§ 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,saidit 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: 38Provided 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.