§ 3.40 p.m.
§ Order of the Day for the House to be put into Committee read.
§ Moved, That the House do now resolve itself into Committee.—(Lord Lindgren.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD MERTHYR in the Chair.]
§ Clause 1:
§ Certain acts not actionable in tort or as delicts.1906 c. 47
§ 1.—(1) An act done after the passing of this Act by a person in contemplation or furtherance of a trade dispute (within the meaning of the Trade Disputes Act 1906) shall not be actionable in tort on the ground only that it consists in his threatening—
- (a) that a contract of employment (whether one to which he is a party or not) will be broken, or
- (b) that he will induce another to break a contract of employment to which that other is a party;
§ (2) An act done as aforesaid by a person before the passing of this Act shall not be actionable in tort as mentioned in the foregoing subsection unless proceedings in respect thereof have been instituted either before or within the period of six months beginning with the date of the passing of this Act or be capable of giving rise to an action of reparation as so mentioned unless proceedings in respect thereof have been so instituted.
VISCOUNT DILHORNE moved at the beginning of the clause to insert:
( ) This Act shall not apply if it is shown that a threat of the character specified in the next following subsection was made to secure the termination of the employment of any person.
§ The noble and learned Viscount said: I beg to move the Amendment standing in my name. I think that it would probably be to the convenience of the Committee, subject to the agreement of my noble friends, for discussion to take place now upon the Amendments in the names of the noble Lords, Lord Henley and Lord Wade, and my noble friend Lord Conesford. The other two Amendments in my name are purely consequential. I do not think that the same could be said for the second Amendment in the name of my noble friend Lord Conesford, but I apprehend that it would 624 be convenient to the Committee to have one discussion upon all the Amendments to which I have referred. In moving my Amendment, I do not propose to say anything about the other Amendments, although it is the case that the subject matter is the same.
In commending the Amendment in my name to your Lordships, I would remind your Lordships of the case put forward by the noble Lord, Lord Lindgren, and the noble and learned Lord the Lord Chancellor, speaking on behalf of the Government, in support of the Bill. I do not propose to read all that they said on Second Reading—even if invited to do so by the noble Lord, Lord Byers—but I shall endeavour to summarise its effect and to do so fairly and accurately. As I see it, the main theme of their speeches was that the decision of your Lordships' House in Rookesv.Barnard had created such uncertainty in the minds of trade unionists as to what they could or could not lawfully do, that the position could not be left until the Report of the Royal Commission but must be clarified without delay. If I may, I would quote one or two passages. The noble Lord, Lord Lindgren, said:
…no one could really say how far its "—
that is, the Rookesv.Barnard decision's—
repercussions might extend".—[OFFICIAL REPORT, Vol. 267 (No. 85), col. 18, June 15, 1965.]
A little later he said:
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." [Col. 19.]
Further on he said:
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." [Col. 19.]
The noble and learned Lord, the Lord Chancellor, said:
The difficulty of Rookesv.Barnard has been that nobody quite knows what it was that it decided." [Col. 77.]
I do not agree with that. I do not think that there is any difficulty in knowing what that case decided. But I am prepared to agree that there is room for argument and for differences of opinion as to the extent of the repercussions of that decision. I myself think that they have been greatly exaggerated. I do not think it is the case that since the decision in January, 1964, in
Rookesv.Barnard the activities of trade unions and their members have been in any way inhibited. In fact, if they had been no doubt the noble Lord, Lord Lindgren, would have told us of a case or cases where trade union officials or members wanted to take some action and did not do so because of this decision. He has not done so and I conclude that he cannot do so. Threats of strike action and unofficial strikes seem to occur with just as much, even more, frequency, since January, 1964.
If there are differences of opinion as to the effect of Rookesv.Barnard on trade union activities—though not, I think, as to what the case actually decided—a case can be made for making it clear that the decision does not inhibit trade unions (to quote the noble Lord) "in their normal day-to-day activities". What are their normal day-to-day activities? Surely to deal with wage questions, piece rates, hours of work and other problems which arise in industrial relations, like questions of redundancy. Surely it is not part of the normal day-to-day activities of trade unions to seek to secure by intimidation the dismissal of a man from his employment, either because he has been expelled from his union or because he does not wish to be a member of a union. I hope that that, which can properly be called victimisation, is not part of the normal day-to-day activities of trade unions. I find support for this view in the statement of the noble Lord, Lord Lindgren, on Second Reading when he said that the closed shop issue
gives rise to only a fraction of the disputes that occur ". [Col. 21.]
§ I ask the noble Lord, Lord Lindgren, this question. It is one, which I think is a fair question, to which he or the noble and learned Lord the Lord Chancellor, if he is going to reply to this debate, should give a definite and clear answer. Does he regard the intimidation of employers to secure the dismissal of an employee or workman part of the normal day-to-day activities of trade unions? If he does not, it follows that this Amendment, if carried, will not defeat the main purpose of this Bill—namely, to resolve whatever doubts there may be about what the trade unions can do in their normal day-to-day activities. It will be clear that they can conduct their ordinary, normal activities with impunity.626
On the other hand, if he says that he does regard intimidation with that object—to secure the dismissal of a workman—as part of the normal day-to-day activities of trade unions, then I think that we should still press this Amendment, to ensure that individuals are not victimised in this way by trade unions. I would like to remind your Lordships of something that the Minister of Labour said in moving the Second Reading of this Bill. It was quoted on Second Reading by the noble Lord, Lord Wade, and I hope that the noble Lord and your Lordships will forgive me if I quote it again. The Minister of Labour said:
Rookesv.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."—[OFFICIAL REPORT, Commons, Vol. 706 (No. 58), col. 1019, February 16, 1965.]
So we have it on the authority of the Minister of Labour that trade unions ought to be above victimisation of this kind. The Amendment which I am moving gives effect to that view, for the effect of the Amendment is that victimisation of the kind that took place in the Rookesv.Barnard case will still continue to be unlawful. If this Amendment is resisted, we have the curious situation that the Minister of Labour who says that trade unions ought to be above victimisation of this kind, is seeking statutory authority to enable them to engage in it.
On Second Reading my noble friend Lord Conesford drew attention to Article 20 of the Universal Declaration of Human Rights, approved by the General Assembly of the United Nations in 1948 and supported by this country. That Article reads:
No-one may be compelled to belong to an association.
This Government, who always seek to represent that they are wholehearted and enthusiastic supporters of the United Nations, and who, indeed, think there is nothing wrong in this country's taking part in discussions on matters which the
Government regard as clearly outside the purview of the United Nations and contrary to the Charter, if they now oppose this Amendment will make it clear that they only pay lip service to this Declaration. For if this Amendment is not carried, the Government, unnecessarily and of their own volition, will be making it lawful to compel, by intimidation, someone to join a trade union.
The argument has been advanced that we should put the law back to what it was thought to be before the Rookesv.Barnarddecision in 1964. If this Amendment is carried, it can be said that we are doing that. We shall be making it clear that the normal day-to-day activities of trade unions remain unaffected. That always was the case. As Mr. Citrine said in his book, if I may remind your Lordships, and his father, of the passage:
If there is some ground of action other than the mere fact of interfering with contractual relations, the section"—
and it is Section 3 of the 1906 Act—
does not afford protection.
What was new, or at least novel, to many people about the decision in Rookesv.Barnardwas not its interpretation of Section 3 of the Trade Dispute Act, 1906, but the decision that the tort of intimidation would be committed if there were threats to break contracts, made to induce the employer to do an act to the injury of one of his workmen. If this Amendment is not accepted, then the effect is to enlarge the protection which trade unions have enjoyed since 1906, at the expense of the individual, and to deprive individuals of the right to compensation for the loss they suffer as a result of tortious acts on the part of those taking part in trade disputes.
§ Surely it is not necessary to go so far as that now, before the Royal Commission has reported. Surely, at the most, all that is required is that it should be made clear that the decision in Rookesv.Barnard in no way inhibits the normal day-to-day activities of trade unions. if this Amendment is carried, it will also be clear—and I think it is right that it should be clear—that if trade union members or officials, who ought to be above victimisation of this kind, according to the Minister of Labour, engage in 628 tortious victimisation by intimidation of a fellow employee, the wronged employee will still be entitled to compensation for the loss he has suffered. I beg to move.
Page 1, line 5, at beginning insert the said subsection.—(Viscount Dilhorne.)
§ LORD LINDGREN
May I rise on a question of procedure and the convenience of the Committee? The noble and learned Viscount suggested that we should take Amendments Nos. 1 to 5 together. I think there are two different issues, and if it meets with his approval and that of the Committee I suggest that we take Nos. 1, 2 and 5 together, and then Nos. 3 and 4, which are not legal points and which raise a different issue.
§ VISCOUNT DILHORNE
I find it a little difficult to follow the noble Lord, because my Amendments are not numbered. I have now been handed a different Marshalled List of Amendments. So far as I am concerned, my second Amendment is purely a drafting Amendment. Which Amendments is it that the noble Lord suggests we discuss?
§ VISCOUNT DILHORNE
I am entirely in the hands of your Lordships. I have moved only my Amendment. However, I thought that the area to be covered by Amendments Nos. 3 and 4 was very much the same as the area to be covered by the Amendment in my name. I should have thought that it would be for the convenience of the Committee to have a discussion on the three Amendments, and then we can have a Division, unless the Government are reasonable, on my Amendment at the end of that discussion.
§ LORD LINDGREN
As I have said, I am not a lawyer but only a trade unionist, and to me the two points are different. However, if it is convenient to the Committee, I am only too happy to join in.
§ VISCOUNT DILHORNE
So far as I am concerned, it makes no difference to me. I am only moving, and have only spoken to, the first Amendment. Perhaps we ought to find out what the noble Lords who have tabled other Amendments wish.
§ 3.57 p.m.
§ LORD CONESFORD
May I suggest to the noble Lord that he should answer the question whether he would like to take all the main Amendments together or to have the separation that the Minister suggested? It would probably be convenient to all parties to decide that first.
§ LORD WADE
With respect, I should have thought that it would be convenient to refer to Amendments 3 and 4 in this discussion on the first Amendment. However, it is as the Committee wishes. I feel that it would be a little difficult not to refer to those Amendments. If I may make a few brief comments now, perhaps we can see how we go on.
§ LORD CONESFORD
I should like to say that that is perfectly agreeable to me. If I may say so, my own guess had been the same as the Minister's, but I think it would be necessary both for the noble Lord, Lord Wade, and for myself to say something on the Amendment that has just been moved, and it would probably be to the convenience of the Committee if we take the three Amendments together.
§ LORD WADE
I hope that will prove helpful to the Committee. I would say, at the outset, that I have some hesitation in taking part, as I may not be present for the whole of this afternoon. I therefore apologise in advance if I am not here at the conclusion of the debate. My noble friend Lord Henley will, at the appropriate time, move the Amendment in his and my names, and I am hoping that my noble friend Lord McNair will take part in the debate.
Although the words "closed shop" are not mentioned, either in the Bill or in the Amendment, "closed shop" is very much in the minds of those who have introduced this Bill and those who have tabled these Amendments. I wonder whether I may make one general point, commenting on some remarks of the noble and learned Lord the Lord Chancellor on Second Reading. He said that it depends very much on where one stands in this matter; and, of course, I agree with him. There are those mem 630 bers of trade unions who say, "Why should non-members reap the advantages that have been earned by the efforts of trade unionists?" I know that is said; I have often heard it said. But I think it is a little unfair to trade unionism to use that argument. The trade union movement came into being to help members and fellow-workers generally to raise their standards at a time when the standards were very low. I do not think it was intended to benefit solely those who were members of a particular union. I always feel that it is not entirely fair to the movement as a whole to suggest that trade unionists want to benefit only those who are actually members of their union. That is a general point.
Now, turning to the Bill and the Amendment, the argument for the Bill is to restore the law to what it was thought to be before the decision in Rookesv.Barnard. I must say that after studying the decision in Rookesv.Barnard there is considerable doubt as to what the law was before that case came before the court, and greater doubt as to the effect of the decision in that case. Certainly the subject is very complex, and there is something to be said for waiting until the Royal Commission reports before introducing any legislation at all. In my opinion—and I expressed this on the Second Reading—the only reason for introducing legislation is that some officials of trade unions may feel that they are in jeopardy in carrying on their ordinary duties. It is for that reason only, and in order to clarify the law, that any legislation at all should be introduced.
It has been suggested that the introduction of this Bill was necessary as a condition to satisfy the trade union leaders, the T.U.C., before they would agree to take any part in the proceedings of the Royal Commission. I think that is unfair and I hope it is not correct. I am sure that there are prominent members of the T.U.C., and of leading trade unions, who are willing that the Royal Commission should study this very complex subject. I should not like to think that this Bill is introduced solely as part of a bargain. As I have said, the best justification for the Bill is that there is need for some clarification for the benefit of trade union officials doing their ordinary duty. But if that is so, 631 I think we must try to be as fair as possible, both to individual officials and to independent third parties. That is the reason for the Liberal Amendment.
I am not entirely happy with the wording of the Amendment that has been moved by the noble and learned Viscount, Lord Dilhorne. The material words of his Amendment are as follows:This Act shall not apply if it is shown that a threat of the character specified in the next following subsection was made to secure the termination of the employment of any person.I should have thought that that would be going rather too wide. Those words, "the termination of the employment of any person", could be construed very widely. At any rate, it does not cover the point contained in the Liberal Amendment, which may be moved later. In that Amendment the words are as follows: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 think that if you are going to attempt to do anything at all you must cover those three points—to become, to remain or to cease to be a member of a trade union.
I do not know whether the Amendment which has been moved by the noble and learned Viscount will be pressed to a Division. It may be that after some discussion he will prefer our Amendment to his. But if the first Amendment is pressed to a Division, and subject to anything that may be said during the debate, we are inclined to support the first Amendment. But I should like to make it clear that in our view the aim should be to try to hold the balance as fairly as possible until the Royal Commission have reported.
§ 4.5 p.m.
§ LORD CONESFORD
As the remaining Amendment is down in my name, it may perhaps be convenient to all the Committee that I should express my views now. I agree entirely with the view expressed in both the speeches that we have heard—that the reasonable aim is that we should leave as much as possible of this very difficult problem to the Royal Commission, and make the minimum change in the law in advance of the Report of the Royal Commission. I think 632 that, irrespective of our views on trade union matters, that will be thought to be reasonable, and I am sure it will be thought to be reasonable by those who have really studied the very difficult problems raised by Rookesv.Barnard
My noble and learned friend Lord Dilhorne has devised a short and neat Amendment to safeguard normal negotiations, and it certainly gives some protection against intimidation. It gives protection, for instance, against the sort of intimidation that was involved directly in Rookesv.Barnard. Like the noble Lord, Lord Wade, I, too, find it possible to support my noble and learned friend Lord Dilhorne, but I am not clear that his Amendment goes far enough. As has been pointed out, the intimidation may not be to secure the termination of the employment of any person. I quite agree that that is one of the important possibilities, and I think my noble and learned friend is quite right to try to stop it. But, of course, the intimidation may not be for the purpose of terminating the employment; it may be for the purpose of punishing the man aimed at in another way: that his employment, perhaps, should continue but under worse terms and lower wages, and there are many other matters that we can think of. Therefore, like the noble Lord, Lord Wade, T will certainly listen with the greatest interest to all points raised in the debate on both sides, but my first view is that, while the Amendment of my noble and learned friend is one that I can unhesitatingly support, it does not seem to me to afford ground for not also asking the Committee to accept one or other of the other two Amendments—that down in the name of the noble Lord, Lord Wade, the mine.
I agree with the noble Lord, Lord Lindgren, that those Amendments fall in a natural group, and I think it is the duty of the Committee to decide which of those two Amendments they prefer. I am going to give certain reasons why I hope that the noble Lords on the Liberal Benches, after considering what I am now saying, may prefer mine. I shall be particularly interested to hear, and will treat with the greatest respect, what the noble and learned Lord, Lord McNair, may think on this matter. The aim of the Liberal Amendment is clearly very much the same as the aim of my Amendment, 633 but I think mine has three advantages over the Amendment which stands in the name of the noble Lord, Lord Henley, and the noble Lord, Lord Wade.
Let me state briefly the three shortcomings of that Amendment, as I see them. First of all, it makes no mention of associations other than trade unions. I certainly do not wish any Amendment to be passed to the effect that it is any worse to try to use intimidation for the purpose of compelling a person to join a trade union rather than any other association. To take an example which I hope will never become a relevant example in this country, suppose there were an organisation such as the Hitler Youth. That would be an association for which it would be entirely improper to use intimidation to compel people to join. On the other hand, it would not be a trade union, nor should we be following the words to which I attach great importance, the words of the Universal Declaration of Human Rights, to which reference has been made. So the first advantage of my Amendment over the Liberal Amendment is that I do not confine it to trade unions, but say "a trade union or other association".
The second advantage of my Amendment is that it is not the same as anything that was put before the other place. The Liberal Amendment is in identical terms to one already considered in the other place and rejected. Let me say at once that it is not at all improper to put it down again so that it can be given further consideration in the other place after they have heard our views, but I think it is the experience of all of us that another place may be more sympathetic to an Amendment which it has not already considered in identical form and which comes to it as a new Amendment.
The third point of superiority, in my opinion, of my Amendment is that it will be seen that in the Liberal Amendment the proviso runs as follows: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".The words "the sole intention" frankly make it possible to drive a coach-and-four through the protection that the Liberal Amendment is designed to secure, because it is only necessary to couple some other intention in the -threat and the pur- 634 pose of the Liberal Amendment would be wholly defeated. For those reasons, I very much hope that the noble Lord, Lord Henley, and his noble friends, after consideration, will not press their Amendment but will agree that their purpose in putting it down would be better served by supporting mine, which has similar objects and which I believe avoids these particular objections.
I come now to my own Amendment. As the Committee knows, this is prompted by my concern for individual freedom and for the express terms of the Universal Declaration of Human Rights. It would be quite wrong for me to put myself forward as an uncritical admirer of declarations of this kind. I am not; I have criticised some of these declarations before, and shall doubtless do so again. Nor am I under the illusion that this Universal Declaration of Human Rights constitutes a treaty. But let me remind the Committee that Article 20, which has been mentioned by my noble and learned friend Lord Dilhorne, is one that expresses a principle which Her Majesty's Government have told me, in answer to my Parliamentary Question of February 23, that they accept. There is no doubt at all, therefore, that they do not wish to do something contrary to that principle.
Here is a case in which we know by a judicial decision of the highest court that in some cases intimidation designed to compel a man to belong to an association or to punish him for his refusal is an actionable wrong; that is to say, he will have a remedy if that is done. That remedy is precisely in accordance with what the Universal Declaration of Human Rights says is the principle. Can we be happy, when our law at present gives some protection to a man who is treated in a way that is inconsistent with Article 20, that we should sweep away that protection? I could mention other Articles of the Universal Declaration of Human Rights, but remembering that the principle that I think we all wish to follow is to leave as much as possible to be decided in connection with these difficult matters by the Royal Commission and to do the minimum that is required for the proper functioning of trade unions, ought we not really to try to preserve such rights as a man already has in English law when he is the victim 635 of the sort of conduct that was practised in the case of Rookes v. Barnard?
For those reasons, I support the Amendment of my noble and learned friend Lord Dilhorne. I have not heard everything that will be said during the debate, but my present intention is to support the Amendment because so far as it goes it appears to me to be right. I do not think that it covers the field sufficiently and I think something more may be necessary. Indeed, the further thing that is necessary is the principle embodied, or intended to be embodied, in the Amendment put down by the noble Lords on the Liberal Benches and mine. Of the two, for the reasons I have given, I greatly prefer my own and I hope it may commend itself also to the noble and learned Lord, Lord McNair, and his friends.
I have tried to make my view clear on all three Amendments. After we have heard the Government's point of view, it may be that all of us will wish to say something further, but I trust I have indicated broadly what my view is on all three Amendments.
§ 4.20 p.m.
§ LORD CITRINE
So far in the debate we have had the views submitted of two eminent lawyers, both of them Queen's Counsel, one of them an ex-Attorney General and ex-Lord Chancellor, and both of them pillars of the Conservative Party. We have had also the views of another lawyer who perhaps would not claim the same eminence and who was the Deputy Leader of the Liberal Party in the House of Commons, the other place that we talk so much about and do not seem to know where it is.
I want now to put the view of a trade unionist and I want to deal with the substance. I have never either wanted to be or been a Member of the other place. In that sense, of course, I have suffered some disadvantage, particularly in the art of debate, and therefore I hope allowances will be made for that point in what I am saying. It seems to me that none of the speakers brought out in relief the real point at issue here. There are six Amendments, two of them consequential and the remainder of some substance. But what are these Amendments designed to do? These Amend- 636 ments are designed to thwart the will of the House of Commons. None of these Amendments in substance are new. All of them were put forward in the House of Commons, either in the Committee stage or during the Third Reading debate. So what we are doing in substance—and your Lordships have been asked to support this view—is to say that, despite the fact that the House of Commons has come to a conclusion on this matter, we claim the right, on a very broad issue which affects many millions of people, to throw it out and supplant it by our own views as set forward in the Amendments.
None of these Amendments is constructive in character; let us try to remember that. On a former occasion, when the War Damage Bill was before this House, some doubt was expressed whether the views I put forward did not mean in substance that this House had no right to pass Amendments at all. I tried to correct that. I have never taken that attitude. But I do take the attitude that where the House of Commons has committed itself to a serious measure of principle, this House is taking a very great risk and a very great liberty, however it may feel for constitutional reasons it is right to take that liberty, in challenging that view.
Most trade unionists will call these Amendments, if they are carried into law, the "blackleg's charter." For years the trade union movement has been striving to gain 100 per cent. organisation. Sometimes it is able to do it by persuasion. Sometimes it comes across a man or men who find a conscientious objection to paying the normal contributions of the union for the upkeep of the conditions that they are then enjoying. I have not heard of cases, although I do not say they do not exist, where a non-unionist has gone to his employer and said, "I do not wish to take these advances in wages which have been secured by the trade union by the process of collective bargaining at great expense. I do not wish to do that. My objections to trade unionism are so strong that I should infinitely prefer to forgo the advances, considerable as they may be, that I now enjoy through their efforts".
Of course, if this matter comes to a head, not only will the House of Lords 637 be challenging the Government of the day; it will also be challenging the trade union movement. I am not suggesting for one second that in a purely constitutional matter trade unionists are in the same category as the House of Lords. So far as I know, none of the noble Lords who has taken part in this debate up till now have any practical experience of this subject, certainly not when we come to deal with hundreds of thousands of men. They will not be in the front line at all; they will not be in the trenches; it will be the employers' organisations who will be there. And if the trade unions take up this challenge I know of no means in law—and although I am not a lawyer I know something about it—which can restrain bodies of men in sufficient numbers from fighting out an issue of this kind with their employers.
So what we are really being invited to do is to disrupt the relations which have been built up with organised employers over many years past. Many of those very employers operate the same rule requiring men to be in a trade union before they will risk, as it were, or before they consider it proper that they should engage in, a struggle with the trade unions representing their employees generally. I say this could lead to widespread strife, far wider than anybody here outside the industrial movement can appreciate.
Let me make it clear, having regard to the Rookesv.Barnarddecision, that I am not offering a threat; I am giving a warning. I am not suggesting the dismissal of the noble Lords who seek to support these Amendments; in fact some of them I regard with a measure of affection, much as I detest some of their political and industrial views. If we look at the Amendment by the noble and learned Viscount, Lord Dilhorne, what do we find? We find that it is wider than any of the others. It introduces a principle which, so far as I know, has not yet been contested, either in the other place or here; it has not been advocated, so far as I am aware. The particular phrasing that is used, although the general intention is similar to the Amendments discussed in the House of Commons, goes much wider than Amendments 3 and 4. This Amendment refers to any action which is made to secure "the termination of the employment of any person". 638 There is no suggestion of reasons, no talk about closed shops, nothing of that kind; it is that the mere fact of taking action which leads to the dismissal of a man would make the persons taking part liable.
§ VISCOUNT DILHORNE
When the noble Lord says "taking action of that kind", I hope he will make it clear that the action referred to is action that constitutes the tort of intimidation. It is not merely doing something to bring about a termination of employment. It is the fact of intimidation to bring about the termination of employment.
§ LORD CITRINE
This is what one expects with eminent lawyers, playing with words. If a body of men combine together and say to their employer, "We will not work with So-and-so and you should dismiss him", that will constitute an action for tort. Why should we play about with these things? We are dealing with serious issues. It may be that these debates will even get to the eyes of working people—I do not know whether they will—and it is just as well that we should use language that those working people understand.
I say that the Amendment moved by the noble and learned Viscount, Lord Dilhorne, is the widest that has yet come before either House. Are we to be put in the position that a body of men who have been consistently bullied by a manager can make no protests; cannot decline to work under that manager? If so, perhaps wording could be employed that would make that point clear. But from the Amendment it seems quite evident that it would be so. Any act of tyranny in the workshop which was resisted by the men to the point of the dismissal of the person concerned would bring those people within the position of being sued in an action for tort. I do not think there is any doubt about that.
Suppose, for example, there had been a succession of thefts in a particular office or works—and I am speaking of something that is a reality. I regret to say that it is a common occurrence in large businesses to find that some employees steal from other employees. Handbags of girls in offices are lifted out, and nobody knows where they have gone to. Even the greatest vigilance can scarcely 639 avoid that sort of action. I myself have been employed within recent years in circumstances where that has occurred. Lockers have been forced open by other employees. I have seen the evidence of that, and I have been ashamed that anybody calling himself a worker should resort to that sort of thing. But it takes place. It is one thing to know that a thing is taking place, but quite another to amass the evidence to prove it. Are we to say to the trade unions that the men who resent that kind of action, and who have good grounds for believing that a particular person is responsible, shall have as their only remedy the taking of action in court against him, and that they must be required to go on working with him? I say that that is utter nonsense. It will never take place, and nothing that this House or the other House can do will prevent men from resisting that kind of thing, when they are convinced that that is the only remedy open to them.
This sort of thing would apply whether a concerted action, a strike or whatever it might be, or the threat of a strike, was official or unofficial. I have never yet heard in the debates a suggestion that unofficial strikes and official strikes should be put in exactly the same category. There has been some measure of respect for the rights of those who are driven to official strike. There is far less respect—which I share—for those who instigate unofficial strikes. But this particular Amendment would not touch that point. Anybody, whether officially or unofficially engaged in such an action, would be liable for an action in tort. It is perfectly true that in those circumstances the employer could remove the manager from the department as the result of some so-called threat or, as I would prefer to call it, a warning. He could put him in another department, and still the workers would escape any danger from this. He could be demoted in various ways. But if he were dismissed, then it would follow that those regarded as responsible for his dismissal would be liable to an action in tort.
The noble and learned Viscount, Lord Dilhorne, said at the outset that he had not noticed that the trade unions were inhibited in any way since the decision in Rookes v. Barnard. In point of fact, I think he used language which seemed 640 to imply that unofficial strikes, for example, may have been rather more frequent; certainly, there is no suggestion that they have diminished: in other words, that contracts had been broken on these occasions as they were broken before, and apparently no one had suffered—no one had been prosecuted under Rookes v. Barnard. But that is no proof at all. The mere fact that a prosecution, or an action, has not followed, say, a strike of that kind, unofficial or whatever it may be, is no proof at all that it has not been the result of the coercion which the noble and learned Viscount so much deprecates. As I have said previously in this House, why do not the employers pluck up their courage, if they feel so indignant about unofficial strikes and about people breaking contracts, and sue the workers? Why do they not do that? Your Lordships all know the reason. I myself have attested it, and it shows the weakness of the law: that in practice it is quite incapable of widespread enforcement.
The Minister of Labour, Mr. Gunter, was quoted as having attested that victimisation had occurred, that trade unions have been involved in one way or another in this sort of thing. He went on to say that the trade unions should be above this. I am one of those people who like to see the cases that are referred to. When I was a trade union official I always tried to be sure of the merits of the case that had caused the trouble. It may be that there have been some cases without merit of any kind justifying strike action, or coercion may have existed; but it may be that in other cases there was an adequate explanation for the so-called victimisation.
Then, of course, we had, in the House of Commons and twice here, the repeated reference to Article 20 of the Declaration of Human Rights. I have said on previous occasions that when Article 20 was under consideration in Paris in 1948, prior to the Declaration becoming a fact, Her Majesty's Government's representatives voted against it, because they said it was incapable of enforcement. I did not hear any reference to that point, either from the noble Lord, Lord Conesford, or from the noble and learned Viscount, Lord Dilhorne. With their adequate facilities for research, surely they could have tested whether that was true or not.
§ VISCOUNT DILHORNE
Whether it is true or not, it does not seem to me in the least relevant. The fact is that the Government of that time accepted, and this Government accept, Article 20.
§ LORD CITRINE
I generally believe that a person who votes against a thing does not believe that that thing is a good thing. Perhaps I am wrong about that. If the noble and learned Viscount and I get cross talking over this Table I shall say some quite direct things that probably this House has not heard before. They may be enlivening our proceedings, but I will not be subjected to intimidation and interruption, which in point of fact are pointless.
I did not hear any reference at all from the noble Lord, Lord Conesford, whose diligence and capacity I deeply respect, to Article 22 of that Declaration. I cited it. I said that there was no reference whatever to trade unions in Article 20, and yet in Article 22 there were references to trade unions. Why the distinction? If it was intended that the Declaration of Human Rights, Article 22, should apply to the trade unions, why was it not so stated?
§ LORD CONESFORD
My Lords, just to correct the noble Lord, I think that when he says "22" he means in fact Article 23. It is paragraph (4) which mentions trade unions. I say, in all friendliness, that he is on a bad point if he suggests that the word "association" in Article 20 does not include a trade union. I should be most surprised if the advice of the noble and learned Lord the Lord Chancellor differed from mine on that point.
§ LORD CITRINE
That might be a quite proper strictly legal interpretation of Article 20. So far as my reference to Article 22 is concerned, I regret to say that I saw notice that this Bill was to come before your Lordships' House today when I was out of London and I had to hasten back, and I have no papers whatever to refer to. Even if I was in error in mentioning Article 22 instead of Article 23, my point remains a substantial one, whatever the number of the article may be. It is manifest that if it had been intended that trade unions should come within the purview of Article 20 they would have been referred to specifically. That is a matter of opinion, but 642 I hope that it is a matter of general importance.
Nobody has spoken about the freedom of the other men. They were terribly worked up about the question of the individual trade unionist, this noble fellow who is sometimes supported by Conservative Party funds. That has happened in my lifetime. Sometimes these individuals are able to fight a case right from the Law Courts up to the House of Lords on their own slender resources. God knows how they manage it! Some inquiry on that matter might prove interesting. Are you going to try to compel other men to work with people to whom they have a rooted objection? Where is your machinery for doing it? Do you want to put some declaration in an Act of Parliament with the knowledge that it cannot be carried into practice except in very limited circumstances? The more the law is brought into contempt by this kind of thing, the more likely it is that people will disregard the law. There are a good many people who do it nowadays, not in the trade union sphere but in other spheres. I do not believe that it is within the power of the law to deal with a number of these questions.
What is the position of the employer who makes it a condition of employment that all his workpeople must belong to a trade union, and that he will not start a man unless in fact he is a member of a union—what action can the law take against him? If a man to be taken into employment is told that before he enters employment he must join a trade union, what is the law going to do about that? Can it tackle that problem too? If so, the Opposition have a great deal on their hands. The union can make an agreement with the employees—and some do so—whereby an employer will employ only men who are members of the union. Are those agreements to be set on one side? If the Draughtsmen's Union had been better advised they could have avoided the consequences of Rookes v. Barnard, the case would never have arisen. However, they were not so advised. They had an agreement which, unfortunately, contained an escape clause—a clause which some of us, had we been handling the matter, would not have included. A union can make out a case for collective bargaining which is not related to an individual at all—not directed against any particular man—but 643 just lays down the principle that men in a particular shop shall be members of a trade union. I cannot see anything wrong at all with that principle. B.O.A.C. came near to doing so in an agreement they made which was subsequently brought into the Rookes v. Barnard action.
Do we want the trade unions to resort to all kinds of means to frustrate the effect of any such Amendment as is now before us? Do we want the unions to say to their members in plain language "Boys, give notice in the proper way. If it is a week's notice give notice and then walk out, and let the employer find out afterwards why you have walked out"? I do not want that. I have spent such a large part of my life in trying to build up a good relationship between employers and trade unions. I have tried in the past to get first-class, one hundred per cent. organisation on the employers' side as well as on the trade unions' side. How can one possibly enforce voluntary agreements to which the courts will not give backing unless there is an adequate organisation on both sides? For that reason I make no apology for being an advocate of one hundred per cent. trade unionism.
We have always in mind the position of the so-called conscientious objector. He is not envisaged in any of the Amendments. There is no limitation on the operation of the Amendments. If a man chooses to join a trade union and is dismissed these Amendments would make that a ground for action. There is no question that the man must be a conscientious objector. He may be a contribution-shirker, and if one man is to be allowed to get away with it how is one to differentiate between that case and half-a-dozen other men who suddenly evolve a conscience and think that they are not required to be members of a union? I must confess that from time to time I have been troubled in my mind about those religious people, whether they be Plymouth Brethren or whoever they may be, who by some fantastic reasoning think that it is against their religion to join a trade union. I do not know how provision could be made for them. I think that provision ought to be made for them to contribute to certain funds, which could be agreed to by central 644 employers' organisations and the T.U.C. In this way the real conscientious objector could be exempted from joining a trade union but would not escape the payment of an equivalent sum to some benevolent object.
Great play has been made about men being driven out of their employment, the door being closed against them, and the poor beggars trailing through the world with no prospect of ever working again. Let us get their position into perspective. Trade unionists number about nine million; the working population numbers over 24 million. Is there no avenue of employment left open to a man who is put out of work for not belonging to a trade union? Is he out of employment for ever with no means of sustenance?
Are we not hypocritical when we talk about the use of coercion by trade unions? Are we not all coerced in modern society, and rightly coerced in the majority of cases? I am coerced to pay taxes to be spent by a Government—not the present Government—which I bitterly resent, a Government which spends money in a way to which I very much object. Similarly, a man may object strongly to paying rates. As a matter of fact, all over the country in recent months groups of people have formed associations of ratepayers because they object to paying increased rates. But does anybody doubt that in the long run they will have to pay them? The whole mechanism of the law is geared to coercion. In a modern society it cannot help itself. All government, the anarchists say, rests on force. So it does. Ultimately the power of Government depends on the Army, the Navy, the Air Force, and police force or other force. But when it comes to the trade unions, well, they just have to shed any power of this kind: they have to be persuasive only. However convinced they may be that a man is a shirker in the sense in which I use the word, they cannot take action because the noble Viscount's Amendment and the Amendments of the noble Lord, Lord Conesford, and others would make that impossible. I make no bones about it. I know that throughout my trade union work coercion had to be used against certain people. I do not apologise for it at all—whether I apologise for it or not, it will go on just the same.
645 The State will coerce people to take life. What could be worse than that. In two wars, men who genuinely and consciously believed that it was wrong to take life were hauled up before all sorts of committees and courts and their motives were tested, tested in a way that sometimes seemed to me to be rather extraordinary. If it was so decreed, off they went and they had to participate in the job of taking the lives of people, when they had no feelings in their hearts either of the necessity or of what I would' call the justification for that. I am not joining that group; I am simply pointing a fact. So do let us think about the trade unions when we talk about coercion and the reasonable grounds for its exercise.
You cannot effectively maintain collective bargaining without very adequate trade union organisation, and my experience is that other countries have seen this and have been ready to adopt this coercion by law. New Zealand had an Act of Parliament for years which required workers who were subject to an arbitration award to be members of the appropriate union. The United States of America in the late war, and throughout the New Deal legislation, had a similar condition requiring men in a given shop to be members of the trade union catering for it. Also, as I said on the last occasion and I repeat now, Australia, while accepting the view of the conscientious objector, requires a conscientious objector to contribute a sum equal to his normal trade union contributions to the State funds, the national consolidated funds.
I conclude by hoping that this House is not going to challenge the House of Commons. We have enough constitutional trouble on our shoulders. I see faces opposite which, individually, I regard as genial and kindly, but in the mass I do not quite know. I sometimes wonder whether the doctrine which I detested, the doctrine of Karl Marx, of class struggle and class consciousness, is not instinctively applied by people who are not in the Labour movement and, perhaps, have never heard of it. Let us, after all, be a bit objective. If anyone here were in a trade union, would he be standing out for Amendments of this kind? I think not, and I hope the House will not do it. The noble Lord, Lord Conesford, has evidently changed his 646 view. On the last occasion he told us that he was not sure whether in fact this Bill that is brought before us would, as it were, completely remove the effects of the Rookes v. Barnard decision—I am paraphrasing and not quoting actual words. He referred to the use of the word "only"shall not be actionable … on the ground only".Those are the words he quoted and the words I endorse—
§ LORD CONESFORD
I think that the noble Lord misunderstood me, but I am sure that the noble and learned Lord the Lord Chancellor did not. I quoted the right honourable gentleman the Minister of Labour in another place, who stated that the object of this Bill was to reverse Rookes v. Barnard. I gave a technical reason why I was not quite certain that it did so. I did that because I think it is the duty of any lawyer to try to explain to the House what he thinks is the effect of the Bill as it stands. I also said that I did not propose to try to improve the Bill on this point, but I thought it my duty to bring the point to the attention of the Lord Chancellor.
§ LORD CITRINE
I entirely accept what the noble Lord, Lord Conesford, said. I know how conscientious he is in this matter. But if the word "only" appears in the Bill, as it does now, it follows there are other grounds besides that of inducement to break a contract or the actual contract of employment. I shall not argue that as I do not want to weary the Committee. But, believe me, feelings run deep in some of us when we see what may be the serious consequences of this change, and I implore noble Lords opposite to think twice before this challenge is laid down.
§ 4.54 p.m.
§ VISCOUNT MASSEREENE AND FERRARD
May I just intervene for three minutes, as I spoke on the Second Reading? The noble Lord who has just sat down, said that if these Amendments are carried this Bill will become known as the "Blacklegs' Charter". I would say that if these Amendments are not carried it will become known as the Blackmail Bill.
§ VISCOUNT MASSEREENE AND FERRARD
Yes it will—the blackmail that enables the unions to force an employer to injure a third party. The noble Lord raised another matter, and I see his point there, when he said that a great many trade unionists feel that it is unfair that a man who is a non-union man should have all the benefits of pay and everything else which the unionists have achieved in their long fight. But surely the employer has something to say. After all, the man who pays the piper should choose some of the tune. In all the speech of the noble Lord, Lord Citrine, he appears to have completely left out the rights of the employer. The employer can surely employ anyone he likes and, if he wants to, pay him £100 or even £500 a week. After all, it is the employer who has to find the wages. I really cannot understand the arguments of the noble Lord.
He also asked: why do employers never sue the workers if they break their contracts? What on earth would be the point of doing that? You would only run yourself into great expense, and you would get nothing out of it at all; and, of course, you would also create bad feeling. I should like to ask the noble and learned Lord the Lord Chancellor to clarify something. He was extremely kind when I made my Second Reading speech, and he replied at very great length. Perhaps I may quote from Hansard what the noble and learned Lord said when he was speaking regarding my observations on the closed shop. He said: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.After some further remarks the noble and learned Lord went on to say: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?—"[OFFICIAL REPORT, Vol. 267 (No. 85), cols. 80–81, June 15, 1965.]648 My Lords, I have always thought that the law was impartial regarding the rich or the poor, the strong or the weak.
§ VISCOUNT MASSEREENE AND FERRARD
I would say, by that reasoning, that if the majority wish to commit a felony, a sin, you must therefore alter the law to oblige them. I think you might as well say that, if the majority want to steal, you must therefore legislate to make stealing legal. I must apologise for keeping the Committee so long, but I should be extremely grateful if the noble and learned Lord could clarify these points for me. If the noble and learned Lord says that the majority must always be right, I have completely misunderstood the object of the law.
§ 5.2 p.m.
§ LORD BLYTON
I should just like to intervene in this debate to say to the previous speaker that he is far removed from the trade union world. I do not think he has ever participated in it, and—
§ LORD BLYTON
—he therefore speaks on this issue with a great lack of knowledge compared with those of us who have spent our lifetimes in the movement. He talks about the law being equal. The law is not equal. If the noble Viscount steals a loaf of bread to throw it at his chauffeur in vexation, he may get fined £10; but if, during my lifetime, I had stolen a loaf of bread to eat, I should have got fined £10, too. I am sure the law is not equal in that respect.
He says the employers never sue. He must live in a different world from me. I have been in court twenty times in my lifetime through the old coalowners suing us for damages because we made the pits idle in a trade or a wages dispute; and, naturally, as it was under a breach of contract, the judge had to award the damages they asked for. In the 'twenties, when they asked for £2 a day and we were getting only 6s. 6½d. a day for working the pits, we had to pay it back at 1s. a week, by judge's order. So it is silly to say that we have 649 not been charged with a breach of contract in the past, because in my lifetime I have paid many times; and sometimes it was proved justified, because we got a better settlement.
In my opinion this Amendment gives a licence to the blackleg to damage the trade unions in their fight against the employers to get decent wages. Do not let us be mealy-mouthed about this. That is what it means: that you are going to encourage the man who will not pay his union dues and who, if there is a trade dispute, will blackleg his fellow men. You are going to say that he has the right to go to the court and claim damages. This is an attack on the closed shop. Why should that be? If a closed shop agreement between the trade unions and the employers is negotiated—and, as I remember, the Opposition have always argued the sanctity of agreements; in the twenty years I was in the House of Commons the sanctity of agreements was the main thing of the argument against us—and if it is agreed that everyone should be a member of a trade union, why should there be a law to protect one individual from being a rebel and saying, "I am not accepting this negotiated agreement"? How can you expect industry to go on if you take up that attitude? I think that, in this respect, the whole Amendment is really not right.
I want to say to your Lordships' Committee now that if this Bill does not go through there will be trouble in the trade union field. They will not lie down to this—and I think the noble and learned Lord the Lord Chancellor was absolutely right in the last speech he made. If there are 2,000 men in a union and one is going to be awkward, you can expect the 1,999 to say, "We are not going to work with him; we are not going down the pit with him". What can the Opposition do? What can the employers do? I have known many a time when I have been faced with this situation, and the employer has said to me, "We are not having the pits stopped for one man." And, if he did not catch him on that, he could always catch him for a breach of the Mines Act. He would give him his notice, he would automatically disappear, and harmony would reign. I think that the Amendment moved by the Opposition is a destructive one, and I hope 650 your Lordships' Committee will defeat it today.
§ 5.6 p.m.
§ LORD MCNAIR
I have little to add to what has been said by my noble and learned friend Lord Wade. I have listened with great interest and attention to the speech of the noble Lord, Lord Citrine, because I know there is no man who has rendered greater services to the trade union movement than he has. He will forgive me, I hope, if I do not enter into argument with him on the constitutional relations of this House and another place, but I could not help feeling that if his view of that constitutional relation was widely shared by your Lordships, there are few of us who would trouble to turn up and take part in your Lordships' debates.
§ LORD MCNAIR
The greater part of the argument put forward by the noble Lord, Lord Citrine, was devoted to the closed shop. Now I am not going to argue the question of the closed shop, because I consider that that is one of the matters which will be discussed by the Royal Commission on Trade Unions which has been set up by the present Government. It is some time since we had a Royal Commission on trade unions, and I think that the present Royal Commission has some very valuable work to do.
As the Government have decided to establish that Royal Commission, and to refer all the questions affecting the relations between trade unions and employers' associations, and kindred matters, to a Commission of that character, my feeling is that the less that is said now, before that Royal Commission gets to work, the better. If I may use the expression sub judice in a somewhat extensive sense, the sort of matters we have been discussing to-day are within the scope of the matters which will be discussed by the Royal Commission. Therefore, the ideal thing would be to abstain from discussing issues that have been referred to that body. Nevertheless, I am absolutely persuaded by my experience that co-operation between trade unions of workmen and associations of employers is absolutely essential to the smooth working of industry in this country.
651 I spent four years of my life in the closest possible contact with the coal-mining industry. I have attended numerous meetings between the two sides of industry for the purpose of settling industrial disputes, and I have no hostility whatsoever to trade unions. I regard them as an integral part of the machinery of industry in this country. If it can be shown that the results of the Rookes v. Barnard decision is hampering this co-operation between the trade unions, on the one side, and the employers' associations, on the other, that it is having a bad effect on our industries, then there would be something to be said for a sort of emergency measure to remove that friction. But I am not aware that it can be said that the result of Rookes v. Barnard is causing that friction, and therefore I am not persuaded of the necessity of all the provisions in this Bill.
Much as I should like to talk about Rookes v. Barnard (because, as your your Lordships will understand, to a lawyer it is a fascinating decision) I will not do so. It is an extremely complicated decision. The issues raised by it, and even more those revealed by it, particularly in the speech of the noble and learned Lord, Lord Devlin, will require the closest possible examination by the Royal Commission; and I think it would be wrong in any way to attempt to forestall their scrutiny of the present state of the law.
The Government have taken the view that it is necessary for the smooth working of industry to introduce this Bill. I should be prepared to accept that, provided that I felt sure that we had some guarantee that there would not be another Mr. Rookes treated in the same way as the Mr. Rookes who will now go down to history as the plaintiff in Rookes v. Barnard. If the Royal Commission should eventually decide that all the other Mr. Rookes's must be treated in the same way, a different situation would arise. But, unless and until the Royal Commission endorse the treatment that was received by this Mr. Rookes, I am not prepared to be a party to anything that might facilitate a repetition.
If any noble Lord will read the speeches of the noble and learned Lords 652 in deciding the case of Rookes v. Barnard in this House, I think he will come to the conclusion that there is only one word that describes the action of the trade union in question towards Mr. Rookes. That is the word that was used by the Minister of Labour on the Second Reading of this Bill in another place, and used to-day by the noble and learned Viscount, Lord Dilhorne, in his opening speech—namely, victimisation. There is no other word for it. In the hope of preventing repetition of that treatment, unless and until it should be endorsed by the Royal Commission on Trade Unions and Employers' Associations, I would urge the Committee to adopt the Amendment moved by the noble and learned Viscount, Lord Dilhorne, which will have the support of my noble friends on these Benches.
§ 5.14 p.m.
§ LORD LINDGREN
We have had a wide-ranging debate. The noble and learned Viscount's Amendment would mean that the Bill would not apply to any threat which was intended to secure the dismissal of any person from employment. The Amendments of the noble Lords, Lord Henley, Lord Wade, and Lord Conesford, are similar, as has been stated already, in that a threat to force a person to belong to a trade union would normally involve a threat to secure his dismissal from his employer. Therefore, with the Committee's permission I shall try to deal with the debate in a general manner but if any noble Lord wishes to interject I shall be only too happy to try to deal with the interjection.
I would certainly agree that we ought to look carefully at cases which involve the use of the strike weapon against an individual. I think we all feel that there are dangers in a situation where a powerful institution like a trade union can exercise its power against a single person. Of course, such cases are not at all common, but the issues they raise are of wide significance. But that does not mean that it would be sensible to try to deal with this particular issue in isolation. The feeling that the relationship between trade unions and the individual ought to be examined was one of the Government's main reasons, as the noble and learned Lord, Lord McNair, has just suggested, for setting up the Royal Commission on Trade Unions and Employers' 653 Associations. The question will undoubtedly play a large part in the Royal Commission's work and it is closely connected with other matters which will also bulk large in its inquiries. I would urge the Committee that it would not be advisable to pick out this one point and attempt to deal with it out of context in this Bill. We ought to await the Royal Commission's report so that action can be taken over the whole field, with proper regard to all the problems that arise.
We must remember that the problem of disputes between trade unions and individuals is not a simple one. Of course, individuals have their rights: I would never deny that. But, as has been already pointed out, not only on Second Reading but here to-day, majorities also have their rights. When some of us, as trade unionists, suffered victimisation at the hands of the employers, we never heard any squeals about it. I have sympathy with a man who has religious objections to joining a trade union. I do not share those objections and I do not think them right. But I have no sympathy for the individual who in most cases is too mean to pay contributions. In 99 cases out of a 100 on the shop floor, in the office, in the workshop and in the mine, the non-unionist is the mean "blighter" who will take everything that everybody else gets for him and will make no contribution towards their cost; and there are heavy costs involved in trade union organisation. If there is to be legislation to deal with these issues of industrial relations it must strike a balance between the two: the rights of the individual and the rights of the majority. It is going to be a poor world if in a large number of cases the minority are going to rule the majority.
I think, too, that there are a number of difficulties which the noble and learned Viscount's Amendment would raise. I have said before that the effects of Rookes v. Barnard are not confined to strikes to enforce the closed shop. The same applies to this Amendment. It would extend wider than to disputes over the closed shop. For instance, when demarcation disputes arise, very often they take the form that one group of workers demand that certain work should be reserved for them and not given to other workers. This may involve the 654 termination of the employment of other workers. The Amendment might therefore come to apply in the case of some demarcation disputes. I am not saying that demarcation disputes are a good thing, or that they do not need to be examined, but I am not at all sure that it would be wise for the law to be brought into demarcation disputes. If that is what the noble and learned Viscount is suggesting, I should require a lot of convincing that it is right. Here, again, is not the sensible thing to do to let the Royal Commission have a chance to study the problem?
There is another point. Even if the noble and learned Viscount's Amendment were adopted, it would by no means give complete protection to the individual. This has been suggested by a number of noble Lords on this side of the Committee to-day. The effect would be that it would be actionable to try to procure the dismissal of a person by the threat of a breach of contract. What about the threat of something which is not a breach of contract for—instance, working to rule? Evidently the noble and learned Viscount is not concerned with what is equally penalising, an action by a group of workers against an employer which is not a breach of contract, because the employer has set the rules to which the workers work. It may be a more effective way even than a strike for compelling an employer to dismiss a man, but the man would not have any right of action because there would not have been the threat of a breach of contract. I think this demonstrates how much better it would be to deal with these questions as a whole instead of attempting to prejudge them now, and that we should wait for the Report of the Royal Commission.
The noble and learned Viscount asked whether it was part of the normal day-to-day activities of a trade union to secure the termination of an individual's employment by intimidation. When I am asking the Committee to reject an Amendment, it is part of my job to be as passive as I can, but I wish that a good many lawyers who ask these academic questions could have spent a couple of years on the shop floor; then perhaps they would not be so pedantic about it. Certainly it is not something 655 that trade unionists are constantly engaged in.
I said before that disputes of this kind are very few in number. I think that the noble and learned Viscount forgets that the effects of the Rookes v. Barnard dispute are not confined to closed shop disputes but extend to other disputes as well. To-day many trade union leaders believe that when in negotiation, if by chance, or by a slip of the tongue, they threaten to call a strike, or suggest that a refusal by the employer to concede would mean the withdrawal of labour, that would create the intimidation which might lead to an action of this kind. We are dealing only with the main Amendment. I hope that it will be rejected, if it is pressed, and that we can deal with the other Amendments subsequently.
§ 5.25 p.m.
§ VISCOUNT DILHORNE
I should like to reply shortly to those who have criticised this Amendment. I would say first to the noble Lord, Lord Lindgren, that if the Amendment is accepted it is still left in the Bill and made perfectly clear that the threat of breaking a contract made in the course of ordinary negotiations about wages, hours and all that, will be perfectly lawful. This Amendment bites only on cases where there is intimidation and intimidation by threats. My Amendment has been criticised in some quarters as being too wide and in others as being too narrow. I drafted it deliberately in the hope that it would not give rise to general controversy about closed shop or demarcation disputes, or matters of that kind, because all I am seeking to-day, pending the Report of the Royal Commission, is to preserve the status quo.
Your Lordships will remember that the complaint of Mr. Rookes was that he had suffered the loss of his employment by reason of threats made by employees to his employer to terminate their employment in breach of contract unless Mr. Rookes was dismissed. That conduct
§ was held to constitute the tort of intimidation and not to be protected by Section 3 of the Trade Disputes Act. I have drawn this Amendment to seek to ensure that between now and the Report of the Royal Commission other "Mr. Rookeses", if they are treated in the same way, will not be deprived of a remedy similar to that obtained by Mr. Rookes. That is the issue on which we are now to vote, and nothing else. There is no question of demarcation disputes, or closed shops, but there is this question that when an employer is intimidated into terminating a contract of employment with one of his workmen, that workman shall not be without redress.
§ I have listened with the greatest interest to what was said by the noble Lord, Lord Citrine. I do not wish to tempt him to rise to his feet again, but I must say that I ask your Lordships to join with me in not being intimidated by his threats or warnings of the consequences of accepting this Amendment—
§ LORD CITRINE
I am not suggesting that we are threatening the noble and learned Viscount's pension. He will not suffer loss.
§ VISCOUNT DILHORNE
I think I should be wiser to ignore that interruption.
What I am asking your Lordships to do is to vote in support of what I think is an important principle, and at the same time to preserve what is the present legal position until we get the Report of the Royal Commission.
§ 5.30 p.m.
§ On Question, Whether the said Amendment shall be agreed to?
§ Their Lordships divided:—
§ Contents, 77; Not-Contents, 53.657
|Aberdeen and Temair, M.||Auckland, L.||Brecon, L.|
|Abinger, L.||Baden-Powell, L.||Brocket, L.|
|Ailwyn, L.||Barrington, V.||Brooke of Ystradfellte, B.|
|Albemarle, E.||Bessborough, E.||Byers, L.|
|Ampthill, L.||Bossom, L.||Carrington, L.|
|Amulree, L.||Boston, L.||Clwyd, L.|
|Conesford, L.||Fraser of North Cape, L.||Ogmore, L.|
|Craigton, L.||Goschen, V. [Teller.]||Powis, E.|
|Cromartie, E.||Greenway, L.||Ridley, V.|
|Cullen of Ashbourne, L.||Grenfell, L.||Rowallan, L.|
|Denham, L.||Hastings, L.||St. Aldwyn, E. [Teller.]|
|Derwent, L.||Henley, L.||St. Helens, L.|
|Dilhorne, V.||Horsbrugh, B.||St. Oswald, L.|
|Drumalbyn, L.||Howard of Glossop, L.||Sandys, L.|
|Dudley, L.||Hurd, L.||Selkirk, E.|
|Dundee, E.||Lambert, V.||Sinha, L.|
|Ebbisham, L.||Latymer, L.||Somers, L.|
|Eccles, V.||Lothian, M.||Soulbury, V.|
|Egremont, L.||McCorquodale of Newton, L.||Strang, L.|
|Elliot of Harwood, B.||McNair, L.||Strange of Knokin, B.|
|Emmet of Amberley, B.||Massereene and Ferrard, V.||Suffield, L.|
|Erroll of Hale, L.||Merrivale, L.||Swinton, E.|
|Exeter, M.||Milverton, L.||Terrington, L.|
|Falkland, V.||Molson, L.||Teynham, L.|
|Forster of Harraby, L.||Montgomery of Alamein, V.||Wolverton, L.|
|Fortescue, E.||Moyne, L.|
|Addison, V.||Greenhill, L.||Phillips, B.|
|Archibald, L.||Haire of Whiteabbey, L.||Plummer, B.|
|Attlee, E.||Hampton, L.||Rhodes, L.|
|Beswick, L. [Teller.]||Henderson, L.||Royle, L.|
|Blyton, L.||Hilton of Upton, L.||St. Davids, V.|
|Bowden, L.||Iddesleigh, E.||Samuel, V.|
|Bowles, L. [Teller.]||Kennet, L.||Segal, L.|
|Brockway, L.||Kirkwood, L.||Shannon, E.|
|Brown, L.||Latham, L.||Shepherd, L.|
|Burden, L.||Leatherland, L.||Snow, L.|
|Burton of Coventry, B.||Lindgren, L.||Stonham, L.|
|Champion, L.||Llewelyn-Davies, L.||Taylor, L.|
|Chorley, L.||Lloyd of Hampstead, L.||Walston, L.|
|Citrine, L.||Longford, E. (L. Privy Seal.)||Wells-Pestell, L.|
|Crook, L.||Mitchison, L.||Williams, L.|
|Francis-Williams, L.||Morris of Kenwood, L.||Williamson, L.|
|Gaitskell, B.||Morrison, L.||Winterbottom, L.|
|Gardiner, L. (L. Chancellor.)||Peddie, L.|
On Question, Amendment agreed to.
§ Resolved in the affirmative, and Amendment agreed to accordingly.
Page 1, line 5, at beginning insert ("Save as aforesaid").—(Viscount Dilhorne.)
§ LORD LINDGREN
In view of the previous vote, and the fact that this is consequential on that vote, the Amendment will not be opposed.
LORD CONESFORD had given notice to move, after subsection (1) to insert:
( ) Notwithstanding anything contained in the last foregoing subsection, an act done as aforesaid shall not cease to be actionable, if done for the purpose of compelling a person to become, to continue or to cease to be a member of a trade union or other association, or of punishing him for his refusal so to do; nor, if done for that purpose, shall it cease to be capable of giving rise to an action of reparation.
§ The noble Lord said: In view of the fact that we have made an important change in the Bill, I think we should consider the Bill in its present form between now and the Report stage, and on the present occasion I do not propose to move this Amendment.
Page 1, line 15, at beginning insert ("Save as aforesaid").—(Viscount Dilhorne.)
§ 5.42 p.m.
§ LORD CONESFORD moved, in subsection (2), to leave out "six months" and insert "one year". The noble Lord said: This is a small Amendment on a 659 different point. The Bill as originally drawn would have applied to all proceedings commenced after the Royal Assent, even if the cause of action had already arisen. By an Amendment moved by the learned Attorney General on the Report stage in another place, the plaintiff is given six months' grace to start his action. But the cause of action must, of course, have arisen before the passing of the Bill into law. This was an eminently proper Amendment to prevent the Bill from being in effect retrospective. Noble Lords will find the brief discussion in which only the Attorney General and his immediate predecessor took part, in cols. 1293 to 1301 of the Commons Hansard of May 18, 1965.
§ We welcome, as did the Opposition in another place, the action of the Government in putting this into the Bill. The sole question raised is whether the proposed period of six months is enough or whether a longer period ought to be provided. My right honourable and learned friend Sir John Hobson thought that three years would have been the proper period. I am not proposing anything of that kind. I am proposing a compromise period of one year, and I hope the Government may be willing to accept it. On balance, I believe it will do more justice to possible plaintiffs, without detriment to the aims of Her Majesty's Government.
§ I have no intention of engaging in a long discussion of the principles underlying the proper period of limitation. I will merely point out what I do not think will be disputed in any quarter, that the period of six months, though not unprecedented, is an exceptionally short period to lay down. It is true that there is a precedent set by the Law Reform (Miscellaneous Provisions) Act, 1934, which provided that proceedings in tort against the estate of a deceased person shall have this period of limitation. There is also a precedent under the Truck Acts. There was another precedent, but we have wisely swept it away. There used to be a six months period protecting public authorities, but that was widely found to produce some injustice and bad consequences, and that period has been done away with for that purpose.
§ The normal period for personal injuries is now three years, plus additional time that can be added in certain cases, 660 should persons be under disability or the cause of action have been concealed and things of that kind. I can fully sympathise with the view of the Government that to provide in this case the period of three years, though incapable of extension on the grounds I have mentioned, would be too long a period, but I suggest that six months may be too short. If I may remind the Committee of the steps that have to be taken, not only must the plaintiff become aware of all the facts, but explore whether he is entitled to or can obtain legal aid, and find a solicitor who thereupon conducts further investigation.
§ All that takes time, and I think that six months may be so little for this purpose that, should the Government insist on this limit, it may result in defeating their own purpose, because so many of these enquiries may be incomplete and there may be a number of what I may call protective writs, the plaintiff taking out a writ before the six months expires and before he has fully investigated the difficult problems of law and fact to decide whether he is entitled to an action. That may produce a number of writs which, if there were more time given, up to a year, would in many cases be avoided, because further investigation might reveal the fact that there was not a case which the plaintiff would be well advised to pursue.
§ I move this particular Amendment in no spirit hostile to the Government or to the Bill, but in the hope that the noble and learned Lord the Lord Chancellor will consider this matter fully, if he has not already done so, and that if he comes to the conclusion that there is something in my point, he may give effect to it. Should be agree with my point I think my Amendment is apt. I may say that I have no intention on this occasion of pressing it to a Division. I move it in order to bring the matter fully to the attention of the Lord Chancellor; and it is a genuine attempt to improve the Bill. I beg to move.
Page 1, line 18, leave out ("six months") and insert ("one year").—Lord Conesford.)
§ 5.47 p.m.
§ THE LORD CHANCELLOR (LORD GARDINER)
As the noble Lord, Lord Conesford, has rightly said, it was originally considered that the Bill should apply 661 to all proceedings commenced after it had received the Royal Assent. This would have had the advantage that the present uncertainty about the legal position of trade unions which has arisen from the Rookes v. Barnard decision would have been cleared up as soon as the Bill become law. But the Bill was amended to provide the six months period of grace in a desire to be absolutely fair to potential plaintiffs. It was pointed out that if a right of action accrued to a plaintiff shortly before Royal Assent he might lose that right of action under the Bill as originally drafted because he had not had time to obtain legal advice and pursue his right before the Bill passed into law. This possibility was eliminated by the Amendment adopted in another place.
On the question of whether six months is long enough to free potential plaintiffs from this possible difficulty, this is a matter which the Government have considered with great care. Even if the plaintiff has not obtained a legal aid certificate before commencing his action, I am advised that six months is a fully sufficient allowance of time, and that in any ordinary case six weeks is enough for the obtaining of a legal aid certificate. I am fully satisfied, therefore, that there is no question of any potential plaintiff losing his right of action because the period of six months is not enough. After all, all he is required to do in the six months is simply to issue his writ.
But we have to consider not only the position of potential plantiffs; we have to be fair to potential defendants. The principal object of the Bill, after all, is to dispel the uncertainty, particularly in trade union circles, about the present state of the law, which is liable to hamper trade union officials in their activities. It is desirable that the period of grace should not be made longer than is reasonably necessary, so as to avoid prolonging unnecessarily the time during which trade union officials may still be in doubt as to whether legal actions might be brought against them.
The period of grace, of course, applies only to proceedings in respect of acts done before the Bill receives the Royal Assent. But the anxiety that actions might be brought in respect of such acts—perhaps acts long past—is liable to have a disturbing influence on industrial relations. As my right honourable and 662 learned friend the Attorney-General said in another place, the principle that long dormant claims have more of cruelty than justice in them ought to be particularly applicable to industrial relations matters. So in order to ensure that the Bill will achieve its purpose, I suggest it is better to confine the period of grace to six months, rather than to extend it to a year. As the noble Lord, Lord Conesford, has already pointed out, there are existing precedents for a limitation period of six months in the Law Reform (Miscellaneous Provisions) Act, 1934, and also in the Truck Acts, 1896. It may be particularly desirable, from the point of view of the difficulties of potential defendants, to limit it to six months rather than twelve months because of the Amendment which has now been carried.
I remember a strike which took place because the men refused to go on working with a particular man. He had interfered with a little girl who was the daughter of one of his mates. He was not sent to prison; he was either put on probation or fined, I forget which. But industrial relations are like that. No doubt the men ought to have said, "Of course, we must accept that whatever a court has decided is the right thing to do is in fact the right thing to do", and no doubt they should have shaken his hand when he came back from the court. But they just said that they were not going to go on working with that man. That, the noble and learned Viscount, Lord Dilhorne, says, was intimidation, and the law will now be in this curious state as the result of the Amendment: that if in a case like that the men simply strike, that is all right, but if the trade union official tells the employers, "The men are going to go on strike if you do not get rid of that man", then not the men who are striking, but he who has told the employers what the position is, is liable to unlimited damages in tort and, particularly in view of the fact that the strange results which this Amendment will have and the difficulties it will cause, it is all the more desirable that those who have to work in this field should achieve some degree of certainty that if the plaintiff is given six months after the Bill receives the Royal Assent in which to issue a writ, that is being perfectly fair to him. It is on those 663 grounds that the Government are unable to accept this Amendment.
§ LORD CONESFORD
I thank the noble and learned Lord the Lord Chancellor for his considered reply. I think perhaps I ought to say, in the interests of my noble and learned friend Lord Dilhorne, that I imagine that neither he nor I accept quite what he said about the result of the last Amendment. But as regards the Amendment which we are at present discussing, my fear was that the Bill, as it stands, might not quite have the effect the noble and learned Lord thought, because I thought it might cause a good many protective writs, as I might put it, to be put in at the last moment. Nevertheless, I am grateful to the noble and learned Lord, who has obviously considered the matter. As I said originally, I do not propose to press my Amendment and I ask leave to withdraw it.
§ Amendment, by leave, withdrawn.
§ Clause 1, as amended, agreed to.
§ Remaining clause agreed to.
§ House resumed: Bill reported with the Amendment.