill having regard to this change. I hope that this is satisfactory to the noble Lord.
LORD DRUMALBYN: My Lords, I am sure my noble friend Lord Cawley shares with me gratitude to the noble Lord for the consideration he has given to this matter. He has gone a long way to meet the case that we were making. We were trying to gather up into one sentence all the possible ways in which the interest in or the benefit resulting from the invention or the patent might be apportioned. The noble Lord, if I understand him rightly, has limited the way in which apportionment can be made to the specified shares as at present, to a lump sum and to shop rights. In each case, of course, it would have to be an appropriate case; I do not think there is anything between us there.
The noble and learned Lord, Lord Wilberforce, referred, also, to the possibility of royalties. The noble Lord, Lord Rhodes, has not mentioned that possibility. I take it that he has found some difficulty there to which he has not referred in replying. I do not know whether, at this late hour, he would think it worth while going into any detail on this point. I would say, frankly, that I should sympathise with him if he felt

93
that it was not necessary, because, after all, there is another place for the consideration of this matter, and the fact that the noble Lord has undertaken that an Amendment will be put down in another place will certainly give an opportunity for exploring it further. Therefore, subject to what my noble friend may wish to say about it, I feel that there is no point in pressing this any further.
Like my noble friend Lord Cawley, I would express my appreciation of the consideration that has been given in a difficult field. My noble friend can tread with a sure step in this field where the noble Lord opposite and I go rather delicately. Nevertheless, I hope that, between us, we have managed to bring out some important matters and to improve this Bill. Once again, I would say "Thank you" to the noble Lord for the consideration he has now given. I felt (he will not mind my saying this) that perhaps he had given a little scant consideration before the last stage, but he has certainly rectified this now, and we are grateful to him. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
LORD RHODES: My Lords, I beg to move that this Bill do now pass. I will do so quite briefly, because the hour is late. I should like to thank noble Lords in all parts of the House for their cooperative and constructive criticism. I think it is a better Bill now than when we first introduced it. We have listened carefully to the views expressed on the question of inserting in the Bill some criteria for the guidance of both the tribunal and the parties themselves in determining what is a just share. We followed this up by inserting during the Report stage what appeared to be the most relevant factors to be taken into account. Finally, I have to-day undertaken that an Amendment will be moved in another place to take into account what has been said in to-day's debate. I much appreciate all the helpful comments that have been made, and all that remains for me to do is to move that this Bill do now pass.
Moved, That the Bill do now pass.—(Lord Rhodes.)
On Question, Bill passed, and sent to the Commons.

CONTROL OF OFFICE AND INDUSTRIAL DEVELOPMENT BILL
8.2 p.m.
Order of the Day for the Third Reading read.
THE LORD CHANCELLOR: My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Control of Office and Industrial Development Bill, has consented to place her interest, so far as it is concerned on behalf of the Crown, at the disposal of Parliament for the purposes of the Bill.
LORD RHODES: My Lords, I beg to move that this Bill be now read a third time.
Moved, That the Bill be now read 3a—(Lord Rhodes.)
On Question, Bill read 3a, with the Amendments.
Clause 3 [Retrospective control in metropolitan region]:
LORD RHODES: My Lords, this is a short and purely drafting Amendment, designed to correct a slight discrepancy between three closely allied provisions in the Bill. They are: Clause 3(2), which provides for the retrospective control of office development in Greater London, Clause 9(1), which provides for enforcement of the retrospective control, and paragraph 1 of Schedule 1, which provides grounds of appeal against enforcement notices under Clause 9. In each case our intention is to cover development which either consists of or includes the erection on land in Greater London of a building containing office premises, or consists of or includes the extension of a building on land in Greater London by the addition of office premises. The Amendment is in line with the other Amendment that I shall move in a moment, to paragraph 1 of Schedule 1, bringing the drafting precisely into line with this intention. Neither Amendment makes any change of substance in the provisions of the Bill. I beg to move.
Amendment moved—
Page 4, line 42, leave out ("for") and insert ("consisting of or including".—(Lord Rhodes.)
LORD DRUMALBYN: My Lords, may I ask a question about this, as it affects buildings which were perhaps already in course of erection, or extensions that were already in course of erection, or extensions that were in the course of being made? I am bound to confess that I had not myself appreciated so far that extensions being made were hit in the same way, or that office premises (and this, I take it, is also the purpose of the Amendment) located in buildings which may consist mainly, say, of flats, or partly of shops and partly of offices and partly of flats, were also affected. This would seem to be a curious use of the powers, because it is carrying the use of the powers into a mixed field.
LORD RHODES: My Lords, may I set the noble Lord right so that we do not stray too much on this point? His argument is really directed to the third Amendment, if I may say so. The first two are merely drafting.
LORD DRUMALBYN: Would it be convenient for me to continue my argument on this point now, if the Amendments are linked, or shall I wait until the third Amendment is moved?
LORD RHODES: The noble Lord may as well carry on now.
LORD DRUMALBYN: If it is for the convenience of the House, I think it will be easier to get an explanation of the matter. As I say, this is carrying the use of the powers into a mixed field. If I recollect accurately, where the mixture is office accommodation and industrial accommodation, a concession has been made. I find it difficult to see why the same kind of concession should not have been made in the case of a mixed field of office and, say, domestic building, or offices and shops.
I do not know how this will work out. It would seem to be possible, at any rate, that the effect might be to arrest the building of residential accommodation with which offices were linked, and that the whole of the operation may stop. I quite appreciate that the offices themselves might perhaps be redesigned into residential accommodation. Nevertheless, it is quite possible that the whole operation would be arrested, or at any rate delayed for a time; and, of course,
96
if this Amendment is more than simply a verbal change it may be that it will have a further retrospective effect. It would perhaps cause a good deal of trouble to those who were engaged on mixed development. So far, they may have thought that they were not within the scope of the ban which was put on, carrying on with plans that were already in existence where the contract was not already signed.
I am not sure about this Amendment. I was not clear as to its purport when I saw it on the Order Paper. Personally, I thought it was purely a verbal Amendment. But it seems to me that there is a possibility that it goes further than that, and I should be grateful if the noble Lord could enlighten me.
LORD RHODES: My Lords, I can assure the noble Lord that it does not go any further than that, and that it is purely a slight drafting correction. If we may take the first Amendment now, I will explain to the noble Lord on the second Amendment what he wants to know.
On Question, Amendment agreed to.
Clause 5 [Mixed industrial and office development]:
LORD RHODES: My Lords, this Amendment gives me an opportunity to answer the noble Lord. As he knows, the main purpose of Clause 5 is to exempt from the retrospective control of office development in Greater London mixed industrial and office development, for which both an I.D.C. and planning permission were granted before November 5, 1964. Subsection (2) defines the scope of this exemption too narrowly, because it covers only the erection of new buildings containing industrial and office space: hence this small correction. We had intended that the exemption should also apply to extensions of buildings containing industrial and office space, and that is the effect of our Amendment. We feel that this will remove a number of anxieties. I beg to move.
Amendment moved—
Page 6, line 35, after ("premises") insert ("or consisting of or including the extension of a building on land in Greater London by the addition of office premises together with other premises").—(Lord Rhodes.)
LORD DRUMALBYN: My Lords, I am much obliged to the noble Lord for his explanation of this matter. As he said, this puts right what appears to have been an omission at an earlier stage which nobody had spotted.
On Question, Amendment agreed to.
Schedule 1 [Special grounds of appeal against enforcement notices under section 9]:
LORD RHODES: My Lords, this is the most slender of all the Amendments. It is the second of the two drafting Amendments which are required to correct the slight discrepancy between the drafting of Clause 3(2), Clause 9(1) and paragraph 1 of Schedule 1. I beg to move.
Amendment moved—
Page 26, line 7, leave out second ("of").(Lord Rhodes.)
On Question, Amendment agreed to.
8.10 p.m.
LORD RHODES: My Lords, in moving that this Bill do now pass I do not propose to detain your Lordships for more than a few minutes. There are only a few points that I would make. This Bill received a Second and Third Reading in another place, and a Second Reading in this House, without a Division. That speaks for itself. No one has disputed the serious implications of the rate of growth of office employment in and around London, both for London itself and for the rest of the country. No one has disputed the case for taking powers in this Bill to grapple with this problem—with the notable exception of the noble Lord, Lord Erroll of Hale, who seems to be alone in his belief that the problem which this Bill is designed to tackle had already been solved by the previous Government. However, I will not pursue that theme, as the noble Lord is not here. We are, however, encouraged by the fact that some noble Lords opposite have welcomed the Bill in positive terms and urged us to administer it with firmness.
Our discussions in Committee and on Report have been directed to two main purposes. In the first place, we have been pressed, and quite rightly so, to explain the policy underlying the Bill, particularly in regard to the new control
98
of office development, to make clear its comprehensive scope and to indicate how the control will be administered by the Board of Trade. On these wider issues we have been unable to be so accommodating in accepting Amendments as some noble Lords opposite would have wished, because to have accepted some of them would have had the effect of weakening the control and limiting its scope. On the other hand, we fully appreciate the importance of the points which have been raised concerning the extent of the new powers and the way in which they will be used. We have tried on all these matters to lessen the anxieties of noble Lords opposite, and we have welcomed the opportunity to clarify the Government's intentions.
We have listened with particular interest to the arguments put forward by the noble Lords opposite, Lord Erroll of Hale and Lord Drumalbyn, for exempting from the offices control certain types of offices which are required by industry. We know that they still have reservations on this aspect of the control, but we are in no doubt at all that to attempt to distinguish in the Bill between types of offices which were to be controlled and other kinds of offices which were not to be controlled would seriously weaken our powers to deal with the office problem and make the administration and enforcement of the control more difficult. Finally, I wish to express my personal gratitude to your Lordships for your assistance in enabling me and my noble friends, Lord Mitchison and Lord Champion, to conduct this Bill through this House. It only remains for me to move that this Bill do now pass.
Moved, That the Bill do now pass.—(Lord Rhodes.)
LORD DRUMALBYN: My Lords, in dealing with this Bill I think it is true to say we all recognise that there is a serious problem. It is also fair to say that when my noble friend Lord Erroll of Hale said that the problem had already been solved, what he meant was that steps had been taken which would result in the solution of the problem. He did not mean literally that the problem was already solved, and I am sure the noble Lord, Lord Rhodes appreciated that at the time. What I think we on this side of the House feel is that the Government had not thought out the implications of the Bill or the way in

99
which the powers in it were to be exercised before they introduced it. We do not think they have fully thought them out yet. We believe they still do not know.
By this Bill the Government are treating an admittedly serious disease with a remedy which has been evolved for quite a different disease—the remedy evolved to treat distribution of industry. If the remedy works the Government will be extremely lucky. They will also be extremely fortunate in what one might term the nurses of the Board of Trade, who will have to treat the disease with only the most vague and summary directions from the doctors on the Front Bench opposite. What has to be recognised is that in the course of this the patient is certainly going to suffer considerably and his last state may well be worse than his present condition.
My Lords, we have not thought fit to oppose the Government in this Bill on the Second Reading on the matter of principle, because this was a matter within their decision. Our view had been, and still is, that the difficulties could have been solved in a different way. We sympathise entirely with the desire of the Government to be fully informed of what is going on in the matter of office construction. They should be fully informed through reports from the planning authorities. We sympathise also with their wish to be able to get more offices to move out of London. We believe that in setting up the Location of Offices Bureau we started a process which could have been increased and a great deal more effort could have been put into it, more influence could have been exercised by the Board and its activities could have been enhanced. All that could have been done. But, my Lords, instead the Government have chosen to use powers which, instead of encouraging, are going to force offices out of London, and it may well be that in the course of doing that they will force some of the wrong offices out of London and will prevent and deter some of the right offices from coming to London, including, it may be, international organisations.
The one thing that we deplore about this Bill is that in so far as it is dealing with office accommodation it is entirely negative. Under the distribution of in-
100
dustry powers under the local employment Acts there are inducements. How far these inducements are to apply to the building of office accommodation in development districts is not clear. It may be that it does apply in the case of offices which are built by those who are going to use them. It may be that in those cases building grants may be available. I have looked up the Act and I am not clear of the interpretation of it in that regard. But it certainly seems much less likely that those offices which are built speculatively would come under the Act, and one has to bear in mind that most offices are built speculatively, and this is the very great difference between the administration of the control of office location and the control of factory location.
We would indicate in passing this Bill our grave misgivings for the future. What has taken place so often in the past is that you impose a control; in order to make it effective you have to close loopholes and extend the control further and further. This Bill is going to exercise a very severe control which will affect quite small offices. It may be that the Bill will have the effect that the Government desire. On the other hand, we believe that the results could have been obtained very much more easily and with very much less trouble. We believe this is going to be an exceedingly difficult Bill to administer. It will have a great deal of growing pains. In all probability the Government are going to come back in a very short time for clarification and extension of the Bill. For all these reasons we feel it is not a good Bill, and while we hope it will be successful in achieving some of the results which it seeks to achieve in preventing the drift to the South, and particularly the effects of overcrowding in London, we feel that we must express our serious misgivings on the Bill and our belief that before a Bill of this kind was brought in its implications and the methods of implementing it should have been much more carefully thought out.
8.23 p.m.
LORD MITCHISON: My Lords, since I have been sitting here all day to answer a question which has not been asked, may I permit myself the luxury of a few words at the end of the debate? I have

101
just listened to a speech made on behalf of a Party which has not divided against this Bill either in another place or here. Is that perhaps because it did not have the courage to do so, knowing full well that for thirteen years they had seen this problem grow and had done nothing whatever to meet it? We had to-day a welcome to a Bill—or, was it a welcome?—at any rate, words about a Bill which showed, I think admirably, the preference which the Party opposite invariably give to their own Party above the interests of the country. They recognise somewhat grudgingly that at the moment this is an urgent problem. They must know it has been growing during those thirteen years and nothing whatever has been done about it.
What interested me in listening to-day was to pick up the reasons that induced
102
the Party opposite to do nothing. They were afraid there would be interference in some form or other with business. They preferred that there should be no interference and that the mass of people in London should suffer and not have places to live in and that offices needed in other parts of the country should be directed to London. They preferred that to happen rather than that any form of control should be exercised. A more prejudiced, a more grudging, a more unpatriotic and a more unhelpful speech I have never heard in respect of a Bill against which no one had the courage to divide.
On Question, Bill passed, and returned to the Commons.
House adjourned at twenty-five minutes past eight o'clock.